Our country's first president, George Washington, in his Farewell Address on Sept. 17, 1796, said:
"The basis of our political system is the right of the people to make and to alter their constitutions of government."
Ballot Measure 2 is an amendment to our state constitution that is intended to protect the right of the people of Alaska to amend their state constitution and to reaffirm our constitutional separation of governmental powers. Placing Ballot Measure 2 on the ballot was approved by a bipartisan group of over two-thirds of the members of the Alaska Legislature. This amendment is necessary because in the 1999 Bess v. Ulmer case the Alaska Supreme Court adopted a confusing new test of when the court will allow Alaskans to vote on constitutional changes. This new test will severely limit the right of Alaskans to amend our constitution.
The state constitution provides that Alaskans have the power to propose changes to the state's constitution by two methods. A constitutional convention may propose amendments, or the Legislature may propose amendments. In either event, the proposed changes must be approved by a state-wide vote. Since statehood, Alaskans have voted to approve 25 legislatively proposed amendments, while voting three times against holding a constitutional convention. The court said in Bess that, from now on, if it views a proposed constitutional change as "qualitatively or quantitatively" excessive, it cannot be accomplished by an "amendment" proposed by two-thirds of the legislature, but instead is a "revision" and must be proposed by a constitutional convention.
This subjective and vague and confusing test gives far too much discretion to unelected judges and effectively puts Alaskans, in the words of former Attorney General Charlie Cole, in a "constitutional straight jacket." Alaskans should not be forced to hold lengthy and expensive constitutional conventions to make vitally needed single-subject changes to our constitution.
Examples of past successful amendments that likely would now fail the court's Bess test are the Right to Privacy Amendment (1972) and Limited Entry Amendment (1971). Last year, expert testimony was received by the Legislature that the proposed subsistence amendment would also fail this new test.
Ballot Measure 2 replaces the court's subjective and confusing test with a simple, easy to understand alternative used in a number of other states; the single subject rule. If a proposed change is confined to an easily understandable single subject, it may be proposed by amendment and would not require a constitutional convention, even if it affected more than one section of the constitution.
Even with the "single subject" rule in place, courts will retain a wide degree of discretion over proposed constitutional changes. "Far reaching" changes to our basic governmental plan would still be required to be proposed by a constitutional convention. With the passage of the proposed amendment the public, the legislature and the courts themselves will have a clearer, more objective, test for the court's use of that discretion. Keep in mind that no constitutional change can occur without the majority approval of Alaskans by state-wide vote.
Ballot Measure 2 also protects the separation of powers in Alaska government by prohibiting judges from revising or altering the wording of proposed ballot measures adopted by two-thirds of the Legislature or by constitutional convention. In the Bess case the court took upon itself the right to revise a proposed amendment to the constitution, thus violating the important principle of separation of powers in American government. Under the separation of powers doctrine, courts have the power to decide whether proposed changes meet legal challenges, but they do not have the power to alter or revise proposals made by the legislature or constitutional conventions.
Passage of Ballot Measure 2 is important to reaffirm the people of Alaska have the power to continue to approve limited, single-subject changes to Alaska's constitution as we have done 25 times since statehood.
Sen. Miller can be reached at (907) 488-2205. Sen. Donley can be reached at (907) 561-8234.