Legislatively-referred constitutional amendment

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A legislatively-referred constitutional amendment is a proposed constitutional amendment that appears on a state's ballot as a ballot measure because the state legislature in that state voted to put it before the voters.

A legislatively-referred constitutional amendment is a limited form of direct democracy with comparison to the initiated constitutional amendment. With the initiated constitutional amendment, voters can initiate the amendment and approve it, whereas with the legislatively-referred amendment, they can only approve or reject amendments initiated by their state's legislature.

49 states have a law in place that allows citizens to vote on proposed constitutional amendments offered by the state legislature. The exception is Delaware, where the legislature alone acts on constitutional amendments.

Differing methods

Main article: Amending state constitutions

The 49 states where state constitutions can be changed via a referred amendment differ in the rules and procedures governing the process.

Areas of difference include:

  • The number of times that the state's legislature must vote on the amendment before it can go before the state's voters.
  • The size of the affirmative vote required in a state legislature: Simple majority? Supermajority? If a supermajority vote is required, what exact percentage is required?
  • Once the proposed amendment goes before the state's voters, what percentage of them must vote in favor for the measure to be approved and go into the state's constitution?
  • Can the state legislature decree a special election date for the vote on the proposed amendment, or is it only allowed to refer potential amendments to a general election ballot?
  • State requirements also differ with respect to how, where and when voters must be notified that there will be an election on a proposed amendment.
  • States differ with respect to whether an amendment can originate in the upper house, the lower house or (in most cases) either chamber of the state legislature.
  • Whether there is an absolute limit on how many proposed amendments can go on any one statewide ballot.
  • The number of articles of the state's constitution to which amendments can be proposed by any one session of that state's state legislature.
  • Whether there are any subjects (political or legal topics) that are prohibited.
  • Whether proposed amendments must conform to a single-subject rule.
  • When, after an election where a proposed amendment is approved, it legally becomes part of the state constitution.
  • The role, if any, of the state's governor or any other statewide constitutional officer in the process.

Number of legislative sessions

One way that the process of using legislatively-referred constitutional amendments to alter a state constitution differs is with respect to the question of how many different sessions of the state legislature must convene to vote on the proposed amendment. 35 of the 49 states that use this process say that the proposed amendment must only be approved in one session. These states vary with respect to the size of the vote required in that one legislative session, and several states have additional complex requirements, including 4 states where a proposed amendment can go on the ballot after a vote in one legislative session, if certain hurdles are met that do not apply if the state legislature considers the amendment in two sessions.

One session

Majority vote

Ten states allow a referred amendment to go on the ballot after a majority vote in one session of the state's legislature.

  • North Dakota: Section 16 of Article IV of the North Dakota Constitution very simply says, "Any amendment to this constitution may be proposed in either house of the legislative assembly, and if agreed to upon a roll call by a majority of the members elected to each house, must be submitted to the electors and if a majority of the votes cast thereon are in the affirmative, the amendment is a part of this constitution."
  • Oklahoma. The Oklahoma State Legislature can approve a proposed amendment by a majority vote. (However, if the state legislature wants the proposed amendment to go on a special election ballot, it has to approve the amendment by a 2/3rds vote.)

60% supermajority

Nine states allow a referred amendment to go on the ballot after a 60% supermajority vote in one session of the state's legislature.

  • Kentucky: If 60% of the membership of each chamber of the Kentucky General Assembly approves, a proposed amendment goes on the ballot at the next general election during which members of the state legislature are up for election.

2/3rds supermajority

Sixteen states require a 2/3rds supermajority vote in one session of the state's legislature before placing a proposed amendment on the ballot.

In three additional states, a 2/3rds supermajority vote is required in some, but not all, situations: In South Carolina, an amendment also goes on the ballot after a 2/3rds vote in one legislative session, but it must go back to the legislature if the state's voters approve it, while in Pennsylvania, an amendment can go on the ballot after just one session, but only if the legislature declares an emergency. (In the absence of an emergency, the amendment must be considered in two separate legislative sessions.) In Oklahoma, a 2/3rds vote is only necessary if the state legislature wants the amendment to go on a special election ballot; if not, a majority vote in one legislative session suffices.

