SJC hears arguments in amendment lawsuit
John Hanify, the attorney for the plaintiffs, argued that the state legislature has a pattern of unfairly derailing initiative petitions for constitutional amendments, failing to take votes on the merits of five of the last six placed before them in the past 25 years. He said the process was designed to give a minority of citizens the power to place an amendment on the ballot by setting a very low bar for passing it in the legislature; an initiative petition for a constitutional amendment only requires support from one-quarter of lawmakers during votes in two successive sessions to place it on the ballot. Hanify said by killing amendment petitions procedurally lawmakers have effectively raised that bar to require support from a majority of lawmakers, robbing minority interests of the right to place constitutional amendments on the ballot.
Justice John Greaney, who joined the majority in the 2003 Goodridge ruling finding that same-sex couples have a right to marry, said he believed in prior cases the SJC had made it clear that lawmakers had an obligation to vote on initiative petitions for constitutional amendments, but he questioned what sort of remedy the court could provide if lawmakers declined to take the vote.
“Do we lock [the defendants] up, find them in contempt?” asked Greaney.
The answer is no.
But the Globe weighs in SJC role in gay marriage vote argued.
As does the Herald:. And here’s the Herald’s editorial.
It would be delightful to imagine the court sending out marshals to round up lawmakers and giving them a police escort back to the State House. But that only happens in Texas. And then what? It can’t force a vote.
The court has only one real weapon at its disposal right now – the ability to tell legislators what their duty under the Constitution is. Because given their current behavior clearly they have forgotten that.
The arguments boil down to the lawyer for the amendment supporters acknowledging that “the court could not force the legislature to take a vote, but said the justices could pressure lawmakers to act by spelling out the intentions of the constitutional provision that permits citizen initiatives.”
And the lawyer representing legislature responded that if people don’t like the way the ConCon recessed without taking a vote, the only real remedy is at the ballot box. The SJC can’t force the ConCon to vote on the merits of the amendment.
Some say that if the issue were reversed and an amendment putting gay marriage into the constitution were being blocked that supporters would be equally outraged. Maybe. But if the issue were also reversed, and an amendment VoteOnMarriage didn’t want was being blocked, you can bet they’d be happy about the ConCon recessing. It does work both ways and we just have to live with that process. “Democracy is messy,” said Rumsfeld, “finest secretary of defense this nation has ever had,” according to Dick Cheney.
There’s still a lawsuit filed in federal court, suing the 109 legislators who voted to recess. I don’t get why that would be in federal court.
cos says
A constitutional amendment needs to be passed by two successive sessions of the legislature to get on the ballot, but if it starts as an initiative petition, only 25% is required to “pass”. That’s 25%, which means 50 votes since we have a total of 200 legislators.
kira says
Thanks for the correction.
laurel says
Is far as I can see, the only remedy to any potential voting loophole is to amend the constitution to fix it. It will be telling if the folks up in arms over the vote to postpone just wander away after the SJC rules, or if they get into gear and put together an initiative petition to get what’s ailing them fixed (HC cmte + VOM = lotsa signatures, some of them valid, even!). Unless that happens, the system will be used (some will say abused) as is. And that’s just the way it is. I have to put up with the 1913 laws – they have to put up with non-votes.
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Of course, the SJC’s ruling could make my 2 cents worthless currency. I’m staying tuned…
jkw says
It seems like the correct decision is to say that the legislators are failing to fulfill their constitutional duties. The remedy for that is to remove them from office immediately. If they have violated the constitution, I would think it would make them ineligible to even be legislators, so I’m not sure why the court would have a problem with telling them they have to step down and that they aren’t allowed to run again. Another possible remedy would be to force them to return their pay to the state (since they failed to actually do their jobs, they shouldn’t be paid).
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One problem with a remedy like this is figuring out which legislators it applies to. Would it be all 200 of them? Just the ones that vote to end the ConCon when not all the amendments have been voted on? Just the ones that don’t show up Jan 2 (if there isn’t a quorum)? Only the ones that both voted to recess and don’t show up?
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As for the federal case, I believe that if a person is suing the state government, they have to do it in federal courts. The state government should not be deciding on cases involving the state government.