A close look at a proposed Iowa constitutional amendment

Marty Ryan is a nearly retired lobbyist after 27 Iowa legislative sessions. -promoted by desmoinesdem

Lawmakers have introduced a glut of proposed amendments to Iowa’s Constitution in the legislature this year. So far, only two have survived. House Joint Resolution 2009 would guarantee the right to bear arms. Both chambers would have to pass identical language during the Eighty-Eighth General Assembly (2019-2020) in order to put that amendment on the November 2020 ballot for Iowans to approve or disapprove.

The other proposal is Senate Joint Resolution 2006, which would change the procedure for who succeeds the governor in case of death, resignation, impeachment, or inability to carry out the duties of governor. It also redefines the procedure for accomplishing that transition.

Reading the legalese of the legislative document will have you bored to death, confused, or excited to solve it like a New York Times Sunday Crossword Puzzle.

The impetus for SJR 2006 is the fiasco that occurred when Governor Terry Branstad resigned to take a position in President Trump’s administration as Ambassador to China. Lieutenant Governor Kim Reynolds assumed she would become governor and be able to name a new lieutenant governor without any trouble. The Iowa Constitution got in the way.

At first, Attorney General Tom Miller spoke too soon in saying that he saw no problem with Reynolds naming a new lieutenant governor to replace her. However, he said it off the top of his head, before his staff thoroughly researched the matter. Once his staff did conduct research, a different result came to light, thanks to independent State Senator David Johnson, who requested a formal opinion from the Attorney General, asking if the constitution gave Reynolds the authority to appoint a new lieutenant governor.

Shouts of partisanship were heard within certain political circles. But those who were convinced Reynolds could name a successor relied heavily upon a portion of the Iowa Code Section 69.8(2), which states that an “appointment by the governor to fill a vacancy in the office of lieutenant governor shall be for the balance of the unexpired term.” Since when is state law more controlling than a constitutional provision?

Back to this year’s proposal. Here is the full text:

Section 1. The following amendment to the Constitution of the State of Iowa is proposed:
Section 4 of Article IV of the Constitution of the State of Iowa, as amended by amendment number 1 of the Amendments of 1952 and by amendment number 1 of the Amendments of 1988, is repealed and the following adopted in lieu thereof:
Election by general assembly in case of tie —— inability of governor-elect to qualify —— succession by lieutenant governor —— inauguration of governor and lieutenant governor upon removal of inability of governor-elect to qualify. SEC. 4. The nominees for governor and lieutenant governor jointly having the highest number of votes cast for them shall be declared duly elected. If two or more sets of nominees for governor and lieutenant governor have an equal and the highest number of votes for the offices jointly, the general assembly shall by joint vote proceed, as soon as is possible, to elect one set of nominees for governor and lieutenant governor.
If after the final canvass of votes but before inauguration the governor-elect has since died, does not qualify, or is permanently unable to become governor, the lieutenant governor-elect shall become the governor upon inauguration, to the exclusion of any other office, for the residue of the term.
In the event of a temporary inability of the governor-elect to assume office, the lieutenant governor-elect shall become governor upon inauguration, until the inability is removed, at which time, the governor-elect and lieutenant governor-elect shall become governor and lieutenant governor, respectively, upon inauguration.
Section 10 of Article IV of the Constitution of the State of Iowa is amended to read as follows:
Vacancies —— lieutenant governor vacancy. SEC. 10. When any office, excluding the office of lieutenant governor, shall, from any cause, become vacant, and no mode is provided by the constitution and laws for filling such vacancy, the governor shall have power to fill such vacancy, by granting a commission, which shall expire at the end of the next session of the general assembly, or at the next election by the people.
When the office of lieutenant governor shall, from any cause, become vacant, and no mode is otherwise provided by the constitution for filling such vacancy, the governor shall have power to fill such vacancy for the residue of the term, by granting a commission, which shall expire as provided in the constitution.
Section 17 of Article IV of the Constitution of the State of Iowa is repealed and the following adopted in lieu thereof:
Lieutenant governor to become governor —— filling of lieutenant governor vacancy. SEC. 17. In case of death, impeachment, resignation, removal from office, or other inability to serve of the governor, the lieutenant governor shall succeed and become the governor, to the exclusion of any other office. If the preceding governor thereafter becomes able to serve, the preceding governor shall become governor and the succeeding governor shall resume the office of lieutenant governor, to the exclusion of any other office, each for the residue of the term, respectively. If the succeeding governor has filled a vacancy in the office of lieutenant governor by granting a commission, that commission shall expire upon the resumption of the office of lieutenant governor by the preceding lieutenant governor.
Section 19 of Article IV of the Constitution of the State of Iowa, as amended by amendment number 2 of the Amendments of 1952 and by amendment number 2 of the Amendments of 1988, is repealed and the following adopted in lieu thereof:
Succession to office of governor and lieutenant governor —— simultaneous inability to serve —— qualification of successor governor to office. SEC. 19. If the governor and lieutenant governor are simultaneously unable to serve, the president of the senate shall become governor, followed by the speaker of the house of representatives if the president of the senate is unable or unwilling to serve, followed by the president pro tempore of the senate if the speaker of the house of representatives is unable or unwilling to serve, followed by the speaker pro tempore of the house of representatives if the president pro tempore of the senate is unable or unwilling to serve, each succeeding, to the exclusion of any other office. If none of the above are able or willing to serve as governor and the general assembly is not in session, the justices of the supreme court shall convene the general assembly by proclamation and the general assembly shall organize by the election of a president of the senate and a speaker of the house of representatives. The president-elect of the senate shall then become governor. If at that time the president-elect of the senate is unable or unwilling to serve, the speaker-elect of the house of representatives shall become governor.
If the governor so succeeded becomes able to serve, the governor so succeeded shall resume the office of governor. If the lieutenant governor so succeeded becomes able to serve while the governor so succeeded remains unable to serve, the lieutenant governor so succeeded shall assume the office of governor.
Sec. 2. REFERRAL AND PUBLICATION. The foregoing proposed amendment to the Constitution of the State of Iowa is referred to the general assembly to be chosen at the next general election for members of the general assembly, and the secretary of state is directed to cause the proposed amendment to be published for three consecutive months previous to the date of that election as provided by law.

