The floor of the Pa. House of Representatives (Capital-Star photo).
(*This story was updated at 3:43 p.m., on Wednesday, 1/13/21, with new reporting)
Republicans leadership pitched a sunny new attitude this week as lawmakers returned to Harrisburg to take up their duties again.
“We want to think about what’s going on in the future. Some might want to dwell on the past,” House Majority Leader Kerry Benninghoff, R-Centre, said at a press conference Tuesday.
His remarks proved telling. The very next day, on Wednesday, House committees moved to resolve two long simmering grievances over the separations of powers in Pennsylvania state government with a pair of constitutional amendments that could impact state politics for decades to come.
Combined, they address concerns the GOP-controlled General Assembly has raised with the state’s Democratic judiciary and executive branches, concerns that have boiled over this year in light of the 2020 election and COVID-19 pandemic.
And both could be put to voters as soon as this May for final adoption into the commonwealth’s governing document.
First, the House State Government Committee passed an amendment in a party-line vote to limit gubernatorial states of emergency to 21 days without legislative approval.
It’ll address conservatives’ concern that Democratic Gov. Tom Wolf has overstepped his authority during the COVID-19 pandemic.
Second, the House Judiciary Committee passed by a one-vote margin an amendment to make Pennsylvania’s 31 elected appeals judges run in districts, rather than statewide.
On the former, State Government Committee Chairman Seth Grove, R-York, said the proposal was about reaffirming legislative power and oversight.
“They are times for emergency declarations, they are times when the General Assembly can’t meet and can’t function,” he said. “But I think it’s appropriate for us to realign those expectations and reassert legislative control and legislative guidance.”
Some legal experts were perplexed by the move to bolt into the state constitution what seemed like, at most, a statutory change, but chalked it up as a chance to avoid Wolf’s veto pen.
“I don’t know why they need a constitutional amendment, that seems absurd to me,” Duquesne University Law School professor Bruce Ledewitz told the Capital-Star. Ledewitz is a Capital-Star opinion contributor.
Under state law, constitutional amendments must be approved by the General Assembly two sessions in a row, before voters have a chance to approve or reject the change in a referendum.
Wolf made frequent use of his veto pen in recent years to quash GOP legislators on issues ranging from from abortion to COVID-19 response. But he has no power to reject the amendments, both of which Republicans passed last session.
His office still put out a stern statement opposing both the judicial redistricting and emergency declaration amendments.
Under a hard, 21-day limit disaster response could be hamstrung by legislative inaction, or if disaster itself were severe enough to stop the Legislature from meeting, Wolf argued.
Meanwhile, the judicial redistricting amendment would “guarantee more partisanship in our justice system,” Wolf said.
Four other states elect appellate judges by districts in partisan and nonpartisan races, according to the Associated Press.
‘Highly partisan times’
The judicial redistricting measure in particular has attracted the ire of good government groups, Democratic-alligned interest groups, and former judges Republican and Democrat alike.
The proposal’s sponsor, Rep. Russ Diamond, R-Lebanon, said the amendment would geographically balance the state’s high courts.
By changing the electorate for justices from every voter in Pennsylvania, a swingy purple state, to voters in districts drawn by the Republican-controlled Legislature, the General Assembly could effectively gerrymander the courts in their favor, opponents argue.
Democrats took over the state’s high court in a hard fought 2015 race, a win that delivered consistent victories and that they’ve jealously guarded.
The five justices elected as Democrats have been a constant sore spot for Republicans, handing down far-reaching verdicts on everything from gerrymandering and paid sick leave to gig work and Wolf’s emergency powers.
That anger has only grown after a fall 2020 ruling on Pennsylvania’s recently passed mail-in voting law, Act 77.
The high court granted three extra days for ballots to arrive at a county elections office and approved ballot drop off boxes, among some other changes that expanded voting access, in what Republicans charged is judicial overreach.
Democrats argued they and their allies in organized labor are primed to fight off the effort to restructure the courts.
“The goal of pushing this through quickly is to try and push it through … without much resistance,” Rep. Tim Briggs, of Montgomery County, the ranking Democrat on the House Judiciary Committee, told the Capital-Star.
It’s not just those with partisan interest attacking the measure. Former state Supreme Court justices have warned that geographic districts would “destroy the judiciary,” potentially incentivizing justices to rule not for what is legally sound, but what is politically popular in their district, according to the AP.
And it isn’t just judicial Republicans raising concerns. The amendment passed out of committee by just a single vote after two Republicans defected. That’s a rarity, as party discipline is prized in committee votes.
Rep. Natalie Mihalek, R-Washington, was one of the dissenting Republicans. She voted for the judicial amendment in 2019, but now was opposed, she told the Capital-Star.
“We are living in highly partisan times and think this bill does more to politicize the court instead of alleviating that issue,” Mihalek said.
All told, the House advanced at least six constitutional amendments Wednesday.
Besides the two reconfiguring the separation of powers, the House Judiciary Committee also advanced an amendment to allow a two year window for childhood victims of sexual abuse to bring civil lawsuits.
This would get around current law, which allows individuals to only file before they turn 30.
Such a proposal snarled the Legislature in 2018 following the release of a statewide grand jury report on sex abuse by Catholic priests. But the General Assembly reached a compromise and passed the amendment last session with wide support.
The chamber also moved an amendment adding protections from ethnic or racial discrimination to the state constitution.
All four of those measures could be on Pennsylvanians’ ballots as early as May 2021 if the Legislature moves quick enough.
The other two amendments, which would restrict state spending, did not pass last session and could not be put to voters until 2023 at earliest, if approved by lawmakers.
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