Lawmakers can improve judicial elections and amendment process.
Antipathy toward constitutional amendments at the 2014 Legislature is understandable. In 2012, legislators were witness to the backfiring of two amendments that proponents believed would not only win voter approval, but also assure victory for the majority party that launched them.
That majority is now the Legislature’s Republican minority, and its experience with amendments is seen as a cautionary tale by the DFLers who now hold majority gavels.
But at age 156 as of May 11, Minnesota is still a young state. Its self-governance remains a work in progress. Lawmakers ought not swear off improvements in the structure and workings of this representative democracy just because one party tried and failed to use the Constitution for matters better left to state statutes.
That’s why we’re rooting for two amendments to be sent to this fall’s general election voters. One would replace contested judicial elections with so-called “retention” elections, allowing voters to remove a judge from the bench but not to install his or her replacement. The other would require future amendments to win support from 60 percent of the members of each legislative chamber before being placed on the ballot.
Both of these amendments are long shots to win legislative approval with fewer than three weeks remaining in the 2014 session. After the 2012 defeat of an amendment banning same-sex marriage and another requiring a government-issued photo ID to vote, legislators’ chary feelings about amendments explain some of their hesitation.
In addition — particularly in the case of the judicial election change — the opposition of the anti-abortion lobby and the GOP right wing has become a roadblock. DFLers are loath to energize those groups this year in ways that propel them to the polls.
But it is precisely because special interests are itching to play politics with this state’s judicial elections that the retention election amendment is needed. It would deny such groups the opportunity to fill the state’s court benches with judges of their own choosing, and thereby erode the impartiality of Minnesota’s courts.
Voters could still oust a sitting judge — and, under the amendment, would have an expert evaluation of judicial performance available to guide them. But the proposed change would allow a vacant bench to be filled only by a governor via a merit-based, impartial screening process, not interest-group politicking. A similar change in other states has suppressed interest groups’ desire to spend large sums on judicial electioneering.
Similarly, it is precisely because the 2012 amendments backfired on the GOP that a supermajority requirement would be a worthy change to the Constitution. Very rarely in state history has one party controlled both legislative chambers by margins of more than 60 percent. A 60 percent supermajority threshold for amendments would decrease the likelihood that one party would succeed in stacking the constitutional deck in its favor or that it would be able to use the Constitution as an end run around a governor of the opposite party.
Among the 50 states, Minnesota’s amendment process is among the easiest for legislators to initiate. Only 16 other states allow legislative chambers to approve amendments by simple majority votes, according to a 2002 review by the National Conference of State Legislatures. Fifteen other states add a time-based hurdle, requiring that amendments win legislative approval in two sessions separated by a general election before going to the voters. Minnesota is among 35 states without that forced slowdown.
Legislative bodies are notoriously reluctant to dilute their own power and prerogatives, which a supermajority requirement for amendments would do. But this Legislature knows better than most that a low threshold for amendment adoption is a temptation that can lead to political miscalculation. The members of this Legislature would do well to shield their successors from temptation and the state Constitution from misuse.
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