FACTS AND ISSUES:
Observations on the Proposed New State Constitution
by Anne Findley-Shares
[Then Director for Constitutional Revision and
Immediate Past President League of Women Voters of Alabama]
The 1983 Legislature has offered the people of Alabama a new State Constitution. The proposed Constitution opens and closes with a declaration of equality of women and men. Section 1 grandly begins, "All men AND WOMEN are equally free and independent. . . ". Section 222 wordily concludes, "Throughout this Constitution, the masculine gender shall be deemed to include the feminine and vice versa, and both shall be deemed to include the neuter and vice versa, whenever the context admits such construction."
In between appear several interesting changes from the present 1901 Constitution with. varying degrees of significance.
Of symbolic importance in the new Constitution is the elimination of numerous and lengthy voting restrictions. Until they were held unconstitutional, provisions in the 1901 Constitution denied women the vote and disfranchised many poor white and most black men. Also deleted is the prohibition against marriages of white with black people.
The new Constitution offers a few positive changes but it will not open the door to sweeping reforms in the way state government runs. Two long standing goals of the League of Women Voters of Alabama remain unfulfilled: a legislature more independent of the governor and a reformed tax structure.
The following observations do not address all the provisions of the proposed and present Constitutions. This discussion is limited to the additions, retentions, alterations and deletions which are of particular interest to League members. League support positions are noted where applicable. Articles X and XII bear on the issue of tax reform. Article IV sets legislative procedures. Article XI concerns home rule.
The existing State Constitution, with its many local amendments, is very complex, especially in its regulation of bonded indebtedness and ad valorum taxation.
ARTICLE I DECLARATION OF RIGHTS
In addition to recognizing equality of women, the new article provides citizens may "keep" as well as "bear arms". No other substantive changes occur except deletion of the unnecessary prohibition against slavery. The present prohibition of suits against the state is retained.
ARTICLE II STATE BOUNDARIES
Description of state boundaries remains. Eliminated are present references to county boundaries and locations of county courthouses.
ARTICLE III DISTRIBUTION OF POWERS OF GOVERNMENT
These provisions are identical to those in the present Constitution, calling for "three distinct departments" of state government: the legislative, executive and judicial.
ARTICLE IV LEGISLATIVE DEPARTMENT
Among the League's primary concerns about state government is the vulnerability of the House of Representatives to domination by the executive branch. This vulnerability stems from the present Constitutional requirement that all elections by the legislature shall be by voice vote. House members are denied the protection from political coercion in their choice of leadership which the secret ballot provides for ordinary citizens.
Consequently the elected speaker and committee chairs in the House have actually been chosen by the governor for most of the twentieth century. This has placed the House leadership in a position of accountability to the governor rather than to the people. The situation is fundamentally different in the Senate where the presiding officer, the lieutenant governor, is elected by all the people.
Section 73 of the new article continues the present requirement of a voice vote for elections by the legislature. The League will continue its support for a secret ballot for election of the speaker of the House.
Section 46 incorporates the constitutional amendment, ratified in 1975 with League support, which provides for annual sessions.
Sections 47, 66 and 71 offer positive improvements over the present constitution.
Section 47 prohibits the legislature from increasing its pay during a current term but provides it shall establish compensation and expense allowances for legislators elected to the next term. The League, which supports adequate annual salaries, has recommended in the past an independent compensation commission.
Section 66 contains a new provision to continue current appropriations into the next fiscal year if the legislature fails to pass general appropriations bills. This provision to prevent a cutoff of funds was recommended by the Alabama Constitutional Commission in 1973 and has been supported by the League since then.
Section 71 is a new section mandating a code of ethics for legislators and other public officers and employees in respect to conflicts of interest and bribery. At present, the state's code of ethics is provided by statutory law. In the past, the League supported establishment of the Ethics Commission and later, retention of the Commission to enforce the ethics taw. "Ethics" deserve constitutional status in Alabama.
ARTICLE IV EXECUTIVE DEPARTMENT
There is no substantive change in this article.