The proposal does a few things. First, it repeals two amendments to the Iowa Constitution, one of which has already been repealed (Amendment Number 1 of the 1952 Amendments was repealed by Amendment Number 1 of the 1988 Amendments).

This is what the first 1952 amendment did:

AMENDMENTS OF 1952
[19] Amendment 1. Section four (4) of Article IV of the Constitution of Iowa is amended by adding thereto the following:
Death of governor-elect or failure to qualify. [If, upon the completion of the canvass of votes for Governor and Lieutenant Governor by the General Assembly, it shall appear that the person who received the highest number of votes for Governor has since died, resigned, is unable to qualify, fails to qualify, or for any other reason is unable to assume the duties of the office of Governor for the ensuing term, the powers and duties of the office shall devolve upon the person who received the highest number of votes for Lieutenant Governor until the disability is removed and, upon inauguration, he shall assume the powers and duties of Governor.]* *In 1988 the above amendment was repealed by Amendment [41]

The first of the 1988 amendments repealed the language above and replaced it as such:

AMENDMENTS OF 1988
[41] Amendment 1. Section 2 of Article IV of the Constitution of the State of Iowa, as amended by amendment number 1 of the Amendments of 1972, is repealed beginning with the general election in the year 1990 and the following adopted in lieu thereof:
Election and term. SEC. 2. The governor and the lieutenant governor shall be elected by the qualified electors at the time and place of voting for members of the general assembly. Each of them shall hold office for four years from the time of installation in office and until a successor is elected and qualifies.
Section 3 of Article IV of the Constitution of the State of Iowa, as amended by amendment number 1 of the Amendments of 1972, is repealed beginning with the general election in the year 1990 and the following adopted in lieu thereof:
Governor and lieutenant governor elected jointly — returns of elections. SEC. 3. The electors shall designate their selections for governor and lieutenant governor as if these two offices were one and the same. The names of nominees for the governor and the lieutenant governor shall be grouped together in a set on the ballot according to which nominee for governor is seeking office with which nominee for lieutenant governor, as prescribed by law. An elector shall cast only one vote for both a nominee for governor and a nominee for lieutenant governor. The returns of every election for governor and lieutenant governor shall be sealed and transmitted to the seat of government of the state, and directed to the speaker of the house of representatives who shall open and publish them in the presence of both houses of the general assembly.
Section 4 of Article IV of the Constitution of the State of Iowa, as amended by amendment number 1 of the Amendments of 1952, is repealed beginning with the general election in the year 1990 and the following adopted in lieu thereof:

That change stipulated that the governor and lieutenant governor would run on the same political party ticket, as do the president and vice president. Prior to the 1988 amendments, Iowa’s governor and lieutenant governor ran for office separately.

