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NH State Rep Urges You To Vote No On Ballot Question 1 & 2

NHLN Note: Below is an editorial submitted to NHLN from Chris Serlin State Rep from Portsmouth. He also published this article on the Portsmouth Patch

New Hampshire Voters Should Reject Amendment Questions 1 and 2 this November

By Chris Serlin
State Rep 

This November election day, in New Hampshire, we will not only be voting to elect a President, 2 US Representatives, a new Governor and on down through the ballot – but we will all have a chance to voice our opinions on 3 questions that involve our State Constitution. They are referred to, simply, as “Question 1”, etc., and they will be at the bottom / reverse side of your ballots.

It is VERY important that voters make their thinking known on these questions.

Two of those questions, 1 and 2, are of great potential consequence to New Hampshire for decades to come, and I urge everyone to reject them – soundly. What follows are my thoughts on why we all should do so for Question 1. I’ll address Question 2 in a separate post – but I’ll give you a hint about why you should reject it: “Separation of Powers”. It’s what makes our system work, let’s not change it.

On to the question at hand.

Question 1 seeks to amend our constitution to forever prohibit an Income Tax. It’s “The Pledge” on super-duper steroids. The darling of today’s Republicans in New Hampshire; something they have dreamt about for so long, they used their super-majorities this past session to put this question to the people this November.

I believe this initiative is, at least in part, a typical GOTV effort. After all, in New Hampshire, how do you get your right-wing base to the polls? Talk about same-sex marriage? No, not really – not here. An Income Tax question? You betcha!

But taken as is, the question is, IMO, a cynical effort to play on the emotions of voters instead of a logical argument that might garner rational support. When people hear “income tax”, they say “where!? Yikes!” – and that’s what the New Hampshire GOP wants you to do. Don’t fall for it.

A bit of history: New Hampshire has no income tax. We never have, at least, in a manner that fits a modern definition of one (calculated upon a stated amount of actual revenue). In colonial times, pre and post Revolution, in reality we did have an income tax because then “Property” taxes were established based on a presumption of one’s ability to generate revenue based on the amount of property held and its use (timber, apples, grains, etc.). But that’s another conversation for another day – one which I hope we do have.

So, with no income tax, never having had one, and with current majorities and candidates opposed to one (for the most part), what’s the risk? Why must we enshrine a prohibition against a very specific revenue policy choice in the instrument that documents the core morals and beliefs we all agree to live by, and which establishes our system of government and defines its powers?

Well, I do not believe there is good reason to do so. Quite obviously our system works. We don’t have one and we’re not getting one anytime soon. Even if we did, magically, have an income tax passed through some (currently unimaginable) confluence of events – we have a unique political system in New Hampshire that allows “we the people” to completely change government every 2 years, from the Governor on down all the way into County offices. A repeal, under that bizarre circumstance, is all that would be needed to eliminate the tax if that was what the people wanted.

“Well”, proponents are arguing, “isn’t it better just to change the Constitution to eliminate even that chance?”

No. It is not.

Our constitution is not a sandbox to play with and see what ideas stick. As proponents most certainly know, (in fact they’re counting on this), once done it is *very* difficult to undo a change to our constitution. That’s the mechanism we have for such changes and it is a good one – assuming our constitution is changed with good reason, and careful consideration. But our system is setup so that only 34% of people voting on a given constitutional question (not 34% of the electorate and not 34% of those casting ballots on any given election day – 34% of voters who vote on the question(s) specifically) can hold the remaining 66% “hostage”. It’s a firewall against radical changes, in perhaps radical times. But as it applies to what revenue policy choices future generations, and their elected representatives *may* make, we will not be well served if such a minority can thwart the will of so many in some later time even during a period of crisis or national emergency. Revenue policy is best left to the fluid nature of our Legislative process – not set in concrete. None of us should feel safe giving such power to such a small group of the voting public.

But if a constitutional argument isn’t quite your cup of tea, I’ll offer another – the “law of unintended consequences”.

Question 1 specifically allows any tax already in place to stay in place, and provides that they will not be impacted by this amendment language. Also, though not currently in place, this amendment would *not* prohibit a sales tax in New Hampshire.

Spending and revenue to match will always be a controversial subjects. As well they ought to be in a republic like ours. But let’s agree that at times in the future the legislature will need to increase revenues to suit the needs of the day. To what sources might they turn, if an Income Tax is 100% off the table?

Property taxes. Hate seeing your property taxes always go up – wish there were a more equitable way to spread the cost of government, education, services? Don’t vote for Question 1.

Are you a business owner? If you vote for Question 1, BET and BPT are on the table for hikes in some future scenario even if most people would prefer to spread any necessary increases to the wealthiest among us . Own a business bordering VT, ME or MA? A sales tax is on the table. Will that make you more or less competitive? Are you retired, know someone who is – or otherwise derive any income from investments? Dividend and Interest tax is on the table. Restaurant or hotel in the family? Meals and rooms tax ripe for a bump.

Hunt? Renewing your car registration? Selling real estate? Enjoy our park system? The list goes on. All of those taxes and fees would be fair game in any effort to raise revenue if an Income Tax is off the table until such amendment could be repealed; itself an arduous process matching passage. Regardless of how severe the need, the process of repeal could take years – even generations. It’s very difficult to get 67% of voters to agree on something.