ARTICLE VI JUDICIAL DEPARTMENT
This article is essentially the same as the League-supported judicial article ratified in 1973 with two significant exceptions;
1. Section 129(d) requires an affirmative vote by the legislature to approve recommendations by the judicial compensation commission for changes in Judges compensations. The present article provides that the commission's recommendations become law unless rejected or altered by both houses.
2. Section 137 deletes the present mandatory retirement age of seventy for judges.
The League does not oppose either of these changes.
ARTICLE VII IMPEAC11MENTS
This article remains substantially the same.
ARTICLE VIII SUFFRAGE AND ELECTIONS
The present Constitution's verbose and restrictive article on elections, most of which has been declared unconstitutional, has been entirely replaced by the brief, clean wording proposed by the Constitutional Commission in 1973 and endorsed by LWVAL.
It provides that "Every citizen who has attained the age of eighteen . . .". shall have the right to register and vote; that the legislature "may prescribe reasonable and nondiscriminatory" registration requirements; and that the legislature shall provide for voter registration, absentee voting, secrecy, election laws and nomination of candidates.
ARTICLE IX REPRESENTATION
The 1901 article has been cleaned up with brief wording which establishes single member legislative districts and incorporates the one person-one vote principle. However, Section 151 continues to invest the legislature with the responsibility for redrawing legislative district lines following each decennial census.
After seventy-two years of legislative failure to redraw such lines fairly before federal intervention, it is likely reapportionment will be a problem again in 1991. The League will continue to recommend an independent reapportionment commission.
ARTICLE X EDUCATION
Section 153 declares, "It is the policy of the State of Alabama to foster and promote public education and in furtherance of that policy the legislature may provide for the maintenance and support of public schools... "'
Sections 154 and 155 continue the elected state board of education and appointment of the superintendent of education by the board.
Section 161 and 162 continue the boards of trustees of the state university and Auburn University- as presently constituted.
Sections 156 - 160 concern funding for education.
Section 156, 157 and 158 continue present earmarkings to education, including "a special annual tax of thirty cents on each one hundred dollars of taxable property" (i.e. 3 mils). The League's position is that the Constitution should neither provide for nor prohibit earmarkings.
Section 158 also continues the present ceiling on state ad valorum (i.e. property) tax "for all purposes, including schools" of 6'/z mils.
Section 160 incorporates in substance present Amendments #3, #202 and #382. It establishes a limit of 9 mills, "or as otherwise constitutionally authorized prior to the adoption of this Constitution", of county ad valorum taxes for education purposes, and establishes a limit of 6 mills, "or as otherwise . . . authorized . . ." for school districts (defined as including municipalities). Both tax rates are subject to approval of the voters of the affected county or district.
The county and district tax ceilings fixed by the
Constitution have been raised by many local amendments so there is now wide variation among counties and school districts in the millage provided locally for education.
Throughout the nation the property tax has been primarily a local tax Z and in most states it has provided the major source of revenue for school funding. In Alabama, however, most school funds come from state taxes, mainly on sales and income but also including tobacco, property and other .axes. State funds provide approximately $276 per capita for education, above the national average for state expenditures of approximately $254 per capita. It is the low average level of local support which drops Alabama's per capita combined expenditure of $327 to well below the national average of $412 for local and state governments together. 3 One factor in the low level of local support has been the constitutional restrictions on ad valorum taxes.
The League opposes all constitutionally fixed tax rates.
ARTICLE XI LOCAL GOVERNMENT
The present constitution does not contain an article on Local Government per se although municipalities are dealt with at length under the article on Corporations. The verbiage of these provisions is reduced in the new Local Government article.
Section 167 is a new provision mandating the legislature to provide optional plans of local government for counties. A county may adopt or rescind a plan by referendum which may be initiated either by the current governing body or by petition of the electorate. The new article preserves the legislature's power for "delegating such legislative authority. . . as the legislature deems desirable".