The first section of this year’s proposed amendment contains several potential incidents that may or may not happen. The first paragraph clarifies what should occur if there is a tie between two nominees for governor and lieutenant governor. Obviously, the general assembly should decide. Or should it? Naturally, the party with the most senators and representatives will decide that its nominee will prevail. There are problems with that.

The vote is to be taken jointly. A 30-20 majority of Party “A” in the Senate would mean nothing if Party “B” had a slim 56-44 majority in the House. And if the House was split 55-45 with Party (B) holding the majority, we would get nowhere as a state. Someone would have to break from their respective caucus, and that would be disastrous for that individual legislator. Or, that legislator could be a hero. But what are the odds of even having both major party nominees tying for the top executive spot? The Iowa Senate was evenly split not that long ago (2005-2006).

Then again, the first paragraph with all the potential problems should not be considered when deciding whether to support the proposal. All of that language is already in the state constitution.

The second paragraph of section 1 is where you start to see change. I have underlined new language and struck out old language:

If, after the final canvass of votes but before inauguration the governor-elect has since died, does not qualify, or is permanently unable to become governor, the lieutenant governor-elect shall become the governor upon inauguration, to the exclusion of any other office, for the residue of the term. In the event of a temporary inability of the governor-elect to assume office, the lieutenant governor-elect shall become governor upon inauguration, until the inability is removed, at which time, the governor-elect and lieutenant governor-elect shall become governor and lieutenant governor, respectively, upon inauguration. upon the completion by the general assembly of the canvass of votes for governor and lieutenant governor, it appears that the nominee for governor in the set of nominees for governor and lieutenant governor receiving the highest number of votes has since died or resigned, is unable to qualify, fails to qualify, or is for any other reason unable to assume the duties of the office of governor for the ensuing term, the powers and duties shall devolve to the nominee for lieutenant governor of the same set of nominees for governor and lieutenant governor, who shall assume the powers and duties of governor upon inauguration and until the disability is removed. If both nominees for governor and lieutenant governor are unable to assume the duties of the office of governor, the person next in succession shall act as governor.

That process of devolving has been removed. The lieutenant “shall” become governor. However, this scenario occurs only if the governor-elect has “died, does not qualify, or is permanently unable to become governor.” That makes sense, but it doesn’t make sense that if the obstacle to having the governor-elect is temporary, the lieutenant governor-elect “shall” be inaugurated as the governor until the governor-elect becomes well again. Then, we have an inauguration all over again. That’s too much pomp and circumstance for me.

The question on your mind must be: If the lieutenant governor-elect becomes governor while the governor-elect is recovering from some malady that prevents the governor-elect from being inaugurated, does the sitting governor, who was the lieutenant governor-elect, get to choose a temporary lieutenant governor? YES! The next part of the proposal pertains to the opening of the position of lieutenant governor:

When the office of lieutenant governor shall, from any cause, become vacant, and no mode is otherwise provided by the constitution for filling such vacancy, the governor shall have power to fill such vacancy for the residue of the term, by granting a commission, which shall expire as provided in the constitution.

The last phrase of that provision, “as provided in the constitution”, has meaning. Another amendment to the Constitution, which is part of this amending process, strikes the current Section 17 and replaces it with new language. First, the old language of Section 17 states:

Lieutenant governor to act as governor. SEC. 17. In case of the death, impeachment, resignation, removal from office, or other disability of the governor, the powers and duties of the office for the residue of the term, or until he shall be acquitted, or the disability removed, shall devolve upon the lieutenant governor.

The new language says:

Lieutenant governor to become governor —— filling of lieutenant governor vacancy. SEC. 17. In case of death, impeachment, resignation, removal from office, or other inability to serve of the governor, the lieutenant governor shall succeed and become the governor, to the exclusion of any other office. If the preceding governor thereafter becomes able to serve, the preceding governor shall become governor and the succeeding governor shall resume the office of lieutenant governor, to the exclusion of any other office, each for the residue of the term, respectively. If the succeeding governor has filled a vacancy in the office of lieutenant governor by granting a commission, that commission shall expire upon the resumption of the office of lieutenant governor by the preceding lieutenant governor.

Again, as you can see, the word “devolve” has disappeared and the word “shall” is inserted to make sure that everyone, including the attorney general, will understand it. But it makes a mess. What is the point of having a temporary lieutenant governor? If the governor becomes incapacitated for a period of time – let’s say, 6 months – and the lieutenant governor becomes governor and commissions a new lieutenant governor, will the temporary lieutenant governor, who may have been a legislator, go back to whatever position the temp had before being lieutenant governor for six months? With Chapter 20 (Public Employee Relations – Collective Bargaining) gutted last year, seniority must be a thing of the past. Who would want the position of “temporary lieutenant governor”? And shouldn’t Iowans be leery of a person who would crave or desire that temp job?