“Well [Chris] we’ll keep spending super low, and none of those scenarios you just discussed will occur – we won’t need more revenue.”

Come again?

It’s fantasy to believe that we can keep cutting gov’t spending and not *ever* have to raise new revenue dollars or hike existing streams. That’s not because government is wasteful, it’s math and common sense.

Anyone try running a business w 2012-rate expenses but 1980s revenue streams? How well does anyone think that would really work? In many cases here in NH, that’s what we do. Our deficit is structural. And you can only cut so much. Sooner or later the Legislature will be forced to consider other revenue sources. And not necessarily to add to what we pay now. I personally favor an income tax to replace some or all of our property taxes. It is, IMO, a far more equitable way in which to generate revenue. But even replacing existing taxes w an income tax is off the table if Question 1 passes.

Some proponents of the question have said that the greatest legacy of this Legislature will be that we made it possible for the people to forever prohibit an income tax in New Hampshire.

As a legislator, citizen and father I believe the greatest legacy we can leave our children (and theirs, and theirs, etc.) is the freedom to make their own choices in their own time, just as we have been able to do. About all things. Revenue and spending most of all. That’s not risky – that’s liberty.

It most certainly will not be to bequeath to them a New Hampshire where in a single area of tax policy, we have forever tied their hands.

CACR 26: We need to keep those ‘Checks and Balances’

On election day, Granite Staters will not only choose who will lead us for the next few years, we will also vote on proposed changes to the New Hampshire Constitution.

One of those constitutional amendments, CACR 26, would give the Legislature direct control over all operations of the Judicial Branch.  Think about that for a minute. Remember all the horse-trading and last-minute surprises that happen every budget season.  Do we really want the Legislature writing the Court’s Rules?

  • Do we want the Legislature deciding what to tell juries about the burden of proof, and what constitutes “reasonable doubt”?
  • Do we want the Legislature to decide Rules of Evidence such as whether the jury can rely on hearsay; whether the jury can hear testimony that is irrelevant but prejudicial; whether a lawyer, spouse or ordained minister can be compelled to testify?
  • Do we want the Legislature involved in the process of setting bail?
  • Do we want the Legislature telling courts how to treat victims of child abuse?

CACR 26 would take New Hampshire on a voyage to a strange new world, where the Legislature has direct control of the Judiciary.  Where Court Rules would likely change every two years, depending on who is elected House Speaker and Senate President, and who gets named to the Judiciary Committee.  Where the branch of government that is supposed to protect our rights – supposed to protect us from Legislative excesses – would be run by the very politicians that we need to be protected against.

It would be the fox guarding the hen house.

Except in this case, New Hampshire citizens would be the hens.  Do we really want to trust the Legislature to protect us from laws that trample on our constitutional rights?

This brainstorm may have come from Bill O’Brien’s leadership team, but that doesn’t mean it’s actually a “conservative” idea.  Pick whatever politician you hate – Democrat or Republican – and then imagine that politician is in charge of the New Hampshire court system.  Now, imagine that you are a prisoner awaiting trial, or a divorced parent waiting for a custody decision, or a small business owner who is being sued by a customer, or an injured worker trying to get your employer to pay your medical bills.  If that politician you hate has control of the Judicial Branch, how many different ways could he (or she) keep you from getting the justice you deserve?

There is no limit to the different ways the Legislature could muck up New Hampshire’s court system, if we give them that power through CACR 26.

And then two years and another election later, the other political party could take control of the Legislature and ramrod through a set of changes in exactly the opposite direction.

As John Broderick, the former Chief Justice of the New Hampshire Supreme Court, told the Union Leader,

[the original framers of the Constitution] sought to protect the separation of governmental powers because they had lived under regimes that respected no dividing lines, when the Legislature could invade the province of the judiciary for purely partisan reasons or, perhaps, without any reason at all.

[J]udicial independence is not just about keeping the Legislature in check, as important as that is. It is also about fulfilling the constitutional guarantee to each citizen that the courts will act impartially and free from the influence of political interests.

As former Governor Steve Merrill and former New Hampshire Supreme Court Justice Joseph Nadeau told the NH Bar Association,

oversight of [Court] rules is oversight of administrative activities. And there is no place in a constitutional democracy for legislative intervention of the judicial branch. Political oversight of courts existed in dictatorships of Eastern Europe, Southeast Asia, and the former Russian Republics before they embraced democracy. We all know that resulted in judicial systems without independence, and without equal access or impartial justice.

If you’re a Democrat, imagine that the Republicans would be deciding Court Rules.

If you’re a Republican, imagine that the Democrats would be deciding Court Rules.

Either way, it’s probably not a very comfortable picture – especially if you end up looking to the court system for justice or to protect your rights.

In the case of CACR 26, the “conservative” vote is to keep our Constitution just the way it is.  The system of checks and balances between the Legislature and the Court system has worked for the past two centuries.  It’s protected our rights through Republican-led Legislatures – and sessions when the Democrats were in control.

Giving the Legislature control of the Court system wouldn’t work.  Maintaining the “balance of power” between branches of the government does.


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