This section is probably the most significant feature of the new Constitution, especially for urban counties with multiple governing units which have overlapping problems and responsibilities. Counties which do not choose to be governed under an optional plan will continue as presently structured.
Section 168 calls for the legislature to provide optional plans of government for municipalities.
Although both are new constitutional provisions, these two sections grant no new powers to the legislature. They merely require the legislature to provide optional forms of government for counties as well as municipalities.
This limited "home rule" is weaker than the League would like, but it is certainly a move in the right direction and is probably all that is politically possible in a -state with many sparsely populated rural counties.
ARTICLE XII TAXATION AND DEBT ELIMINATION
Under the new article, little or nothing will change. There are just two new elements in this article. Their impact depends on subsequent legislative action: one could be good news, the other could be questionable.
First the good news: Section 179 is a new provision allowing the legislature to provide for a simplified income tax based on the federal return.
The questionable innovation is a new phrase inserted in the paragraph (copied from the present Constitution) which deals with proration of state funds during hard times. The phrase states ". . . the legislature may exempt the payment of the bonded indebtedness of the state and the interest thereon from such proporationate reduction."
Section 177 retains the present tax ceiling of 5 percent on net income and continues the present earmarking of that tax for replacement of revenues lost from homestead exemptions and for school teachers' salaries. As noted above, the League opposes all constitutional restrictions on tax rates, especially for this most progressive' tax form.
Section 181 and 182 continue present. earmarkings for highways and the Department of Conservation.
Section 184 incorporates the complex Amendment #373 to the present Constitution. This amendment was drafted by the Alabama Farm Bureau Federation, passed by the legislature under political threat by Governor George Wallace, and ratified by the people in 1978 following a heavily funded campaign in its favor supported primarily by the Farm Bureau with assistance from Gulf States Paper Co. This amendment superseded earlier Amendment #325. which, while maintaining that all taxable property should be taxed at the same rate established different classifications of property with differing assessments for tax purposes.
With Alabama's property tax already the lowest in the nation, Amendment #373 further restricted property tax revenues by reducing the assessments for all classes except utility property and by imposing "lids" on the amount of taxes any county can collect on reappraised property.
From the League's perspective, one of many problems with this amendment is that it assigns the same classification, with the lowest assessment ration of 10 percent, to large corporate holdings of forest and agricultural land as well as to homes and small farms.
Section 184 also continues the "current use" provision, continues present exemptions from ad valorum taxes, and retains the procedure established by Amendment #325 permitting local tax increases above present limits subject to approval of the local governing body, the legislature and the local electorate.
Section 185 removes the present temporary debt ceiling of $300,000. However, it continues to prohibit issuing of general obligation bonds, which pledge the full faith and credit of the state, except by a 35 vote of the legislature and a statewide referendum. Revenue bonds, which are issued in the name of some agency of the state and carry a higher interest rate, require only a 35 vote of the legislature.
The League has recommended a limitation on bonded indebtedness which depends on some reasonable measure of the state's wealth.
Section 186 raises the present debt limit for general obligation of counties from 5 percent to 10 percent of the assessed value of property in the county. For municipalities the corresponding raise is from 20 percent to 35 percent. It allows issuance of certain bonds with special types of financing. Additional bond issues that are not specifically authorized by the constitution may be approved by action of the local governing body, the legislature and the local electorate.
ARTICLE XIII MILITIA, and ARTICLE XIV PUBLIC OFFICERS, contain no significant changes. ARTICLE XV APPLICATION AND IMPLEMENTATION, merely directs the legislature to abide by the Constitution.
ARTICLE XVI MODE OF AMENDING THE
Section 203 prohibits local amendments.
ARTICLE XVII CONTINUATION AND TRANSITION
Section 209 provides that all existing laws which are valid under the 1901 Constitution and are not inconsistent with the new Constitution shall continue in effect.
Section 210 provides that all present amendments which are not incorporated into the new Constitution and which are not inconsistent with the new Constitution shall continue as general or local laws until they are amended or repealed. Amendment or repeal of these laws shall require both an act of the legislature and also a vote of the electors of the political division affected.
