Pa. lawmakers pass proposed constitutional changes rebalancing powers among governmental branches
This global coronavirus pandemic has exposed how much power the executive and judicial branches of state government can hold over the legislative branch, particularly in emergencies — and in the minds of the lawmakers, it’s time for some reshifting.
Some proposed changes to the state constitution were approved last week by the Legislature to assert themselves as a co-equal governmental branch by giving state legislators more say during emergency declarations.
Another proposed constitutional amendment aimed at providing more geographic diversity on the state’s appellate courts would give legislators the power to draw up maps establishing judicial districts from which the state’s appellate court judges and justices are elected.
Supporters of the proposed amendments maintain these reforms are intended to put these key decisions in the hands of elected state officials who are closest to the people or voters themselves. Democratic opponents countered they saw both measures as political power grabs by the Republican majority.
The proposed constitutional changes have completed the first leg of the constitutional amendment journey. Identical legislation would need to be approved again by both the House and Senate in the 2021-22 legislative session that begins in January.
If it gains both chambers’ support, it would go to the voters for approval. Gov. Tom Wolf would have no opportunity to veto legislation containing a proposed constitutional amendment.
Republican lawmakers have been frustrated with Mr. Wolf’s COVID-19-related restrictions, a recent state Supreme Court ruling that rejected a legislative effort to end the governor’s disaster declaration and other appellate court battles they lost. Democrats hold a majority on the state Supreme Court.
Given all of those factors, it’s possible voters could be asked to consider a ratification vote on these amendments as soon as the spring primary.
Specifically, the proposed constitutional amendments would:
• Limit a governor’s disaster declaration to 21 days. Currently, those declarations last 90 days. It
would allow the General Assembly to extend a disaster declaration past that time frame upon its expiration, but a governor would not be permitted to declare a new state of emergency for the same reason without the General Assembly’s consent.
• Clarify a constitutional provision to allow the legislative branch to terminate or extend a disaster declaration through a majority vote of both houses through a concurrent resolution that would not require the governor to sign off on it.
• Provide protection against racial or ethnic discrimination.
• Move to regional elections of Commonwealth and Superior judges and Supreme Court justices, who currently are elected on a statewide basis. Lawmakers would be in charge of drawing the judicial district regional boundaries. Judges would be required to be residents for at least a year of the district they represent.
The debates
During Wednesday’s Senate committee debate on limiting a governor’s emergency disaster declaration to 21 days, Senate Democratic Leader Jay Costa, of Forest Hills, said shortening the timeframe to three weeks from the current three months would make it impossible for a governor to do what needs to be done in a disaster.
“The work Governor Wolf and [state Health] Secretary [Dr. Rachel] Levine have done with regard to managing this pandemic has been tremendous,” Mr. Costa said. “To limit their ability to be able to do so before coming back to the Legislature to get permission to be able to continue to be able to do that to me is extremely unreasonable.”
Senate Majority Leader Jake Corman, R-Centre County, countered that argument, saying given the recent court decision he considers this amendment to be appropriate. Further, he said he believes the General Assembly has the ability to work with a governor to provide whatever resources are needed in emergencies.
“Right now, we have a unilateral government: the governor. That’s it. What the governor says goes. And I don’t think any designer of democracy, at least representative democracy, considered that,” Mr. Corman said. “I think this is a time for us to stand up this institution that we all serve.”
Sen. Kim Ward, R-Hempfield, who sponsored the legislation, agreed that the way state government has functioned through this pandemic has “created a backslide of our representative republic from athome orders to school closings to business shutdowns, all of these decisions have been made unilaterally without legislative input.”
But Sen. Sharif Street, DPhiladelphia, said he sees this proposed constitutional amendment as having the potential of wrongly giving the majority party that controls the House and Senate the authority to end a disaster.
During the House debate on this same proposed amendment on Tuesday, Rep. Russ Diamond, R-Lebanon, argued that reasserting the legislative branch’s authority in those situations is necessary to restore checks and balances between governmental branches.
Opponents in that chamber, meanwhile, called it an unwise decision. Rep. Malcolm Kenyatta, D-Philadelphia, said it creates the potential for an untenable situation in times of emergency.
The House passed this measure last week by a 11586 vote. The Senate voted 33-17 last week to approve the proposed amendment.
Selecting judges
The other constitutional amendment dealing with switching to regional elections of appellate court judges was just as controversial.
It would divide the state into nine Commonwealth Court districts, 15 Superior Court districts, and seven Supreme Court districts. Each region would be required to have as equal as possible population and each district would be required to be compact and have contiguous geographical boundaries.
Supporters argued that 11 other states select appellate judges in this way but Sen. Vincent Hughes, DPhiladelphia, pointed out none elect their state Supreme Court justices through regional elections. He referred to the measure as “judicial gerrymandering” and a “pure political power grab” by the Republican majority that controls the House and Senate.
Sen. Judy Ward, R-Blair, said it was offensive to her to hear opponents call it judicial gerrymandering.
“This is about fairness,” she said. “Fairness for rural parts of the state to get a fair shake to deal with their issues on a fair basis with judges who understand their rural issues.”
Sen. Kristen PhillipsHill, R-York County, elaborated on that point during Monday’s Senate committee discussion of the proposed amendment. She said the current statewide election of appellate court judges has resulted in her home county not having a judge or justice serve on the Commonwealth, Superior or Supreme Court bench in 51 years. Meanwhile, she said 55% of all judges came from Philadelphia and Allegheny counties, despite the fact those counties make up 22% of the state’s population.
Sen. Katie Muth, DMontgomery County, argued this proposed change “disenfranchises voters in the commonwealth by limiting their vote to one member of each appellate court” and takes away their ability to vote for all appellate judges.
The Senate narrowly voted 26-24 on Wednesday to approve this proposed constitutional amendment. The House passed it in December by a 102-95 vote.