EagleTribune.com, North Andover, MA

October 28, 2012

Constitutional amendments face uphill battle in N.H.

Income tax ban, legislative power at stake

By Doug Ireland direland@eagletribune
The Eagle-Tribune

---- — When Granite Staters fill out their ballots next week, most probably won't hesitate when making their choices for president or governor.

When looking down the ballot, chances are they will probably have no problem choosing other candidates as well. Then, there are the three questions.

The three questions — including two constitutional amendments that proponents say if approved, will help protect New Hampshire tradition.

Political analysts say some voters may not even see the questions at the bottom of the ballot, never mind make informed decisions on them.

Question 1 asks voters to adopt an income tax ban, while Question 2 gives the Legislature authority to regulate the courts. Question 3 asks if a convention should be held to amend the state constitution.

Although a heavy turnout is predicted for Election Day, don't expect many voters to be weighing in on these questions, except for maybe the income tax ban, the analysts said.

"There is so much attention paid to the top races, it is very difficult to get voters interested in what's going on at the bottom of the ballot," said University of New Hampshire political science professor Dante Scala. "I would say passage of both (amendments) is difficult."

Adopting a constitutional amendment requires approval from two-thirds of voters, making it even more difficult to enact these proposals, he said.

Fellow political science professors and analysts Andrew Smith and Dean Spiliotes agree that few voters are aware — or even care — about the three questions. Many who are knowledgeable about the questions just don't feel amending the state Constitution is the right thing to do, they said.

That includes people who oppose an income tax, they said.

"The juice isn't there for this down the ballot," Spiliotes said.

Smith, head of the UNH Survey Center, said while many voters may have opinions on the income tax question, the same can't be said for the other two proposals.

The Survey Center's latest poll of 773 likely voters shows they are divided on the income tax issue, indicating the question wouldn't receive the necessary two-thirds support.

The poll, conducted between Oct. 17 and 23, shows 44 percent would vote for the amendment, 34 percent would not and 23 percent are unsure. The voters were not polled on the other two questions.

"The others are increasingly difficult for people to be aware of," Smith said.

Scala agrees, especially when it come to the court question. Question 2 would preserve the state Supreme Court's rule-making authority, but would give the Legislature the power to regulate the courts. If there is a conflict between state law and a court-established rule, the law would be followed unless it contradicts the Constitution.

"I don't know if voters will be able to make heads or tails of that," Scala said of the question. "I think they would be more likely to say no or leave it blank."

Question 3, which by law must appear on the ballot every 10 years, simply asks if voters want to convene a convention to amend the state Constitution.

But most of those interviewed said there is no need to spend the money for a constitutional convention when no major revisions are needed. The last one was a couple of decades ago, some said.

"I don't see anything that particularly requires having a constitutional convention," said Carolyn McKinney, chairman of the Republican Liberty Caucus of New Hampshire,

Groups lobby on income tax ban

While many voters may not realize these questions are on the ballot, many special-interest groups are aware, especially the income tax question.

They're doing whatever they can to get the word out to voters. But they realize garnering two-thirds approval may be tough.

"By the time you get to the bottom, they are going to say, 'That's enough, I'm going home,'" joked Corey Lewandowski of Windham. "We are definitely fighting that tide."

Lewandowski, state director of Americans for Prosperity - New Hampshire, said his organization is pushing for adoption of the income tax ban because a broad-based tax would give government more control over taxpayers' money.

"For me, it's all about having more money in your pocket," he said.

McKinney said passage of the amendment preserves the state's tradition of a limited, affordable government.

"I really think that it is part of the fabric of New Hampshire," she said. "We really don't rely at all on a broad-based tax in New Hampshire."

Another supporter of the income tax ban is former GOP gubernatorial candidate Kevin Smith. After losing to Ovide Lamontagne in the primary, Smith said he became dedicated to educating the public about the need to adopt Question 1.

"I pretty much got involved in it because it stuck out to me how few voters knew about it when I was running for governor," said Smith, a former Londonderry resident.

He said the amendment prevents residents from being burdened by another tax and helps keep the role of government in check.

"It preserves New Hampshire's tax code that we have enjoyed for so long in this state," he said. "It ensures that New Hampshire's government remains small in size and limited in scope."

Question 1 is opposed by groups such as Granite State Priorities and labor unions.

David Lang, president of the Londonderry-based Professional Fire Fighters of New Hampshire, said although his organization hasn't formally taken a stance on the amendment, his group is against the measure.

"When you change the Constitution, it's a very serious thing," Lang said.

Opponents believe adoption of the amendment would mean property taxes and other levies are increased to compensate for the loss of potential revenue.

They also oppose the amendment because it restricts the state's options for raising revenue — now and in the future.

"For us, it's, 'Are you hurting a future generation?'" he said. "I don't think we should make that decision for future generations."

David Webber, head of Granite State Priorities, agrees.

"This is about principles," he said. "It really disrupts the Constitution. It's especially unacceptable in 2012 to be trying to make decisions for people in 2050."

Authority over the courts

Although these advocacy groups are not focusing much — if any attention — on Question 2, their views mirror how they feel about Question 1.

It all comes down to whether the Constitution should be amended at all. Americans for Prosperity and the Republican Liberty Caucus support Question 2, while Granite State Priorities and unions are opposed.

Proponents say the amendment would restore legislative oversight to the judicial branch — something that was lost when the Constitution was amended in 1978.

"This constitutional amendment will put the court back in its place as an interpreter of law for individual cases and not as the policy-maker that explains how the law must be applied in all situations — that is a power reserved for the people's Legislature alone," McKinney said in a statement.

Lang said the nation's founding fathers knew best when they created the judicial, executive and legislative branches three centuries ago.

The Legislature should not oversee the court system in any way, he said.

"To tamper with it, I think, puts us on a slippery slope," Lang said.

State judicial leaders are strongly opposed to the amendment, also saying it destroys the separation of powers established by the U.S. Constitution.

Administrative Judge Edwin Kelly of the Circuit Court system and Superior Court Chief Justice Tina Nadeau are joined in their opposition by former House Speaker Douglas Scamman.

They contend it disrupts the traditional checks and balances system by giving too much authority over judicial matters to the Legislature.

"We believe this dangerous step would undermine the integrity of the judicial process," they said in a joint statement. "We urge the citizens of New Hampshire to vote 'no' on Question 2 on November 6."

Question 1: Are you in favor of amending Part 2, Article 5-b of the New Hampshire Constitution by adding Article 5-c? Notwithstanding any general or special provision of this constitution, the general court shall not have the power or authority to impose and levy any assessment, rate or tax upon income earned by any natural person; however, nothing in this article shall be construed to prohibit any tax in effect on January 1, 2012, or adjustment to the rate of such a tax. Question 2: Are you in favor of amending, Part2, Article 73-a of the New Hampshire Constitution? [Art.] 73-a. [Supreme Court, Administration.] The chief justice of the supreme court shall be the administrative head of all the courts. The chief justice shall, with the concurrence of a majority of the supreme court justices, make the rules governing the administration of all courts in the state and the practice and procedure to be followed in all such courts. The rules so promulgated shall have the force and effect of law. The Legislature shall have a concurrent power to regulate the same matters by statute. In the event of a conflict between a statute and a court rule, the statute, if not otherwise contrary to this constitution, shall prevail over the rule. Question 3 Shall there be a convention to amend or revise the Constitution?