Section 218 interestingly provides, "No county or municipality authorized by any amendment to the Constitution of 1901 to incur obligations, payable in whole or in part from taxes, for industrial or commercial development stall incur obligations under such authority later than two years after adoption of this constitution." The League has no position on use of public funds for private development.
In summary the proposed Constitution is a shortened less cumbersome document. Much archaic language and all unconstitutional sections have been eliminated. There are some changes for the better; however, it falls short of some major goals of the League.
BIBLIOGRAPHY, REFERENCES & FOOTNOTES
Alabama Constitution of 1911. including Amendments ratified in 1966
Amendment #373, obtained from Office of Secretary of State
Proposed Constitution of Alabama Report of the Constitutional Commission, 1973
A New Constitution for the Alabama Court System: The Judicial Article, Alabama Constitutional Commission, 1973
Constitutional Revision Update, League of Women Voters of Alabama, 1976
New Constitution for the State of Alabama to replace the Constitution of 1901, as amended. approved by 1983 Legislature
1. One legislator explained that the choice of the word "may" over "shall" reflected the legislature's apprehension that "shall" could lead to judicial insistence on equalization of local support.
2. Ward, Keith J. and Sparkman. Betty D.. Property Tax Administration: Reappraisal in Alabama Office of Public Service and Research, Auburn University, 1980, p. 4
3. Money and Our Schools, League of Women Voters of Alabama, 1979, p. 4
4. Progressive taxes are based on ability to pay. Regressive taxes take a greater percentage of income. the lower the income.
5. Ward and Sparkman, op. cit., pp 145 - 147
League of Women Voters of Alabama
Position Statement on Constitution Revision
[NOTE: These are the position of the LWVAL on Constitution Revision and on Finance and Taxation in 1983. Read the current LWVAL positions at http://www.lwval.org. - Editor]
The League of Women Voters consensus of October, 1967 states: "The League of Women Voters of Alabama emphatically favors a new constitution for the State of Alabama. The many objectives to the present document can be summed up by (1) The multitude of amendments with accompanying expense for special elections to approve same; (2) emphasis on statutory rather than fundamental law; and (3) obsolete unconstitutional aspects. The majority of the Leagues would favor a commission-convention for the purpose of revision, but would not oppose any vehicle which would truly attempt constitutional reform.
In the area of finance and taxation the League has the following positions:
Alabama's present tax structure places the heaviest tax burden on low income persons because they pay a larger percentage of their income in state taxes than any other income group. For this reason, the League of Women Voters of Alabama urges reform of the total tax structure. Any new taxes which become necessary should be progressive and based on ability to pay in order to correct the present inadequate system.
As a first step toward overall reform, the constitutional restriction on the income tax should be removed since this tax is Alabama's most progressive revenue source . . . .
Any increased revenue raised from reform or any new taxes should not be earmarked. The League of Women Voters continues to support constitutional revision which neither provides for nor prohibits earmarked taxes.
In a update of the study of constitutional revision in July 1973 the League adopted the following position:
"The League supports a revised Judicial Article for the Constitution of Alabama which would provide for:
a. a unified court system
b. a form of merit selection of judges with periodic approval by the voters as opposed to political election of judges.
c. a compensation commission which would recommend salaries of judges to the Legislature."
The Legislative-Executive Branch Consensus of the League's position is:
"The League of Women Voters of Alabama supports the strengthening of the legislature so that it may more effectively function within the traditional framework of checks and balances among the coequal branches of government. We recommend that the legislature meet annually and the legislators receive an adequate annual salary. We believe that a constitutional mandate for the legislature to select its own leadership is necessary to insure greater independence of the legislative branch and that there should be constitutional guarantees of adequate representation for all citizens. We support the reorganization of the executive branch to achieve maximum efficiency and economy. This should include formulation of a comprehensive budget by the executive, subject to legislative approval."