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Pennsylvania Republicans Eye Referendums To Get Past Vetoes

A large, stately building with trees out front.
Matt Rourke
The Pennsylvania state Capitol in Harrisburg.

Republicans who control Pennsylvania's Legislature are increasingly looking to take a different avenue to write laws, voter referendums, to get around Gov. Tom Wolf and make policy that the Democrat cannot block with his veto pen.

On Friday, Republicans unveiled a proposed constitutional amendment to expand Pennsylvania's existing voter identification requirements, both for in-person voting and for mail-in ballots. Republicans also plan to introduce another proposal for a statewide referendum to repeal Pennsylvania's expansive mail-in voting law that passed in 2019with near-unanimous support from Republicans.

Both have been introduced also as legislation, and Wolf has vowed to oppose both, seeing them as attacks on voting access spurred by former President Donald Trump's baseless claims about election fraud.

“So the governor’s going to veto that,” one of the sponsors, state Sen. Doug Mastriano, R-Franklin, told the audience Friday at the annual conservative gathering, the Pennsylvania Leadership Conference. ”Aha! But the lesson from last year was we’ll then do a ballot question and I think any issue of how our election is conducted in Pennsylvania should be your decision in the end.”

The lesson, it seems, was in last month's primary election, when voters approved two Republican-penned proposals to greatly expand the power of lawmakers over a governor's disaster emergency declarations.

A governor cannot block a ballot question to change the constitution from going to voters.

Democrats see Republicans as being emboldened by last month’s voter approvals, and increasingly willing to use the strategy in the future to get around a Wolf veto.

Last month’s ballot questions emerged from a long-running fight between Republicans and Wolf over his administration’s use of executive authority during the coronavirus pandemic.

Over eight months of pandemic lawmaking last year, Wolf vetoed roughly a dozen bills passed by the Republican-controlled Legislature. Democrats helped sustain his vetoes against override attempts.

Wolf had threatened to veto a resolution penned by Republicans last June declaring an end to Wolf’s disaster emergency declaration. Ultimately, the state's high court sided with Wolf,spurring Republican lawmakers to take the matter to voters, successfully.

One of last month's proposals to amend the constitution was actually designed to change a provision in the law.

Such use of a constitutional amendment is very unusual, said Bruce Ledewitz, a Duquesne University law professor who teachers constitutional law.

The only other such example Ledewitz could recall was in his reading about the 1874 constitutional convention when delegates inserted provisions regulating corporations into the constitution.

Those provisions belonged in the law, not the constitution, but delegates did not trust the Legislature to regulate corporations, Ledewitz said.

“At least that was rational,” Ledewitz said. “They're only doing this because the governor has a veto. ... You could put anything in the constitution, but you don’t because if you do, you’re going to have to amend it all the time once you start down that road.”

Wolf's second and last term expires in January 2023. Voters elect a new governor in November 2022.

Rep. Jeff Wheeland, R-Lycoming, downplayed the importance of Wolf's veto threat in his sponsorship of the voter ID amendment to the constitution.

Voter ID is popular, Wheeland said, citing an Associated Press-NORC Center for Public Affairs Research poll that asked about voter ID.

“I’m just listening to the people,” Wheeland said. "That’s what the people want.”

The nearest opportunity for Republicans to get the election-related proposals on the ballot is 2023. Before that, the proposals must pass the Legislature twice in two consecutive legislative sessions.

History is on Republicans’ side in a strategy of going to voters: The last time voters rejected a ballot question was in 1993, and they usually pass easily.

The two GOP-sponsored measures on the governor's disaster declarations won by less than 4 percentage points statewide. By comparison, two other bipartisan ballot questions on the ballot won by more than 45 percentage points statewide.

J.J. Abbott, Wolf's former press secretary who now runs a progressive advocacy group called Commonwealth Communications, expects Republicans to prepare ballot questions in 2023 to roll back voting rights and limit state spending, initiatives they know Wolf will veto.

“They clearly had a deliberate strategy around the disaster declarations and I think they're teeing these things up to be ready go to on the ballot in 2023,” Abbott said. "And I think there is this concern more broadly that it’s difficult to get people away from voting yes.”