This part of the proposal may be undesirable.

The final segment of the constitutional proposal states:

Succession to office of governor and lieutenant governor —— simultaneous inability to serve —— qualification of successor governor to office. SEC. 19. If the governor and lieutenant governor are simultaneously unable to serve, the president of the senate shall become governor, followed by the speaker of the house of representatives if the president of the senate is unable or unwilling to serve, followed by the president pro tempore of the senate if the speaker of the house of representatives is unable or unwilling to serve, followed by the speaker pro tempore of the house of representatives if the president pro tempore of the senate is unable or unwilling to serve, each succeeding, to the exclusion of any other office. If none of the above are able or willing to serve as governor and the general assembly is not in session, the justices of the supreme court shall convene the general assembly by proclamation and the general assembly shall organize by the election of a president of the senate and a speaker of the house of representatives. The president-elect of the senate shall then become governor. If at that time the president-elect of the senate is unable or unwilling to serve, the speaker-elect of the house of representatives shall become governor.
If the governor so succeeded becomes able to serve, the governor so succeeded shall resume the office of governor. If the lieutenant governor so succeeded becomes able to serve while the governor so succeeded remains unable to serve, the lieutenant governor so succeeded shall assume the office of governor.

This is the succession clause. I can’t figure out why it is necessary. If the lieutenant governor, who becomes governor, commissions a new lieutenant governor immediately, there will be a very small window in which to pass the baton to the president of the senate, or the speaker, or on down the line.

Unless a terrible accident should occur in which the governor and lieutenant governor are simultaneously killed or incapacitated. God forbid that should happen, but as it is, and has been for quite some time, the two often travel together. Even corporate honchos know enough to preclude top officials in the corporation from traveling in the same vehicles, planes, and other modes of transportation.

This final part of the proposed constitutional amendment would make more sense if Iowa did away with the position of lieutenant governor. Arizona, Maine, New Hampshire, Oregon, and Wyoming operate fine without the position. My idea of a constitutional amendment on the issue of lieutenant governor is to abolish the position. Is it really necessary? Or has it become archaic and symbolic? Iowa could save a considerable amount of money that is spent in salary and benefits (not just the lieutenant governor position, but support staff as well) by eliminating the need for a second team cheerleader of the state.

It’s possible that a lieutenant governor, who becomes governor upon the resignation, death, etc. of the sitting governor, commissions a new lieutenant governor who is the person’s spouse, or a major donor to the new governor’s campaign – sort of a payback – heh? There is nothing to prevent it. In this day and age, I wouldn’t be surprised if a corporation was commissioned as the lieutenant governor. After all, as Mitt Romney reminded us: “Corporations are persons, too.”

The Iowa Official Register, often referred to as The Redbook, says: “The role of Lieutenant Governor is not statutorily defined in the Iowa Code; under the Iowa Constitution, the Lieutenant Governor of Iowa performs those duties assigned to the Lieutenant Governor by the Governor.”

I think we saw that the purpose of having a lieutenant governor during Governor Branstad’s second time around was to clone his successor. Perhaps that is what Iowans want. I don’t.

I will not be voting in favor of this constitutional proposal. I don’t want anyone to think that because I oppose it that it is horrible, even if I did question its need. You need to know that I have never in my life voted in favor of an amendment to the Iowa Constitution – not even the proposal to eliminate the provision that prohibits someone from holding office if they have participated in a duel.

Dueling. SEC. 5. [Any citizen of this State who may hereafter be engaged, either directly, or indirectly, in a duel, either as principal, or accessory before the fact, shall forever be disqualified from holding any office under the Constitution and laws of this State.]* *This section repealed by Amendment [43]

I recall proponents, mostly the late Democratic State Representative Clay Spear, claiming that no one is involved in duels anymore. Call me prophetic, but isn’t that what we call “stand your ground” today? At no time did I feel that this provision was worth removing from the constitution.

