Alaska’s Constitution has a built-in timetable that asks voters, every 10 years, whether there ought to be a constitutional convention, or “con-con,” to re-write or modify how our state government operates. The exact wording is found in Article XIII, Section 3:
If during any ten-year period a constitutional convention has not been called by the legislature, the lieutenant governor shall place on the ballot for the next general election the question: “Shall there be a Constitutional Convention?”
There has been some trouble in this matter, conveniently ignored, and – surprise! – it involves the Alaskan judiciary. In 1970 Lt. Gov. Red Boucher, a conservative Democrat and founder of Alaska’s famed summer baseball league, framed the con-con question like so: “As required by the Constitution of the State of Alaska Article XIII, Section 3, shall there be a constitutional convention?”
…no system can perfectly read the will of the people, either through their representatives or by that purest example of democracy, through the referendum.
According to the Citizens’ Guide to the Constitution, here was the situation:
“The outcome was a very narrow affirmative vote, 34,911 to 34,472. Opponents of the convention sued, claiming that the wording of the ballot proposition biased the vote in favor of the measure by implying that the convention, rather than the vote, was required by the constitution. The courts agreed and threw out the election results (Boucher v. Bomhoff, 495 P.2d 77, 1972).”
Let that sink in for a moment: the judiciary, obviously unable to poll all 70,000 voters, made their own judgment based on what? Tea leaves? Crystal balls? Man-on-the-street interviews? Newspaper editorials? No matter. Like all the recent overthrows of the State Constitution, they proved once again that their power goes unchallenged, and therefore unlimited, and able to defy the Legislature, executive and will of the voters.
It must be admitted, however, that while the judiciary was constitutionally wrong, they were likely factually correct. Boucher was empowered to frame the question and he was being overly officious. It unquestionably confused the voters into thinking that the convention must be held. But if so, then why ask the voters? It was an absurd situation and demonstrates that even with the best and most honest of intentions, no system can perfectly read the will of the people, either through their representatives or by that purest example of democracy, through the referendum.
But if such a snafu was true, there was and is a constitutionally provided solution already in place.
We read: “… delegates to the convention shall be chosen at the next regular statewide election, unless the Legislature provides for the election of the delegates at a special election. The lieutenant governor shall issue the call for the convention.”
This places the tactical operation of a con-con squarely into the hands of the Legislature and executive authorities, not the judiciary. The con-con is not self-activating. This means that although the wording of the referendum likely caused some confusion, the Legislature had a full two years before it was constitutionally required to have the delegates chosen, which means it could have delayed the convention in order to re-load the referendum for a clearer re-wording.
ALASKA WATCHMAN DIRECT TO YOUR INBOX
And why would the Constitution give to the lieutenant governor the power to call the convention to order? Again, it is not self-activating. Well, maybe because of confusion. Boucher himself, an incredibly honest and transparent man, could have announced a reluctance to call the convention, and then request the Legislature to re-submit the question with Boucher re-wording it.
Yes, the judiciary’s decision saved the state lots of time, money and frustration. But more importantly, to its credit the Legislature did place before the voters the re-worded question in 1972 where it was thumped 55,000 to 29,000. We would have lived happily ever after, without making the judiciary the god and guru of all-things-constitutional.
But consider the precedent established: the judiciary can do anything it wants, even defying a statewide referendum.
In 2022, Alaska will have the chance to vote on the question posed in Art. XIII, Sec. 3. The template of a proposed constitution was forged 10 years ago by conservative Republicans and Alaskan Independence Party members, and can be viewed at www.akip.org. It is incomplete but provides a slate of ideas for a far more limited state government and one which would hold the federal government to its own constitutional limits. It will be left for a con-con to accept, modify or reject such ideas.
In part two we will discuss how delegates would be chosen, as well as the dangers – and opportunities – that a con-con might create.
The views expressed here are those of the author.