How Should You Vote on Constitutional Amendment Ballot Questions?

Nov 6, 2018

Credit Vox Efx / Flickr Creative Commons

New Hampshire voters will have the opportunity to decide next week whether to pass two amendments to the state constitution in the form of questions on the ballot.

The first ballot question would change taxpayer standing to bring legal actions against the government.

Morning Edition Host Rick Ganley spoke with UNH law professor John Greabe about what this change would mean for the state's court system. [Related Story: Ballot Question 2: Should 'Right to Live Free' Language Be Added to N.H. Constitution?]

(Editor's note: this transcript has been edited lightly for clarity.) 

So, let's try to break this down a little bit. What would this question on the ballot in November change?

Well if it were adopted, it would permit the taxpayer of any district within the state to bring a lawsuit if they believe that the government unit that they'd be suing is expending money in violation of law -- be it the Constitution or be it some statutory law within the state. As things currently stand, the doctrine is that merely being a taxpayer and seeing your government spend money in what you believe to be an illegal way is not enough of an injury for you to be able to go to court and assert standing to bring a lawsuit. So this amendment, if adopted, would expand the capacity of the courts to really oversee the elected branches with respect to decisions they make with public funds.

What was the origin of this?

Well, there was a case a few years ago involving state tax credits. It was a lawsuit that was brought to challenge the adoption of a state tax credit scheme, which permitted New Hampshire businesses which made contributions to scholarship funds, and those scholarship funds were then used to fund scholarships to private schools, including parochial schools. So there a lawsuit brought claiming that that violated the separation of church and state in a couple of different provisions of the New Hampshire state constitution. And it was brought pursuant to a statute that is very similar to the amendment that's proposed, a statute that was adopted a few years earlier. And that statute was adopted in response to an earlier Supreme Court decision. But the statute invited lawsuits by taxpayers to challenge what they believe to be unlawful expenditures of funds. The New Hampshire Supreme Court, to the surprise of many in the case, decided not to address the underlying constitutional issue, the separation of church and state issue, because they decided that the New Hampshire statute was unconstitutional. And in doing so they followed federal law, because under federal law and under the federal constitution being a taxpayer is not enough to allow one to bring a lawsuit.

It doesn't meet that minimum threshold of standing.

That's right.

The threshold has been that you have to have a personal stake in this.

That's right, some sort of actual individualized injury.

Who are some of the groups supporting and opposing this amendment? I know you have supporters saying this was a thing historically. Opponents are concerned that this is going to bring frivolous lawsuits. We're going to be clogging the courts here.

Yeah I mean it is going to invite lawsuits where lawsuits were previously not possible. I don't have a deep understanding of the politics of this, but I do know that there is support for this on both sides. I know that for example, Bill Duncan who was the plaintiff in the case a few years ago seeking to bring a constitutional challenge to the New Hampshire tax credit scheme is for this, as are some more conservative elements within state politics.

It's an interesting bipartisan group of supporters.

Yeah, it's really a referendum on our separation of powers. And it's really an expression of a desire to involve the judiciary more robustly in terms of overseeing expenditures of funds by the democratically accountable branches.

Theoretically, do you worry a little bit about that?

Well I mean, I think different people have different ideas, different baseline understandings of how we work best in terms of when the judiciary should become involved in things like this. There are people who think that the judiciary is more insulated from politics and can stand more on principle, and they tend to favor more robust involvement of the judiciary in protecting rights, particularly in situations where the underlying question is whether or not some expenditure of funds is consistent with our Constitution. There are those though who are concerned about judicial involvement, who think that this is better left to the political branches.

Don't legislate from the bench.

That's right.

So in this time, there is a lot of concern nationally about judges becoming more partisan. Do you believe this amendment could contribute to that in any way?

When the state Supreme Court held that the statute allowing taxpayer suits of this sort was unconstitutional, on the surface what the judiciary seemed to be doing was giving up power. It's saying we can't be involved in this. But sometimes, we talk about this and constitutional all the time, sometimes the best way to preserve one's power, to preserve one's cache and one's reputation is to not get involved, right? And so this is taking away from the judiciary a tool in their tool kit, because it is going to necessarily require them to reach the merits of some perhaps hot button political issues that they just as soon stay on the sidelines for. And so it will be interesting to see if this amendment were to pass, it would perhaps force the court to decide some issues where under current law it would otherwise decide that it just doesn't have the power to decide.

Well if this does pass, would this be a shock to the court system? Are we going to see a boom of cases suddenly?

Well it's interesting. I mean, as you said before, this is how the law was for a long time. And you know the court system was not overcome with these sorts of lawsuits. But things have changed. I mean politics, partisanship has changed. Another thing that's changed is the obligation of the Supreme Court in this state now to take all appeals. It used to exercise discretion with respect to what cases it took. And so now under current law, there is a right to appeal to the state Supreme Court. So it may end up, not only leading to some cases in the lower courts that are different in kind and more political than we otherwise have seen, but it may force more of those cases to the New Hampshire Supreme Court as well.

(This post was first published Oct. 31)