February has been a spectacularly bad month for the Arizona House of Representatives. So far it has had to expel one member, Don Shooter, for sexual misconduct (which happened after law enforcement officers confiscated two handguns from his office). Then special legislation was introduced to try to prevent ‘revenge porn’ material (which may-or-may not feature explicit images of Representative Michelle Ugenti-Rita) from going public. Now, in a very controversial move, District 12 Representative Travis Grantham has proposed a resolution that could undermine the spirit of the 17th Amendment to the US Constitution.
Arizona State Legislature power grab?
Grantham’s resolution proposes that there no longer be party primaries for US Senate seats in Arizona. Instead voters would choose between candidates nominated by the Arizona legislature.
The resolution has already passed the committee stage. If implemented, HCR 2022 would be an enormous power-grab by the Arizona legislature. Grantham does not deny this. He argues this move would restore a long-lost check on federal power that was envisioned by the founding fathers (by giving state legislators like him a lot more power).
Rep Grantham’s resolution (if passed by the Arizona State Senate and signed by the Governor, and passed by a voter referendum) would result in an amendment to the Arizona state constitution. The amendment would end party primaries for US Senate seats, and instead each party caucus in the Arizona Legislature would nominate two candidates for the November general election ballot. As there are only two party caucuses in the Arizona legislature at present, only the Republican and Democratic parties would enjoy this privilege.
During a February 13th session of the Arizona House Federalism, Property Rights and Public Policy Committee, Travis Grantham explained his reasoning for proposing the resolution. He wants to restore the influence of the states in the Federal government.
Before the 17th Amendment was passed in 1913, US Senators were appointed by state legislatures. Instead of being popularly elected, each senator was more like an ambassador from his or her state government. Senators were naturally incentivized to listen more to the state legislators who sent them to Washington than the average voters, but it meant that the state governments had a voice in Federal government which they currently lack.
Travis Grantham clearly thinks the passing of the 17th Amendment, which requires US Senators to be “elected by the people” and not state legislatures, was a mistake. He argues having purely popularly elected Senators upsets the delicate system of checks and balances intended by the Founding Fathers.
As Grantham explained to his fellow committee members, “The United States Senate was never designed, nor was it intended to be a body of one hundred people elected by popular vote…The Founding Fathers would have never, ever, ever, ever have wanted to have what is in existence right now.”
Speaking of the pre-1913 system he added, “That was our voice. We don’t have it anymore.”
Although a bit obscure for the average voter, the 17th Amendment has long drawn the ire of old-school Federalists. Grantham’s proposal appears to be a clever work-around that would certainly make US Senators more beholden to the state legislatures, as they were originally intended. But would it work?
The holes in Travis Grantham’s resolution
However well meant, there are some real problems with HCR 2022.
What about Third Party primaries?
Like most states, the Arizona legislature is dominated by the Democratic and Republican parties. But there have been instances where, under current law, Third Parties qualify for their own primaries. Both the Green Party and Libertarian Party had primaries in the 2016 US Senate election in Arizona. Under Travis Grantham’s proposal these primaries, like all primaries for the US Senate, would be abolished.
Grantham seems to think that abolishing primaries would not change things for Third Parties. At the hearing he said, “This resolution…wouldn’t remove the capability of write-in candidates like the Green Party folks and those that are already out there that have that capability now.”
It appears Grantham is not aware that the Green Party and others do not always run for the US Senate as write-in candidates.
This resolution clearly abolishes all primaries for US Senate elections. There are two parties who lack caucuses in the Arizona Legislature but have had primaries recently for US Senate elections. If the 2016 US Senate election had been held using Travis Grantham’s proposed new rules, it is not at all clear how the Libertarians or Greens would have chosen their candidates, or if they would have been denied their hard-won ballot access altogether.
Williams v. Rhodes
In 1968 the US Supreme Court ruled in Williams v. Rhodes that it was unconstitutional for a state to place unfair burdens on minor parties that would prevent them from appearing on an election ballot. In the majority opinion, Justice Hugo Black argued that Ohio’s then burdensome requirements for ballot access were a violation of the First Amendment, saying:
No extended discussion is required to establish that the Ohio laws before us give the two old, established parties a decided advantage over any new parties struggling for existence, and thus place substantially unequal burdens on both the right to vote and the right to associate. The right to form a party for the advancement of political goals means little if a party can be kept off the election ballot, and thus denied an equal opportunity to win votes. So also, the right to vote is heavily burdened if that vote may be cast only for one of two parties at a time when other parties are clamoring for a place on the ballot. In determining whether the State has power to place such unequal burdens on minority groups where rights of this kind are at stake, the decisions of this Court have consistently held that
“only a compelling state interest in the regulation of a subject within the State’s constitutional power to regulate can justify limiting First Amendment freedoms.”
Travis Grantham’s proposed changes would effectively require new parties to form a caucus in the Arizona Legislature in order to get ballot access for US Senate elections, creating what would arguably be the most restrictive ballot access legislation in American history.
Subverting the 17th Amendment
Travis Grantham opened his remarks in the recent committee hearing saying, “I believe in strict adherence to the 17th amendment. I believe in strict adherence to the US Constitution.”
Far from accepting that his plans would subvert the 17th Amendment, he argued that the 17th Amendment requirement to have senators elected by the people is still technically met if they choose from a list of candidates that only legislators can nominate.
Whether or not restricting the choice of Arizona voters at a General Election technically meets the requirements of the 17th Amendment, it clearly violates its spirit. The 17th Amendment, whether for good or for bad, was clearly intended to remove power from state legislatures and give it to the people. Travis Grantham’s proposal would be an erosion of that shift in power.
It also seems disingenuous for Grantham to argue that he believes in strict adherence to the US Constitution as he attempts to sidestep the procedures for changing an amendment set out by the Founding Fathers in Article Five.
In order to repeal the 18th Amendment that brought in Prohibition, the passage of the 21st Amendment was required. Travis Grantham is attempting to roll back the 17th Amendment, at least partially, through a means that the Founding Fathers would (to quote Grantham) “never, ever, ever, ever have wanted to have.”
Ignoring Arizona’s legacy
While Travis Gratham obviously has great respect for the work of America’s Founding Fathers, he seems surprisingly willing to trample over the legacy of the Founding Fathers of Arizona.
By the early 20th Century the old system of Senators appointed by legislatures was increasingly unpopular. Many states had started running unofficial primaries to let voters choose who they thought should be nominated to the Senate, which state legislatures would later formally ratify. This was especially common in western states, where support for popularly elected Senators was strongest.
Arizona achieved statehood in 1912, a year before the 17th Amendment was enacted. To choose its two Senators, Arizona held two popular votes, each contested by three candidates (a Republican, a Democrat, and a Socialist). Henry Ashurst and Marcus Smith, the two Democrats, won their respective races. The Arizona Legislature, in its first ever session, duly enacted the will of the people.
But Arizona was not content to merely simulate popular elections for the US Senate, they were keen proponents of the real deal.
On June 3, 1912, sitting in its first ever special session, the First Arizona Legislature ratified the 17th Amendment to the US Constitution.
Only Massachusetts was faster to ratify the amendment, and by a mere eleven days.