I also opposed a 1998 amendment initiated by the Attorney General. Today, uncollected court debt is outstanding (no pun intended). Iowans approved an amendment to Article I, Section 11, in 1998, which removed the $100 limit on simple misdemeanors, which follows:

When indictment necessary. SEC. 11. All offences less than felony and in which the punishment does not exceed a fine of One hundred dollars, or imprisonment for thirty days, shall be tried summarily before a Justice of the Peace, or other officer authorized by law, on information under oath, without indictment, or the intervention of a grand jury, saving to the defendant the right of appeal; and no person shall be held to answer for any higher criminal offence, unless on presentment or indictment by a grand jury,* except in cases arising in the army, or navy, or in the militia, when in actual service, in time of war or public danger. *As to indictment and the number of grand jurors, see Amendment [9] In 1998, unnumbered paragraph 1 of this section was amended: See Amendment [46]

And replaced it with:

When indictment necessary — grand jury. SEC. 11. All offences offenses less than felony and in which the punishment does not exceed a fine of one-hundred dollars, or maximum permissible imprisonment for does not exceed thirty days, shall be tried summarily before a justice of the peace, or other an officer authorized by law, on information under oath, without indictment, or the intervention of a grand jury, saving to the defendant the right of appeal; and no person shall be held to answer for any higher criminal offence offense, unless on presentment or indictment by a grand jury, except in cases arising in the army, or navy, or in the militia, when in actual service, in time of war or public danger.

The maximum permissible fine for a simple misdemeanor is $625. Although the floor is a $65 fine, the top end has become the norm. $100 remains a lot of money for many people – most Iowans who fall into the category of having to pay fines.

The Iowa House approved SJR 2006 on a party-line vote April 11. The Iowa Senate passed the amendment with bipartisan support on April 17. If lawmakers approve the same legislation in 2019 or 2020, Iowans will vote in November 2020 on whether to add this language to the constitution.

As with all constitutional amendments, Iowa Code Section 49.44 requires the secretary of state to prepare a summary if the proposal needs clarification.

49.44 Summary. 1. When a proposed constitutional amendment or other public measure to be decided by the voters of the entire state is to be voted upon, the state commissioner shall prepare a written summary of the amendment or measure including the number of the amendment or statewide public measure assigned by the state commissioner. The summary shall be printed immediately preceding the text of the proposed amendment or measure on the paper ballot or optical scan ballot referred to in section 49.43. If the complete text of the public measure will not fit on the ballot it shall be posted inside the voting booth. A copy of the full text shall be included with any absentee ballots. 2. The commissioner may prepare a summary for public measures if the commissioner finds that a summary is needed to clarify the question to the voters.

Be assured that the summary will be controversial in itself.

Vote your conscience. I may not have interpreted the constitutional proposal correctly, but I am voting no.

Top image: Marty Ryan.

  • I'm grateful for this analysis

    Thank you, Marty Ryan.

  • But What About...

    Good stuff, Marty! Am I reading Section 17 right when I interpret it to say that a governor could resign the office and later change his/her mind and reassume it, forcing the sitting governor out? The clause lists resignation as a reason a governor might vacate the office, then says, “or OTHER inability to serve,” which therefore classifies “resignation” as just another “inability” one might recover from. Obviously, the other potential reasons for vacating the office listed–impeachment, removal, and death–would preclude ever “becoming able” to serve again. But resignation would not. I can’t think of any other profession from which you can resign and simply decide to take your old job back, no questions asked. But unless I’m missing something here, I don’t see another way to interpret it. I’d love to hear what you think!

    “Lieutenant governor to become governor —— filling of lieutenant governor vacancy. SEC. 17. In case of death, impeachment, resignation, removal from office, or other inability to serve of the governor, the lieutenant governor shall succeed and become the governor, to the exclusion of any other office. If the preceding governor thereafter becomes able to serve, the preceding governor shall become governor and the succeeding governor shall resume the office of lieutenant governor, to the exclusion of any other office, each for the residue of the term, respectively.”

    • Coryiniowa

      I don’t think a governor can resign and then want the job back just by saying so. However, I see your point. The language is rather clumsy. But constitutional language is often broad, and should be. It is up to the courts to interpret it. I hope the courts never have the opportunity. If a governor becomes incapacitated by illness, the governor could take a year to recover and then come back and be governor again once he/she is healthy. It’s a process his/her employees do not have under Chapter 20 any longer.

      • Agreed

        Thanks for your take on it. “Clumsy” is the perfect word, because I agree; it seems highly unlikely anyone wanted it to convey that meaning. Nonetheless, it’s totally the appropriate interpretation if you’re one of those textualists. To get around it you’d have to say resignation is in and of itself disqualifying for future service. And that’s not the popular understanding of what resignation means. Scalia would’ve totally picked up what I’m putting down here. Removing the word “other” fixes all of it.

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