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.
9 Comments
Alaska needs to put peaceful SECESSION from the Union that has captured Alaska on the voter ballot. Our Statehood was not Constitutional that required the Territory to vote to give everything to the feds including our sovereignty, and as a result we are being oppressed and denied our Constitutional protections. We should be able to vote to peacefully secede from the Union under the power of our 10th Amendment.
No power was given to the US federal government to prohibit secession, and secession was not a prohibited power to the States, so it’s a reserved power to the States and People. This Country was built from seceding, as will Alaska’s future be built on seceding, secession, separating-basically all the same thing.
I would like to see the convention convened, and I would want the Permanent Fund constitutionally defined and protected from raids by a greedy legislature. They always seem to think that they can spend OUR money better than we can.
It is already constitutionally defined, what we need is to (state) constitutionally ban abortion
Innoway do I agree. Here’s why. ALL political power resides with the judiciary. Let that sink in for a bit.
Yes. I absolutely agree convention convened needs to happen.
Let’s Gather somewhere (where would you like?) In August to get a sense of agenda and delegates we would like for attendees. NAMES IN A HAT; draw out three per area; they are the ones. Then they return Alaska to the US Constitution. Why not.
This will go the wrong way…, the communist democrats will call the establishment Republicans racist or conspiracy theorist and they will go to the corner and urinate on their self while the Communists change the Constitution to look like Kim Jong Un and Bruce Jenner wrote it..
Establishment Republicans are friends with the commies, the name calling is just for show. The only “conspiracy theorists” are the ones calling it. Projection is real with these commies, they follow Alinsky’s rules for radicals to a T.
This of course is why we have to fight. Laying down to capitulate has never gone over well with authoritarians; nothing is ever enough for them. A constitutional convention should happen.
Thank you for writing this. I must point out that there’s a serious flaw in the narrative, however. During the time of the 1970 elections, Alaska had a secretary of state, not a lieutenant governor. Voters in that election year approved a constitutional amendment changing the title. That amendment was not thorough, so references to the title of secretary of state remain in the constitution. That is a minor detail, though. At the time of the 1970 elections, Red Boucher was finishing his second term as mayor of Fairbanks and would be elected lieutenant governor that year. Those elections were actually overseen by Bob Ward, a Hickel cabinet member who ascended to the office when Hickel became Interior secretary and Keith Miller ascended to the office of governor. Miller and Ward lost to Bill Egan and Boucher for election to a full term. As Boucher held the office following the election, his name would have appeared on any lawsuits, but he did not oversee that election as you claim here.