NH Constitutional Amendment

28 October, 2004 at 3:10 am (body politic, new hampshire)

On November 2nd, when New Hampshire voters will be carefully filling in ovals with Number 2 pencils and wondering if we’re still a battleground state that people will be watching carefully on the Big Map to see if we, litmus-like, turn red or blue, there will be a Constitutional Amendment tacked on at the end of the ballot.

The question is asking voters to indicate whether they support a change in the New Hampshire Constitution, one that, depending upon who you ask, either limits or clarifies the power of the NH Supreme Court. The question provides voters with a dense, but reasonable-sounding piece of legalese after asking

Are you in favor of repealing and reenacting Part II, Article 73-a of the constitution in order to clarify that both the judiciary and the Legislature have the authority to regulate court practices and procedures…

You’ll notice that there isn’t actually a question mark anywhere forthcoming, despite the initial “Are you” preface that would seem to demand it. Grammatics aside, this is a stupid bit of deliberate confusion. Anyone who’s done any work in statistics or research will tell you that a question that asks if the constituent is in favor of a repeal creates a dual-vector, a vague confusion as to what is actually being asked. At the end of the indirect question, voters aren’t sure if when they mark “YES” they are supporting the thing they just read or in favor of getting rid of it.

This is either a spectacularly bad piece of wording, or it’s a deliberate attempt to confuse readers and thereby skew results.

And, lastly, voters are asking to substitute language when they have no easy means of comparing the revised statute to the original. You’ll note the question only provides the revision and provides no clear idea of what the original language indicated. The average voter therefore has no idea for what he or she is voting. But that’s okay, because the NH State Legislature has provided a helpful “Voters’ Guide” that describes the purpose of the amendment. But wait! Said “Guide” also fails to cite the original language from Article 73-a of the NH State Constitution. The guide, in fact, only states the benefits of the proposed amendment, and lists none of the controversies or possible conflicts that such a change might create. And since the “Voters’ Guide” was printed and distributed by New Hampshire’s Department of State, one would hope that it wasn’t producing and distributing materials that could be construed as lobbying for the creation of unequal power between the branches of government!

Luckily, the NH Civil Liberties Union filed suit agains the producers of the Guide, and it is no longer available for download from the NH State Department website.

As a public service here today, I’d just like to quote, in their entirety, the Constitutional Article, as it stands, and the proferred revision.

November 22, 1978 Version of [Art.] 73-a.

[Supreme Court, Administration.] The chief justice of the supreme court shall be the administrative head of all the courts. He shall, with the concurrence of a majority of the supreme court justices, make 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.

Proposed November 2, 2004 Version of [Art.] 73-a.

[Court Practices and Procedures.] The chief justice of the supreme court shall be the administrative head of all the courts in the state. The chief justice shall have the power, with the concurrence of a majority of the other supreme court justices, to make rules of general application regulating court administration and the practice, procedure, and admissibility of evidence, in all courts in the state. The legislature shall have a concurrent power to regulate the same matters by statutes of general application, except that such legislative enactments may not abridge the judiciary’s necessary adjudicatory functions. In the event of a conflict between a rule promulgated by the judiciary and a statute enacted by the legislature, the statute, if not otherwise contrary to this constitution shall prevail over the rule.

As a bonus, a link to articles from the Portsmouth Herald and Boston Globe about the controversy, in which it is alleged that the amendment is politically inspired by people who are unhappy with both the State’s decision on school funding, and the way in which the decision was made. Chief Justice David Brock and Supreme Court Justice Joseph Nadeau both oppose the measure, but then, they would, wouldn’t they. Then again, they’re probably best qualified to, *ahem*, judge what effect the amendment would have. However, the best thing I’ve seen on the whole shebang is from the NH Bar Association, which is good reading. Unfortunately, the site seems to be down at the moment, so the prior link is a Google cache. Still, good analysis.

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