  • Colorado: Two-thirds of each chamber of the Colorado General Assembly must vote affirmatively for a proposed amendment in order for it to go on the statewide ballot for potential voter ratification.
  • Georgia: A proposed amendment must be approved by 2/3rds of the membership of each chamber of the Georgia General Assembly before going to the state's voters.
  • Louisiana: If 2/3rds of the members of both houses of the Louisiana State Legislature vote in the affirmative, a legislatively-referred constitutional amendment can be placed on a statewide ballot.
  • Oklahoma. In general, it only takes a majority vote of the Oklahoma State Legislature to place a proposed amendment on the ballot. However, if the state legislature wants the proposed amendment to go on a special election ballot, it has to approve the amendment by a 2/3rds vote.
  • Pennsylvania. A majority vote is required (in two successive sessions of) the Pennsylvania General Assembly. However, when a "major emergency threatens or is about to threaten the Commonwealth", the legislature can put a proposed amendment on the ballot in just one legislative session, if they gain a 2/3rds vote on the proposed amendment.
  • Utah. According to Section 1, Article XXIII, a two-thirds vote is necessary in the state legislature to place a proposed amendment before the state's voters.

Two sessions

In 12 states, proposed amendments are considered in two successive sessions of the state's legislature. In one of these states, South Carolina, the state legislature votes to put the amendment before the state's voters in just one session and later, if the state's voters approve the amendment, the state legislature takes it up again.

  • Pennsylvania. A majority vote is required (in two successive sessions of) the Pennsylvania General Assembly. However, when a "major emergency threatens or is about to threaten the Commonwealth", the legislature can put a proposed amendment on the ballot in just one legislative session, if they gain a 2/3rds vote on the proposed amendment.
  • Tennessee. The Tennessee General Assembly must approve a proposed amendment in two successive sessions. In the second such session, the proposed amendment must earn 2/3rds approval (in the first session, it only needs majority approval).
  • Vermont. Amendments in Vermont must be considered in two successive sessions of the Vermont General Assembly. The second time they are considered, they need win only a majority vote. (In the first legislative session where an amendment is considered, it must win a majority vote of the state house but a 2/3rds vote of the Vermont State Senate.)

Note: Delaware requires votes in two successive sessions of its state legislature, but these proposed amendments do not go before the state's voters.

Either/or

Four states (Connecticut, Hawaii, New Jersey and Pennsylvania) have an either/or system: a proposed amendment must be passed by simple majority in two separate legislative sessions, or by a supermajority vote of one session.[1]

  • In Hawaii, the state legislature must approve a proposed amendment by a supermajority vote of 2/3rds but the same amendment can also qualify for the ballot if successive sessions of the Hawaii State Legislature approve it by a simple majority.
  • In Pennsylvania, two successive sessions of the state legislature may, by a simple majority vote each time, refer a proposed amendment to the ballot. But, if the legislature deems that a "major emergency threatens or is about to threaten the Commonwealth" it can put a measure on the ballot in just one session of the legislature, if there is a 2/3rds vote to do so.

Size of vote in legislature

Majority (One session)

Ten states allow a referred amendment to go on the ballot after a majority vote in one session of the state's legislature.

  • North Dakota: Section 16 of Article IV of the North Dakota Constitution very simply says, "Any amendment to this constitution may be proposed in either house of the legislative assembly, and if agreed to upon a roll call by a majority of the members elected to each house, must be submitted to the electors and if a majority of the votes cast thereon are in the affirmative, the amendment is a part of this constitution."
  • Oklahoma. The Oklahoma State Legislature can approve a proposed amendment by a majority vote. (However, if the state legislature wants the proposed amendment to go on a special election ballot, it has to approve the amendment by a 2/3rds vote.)

Majority (Two sessions)

Seven states allow a referred amendment to go on the ballot after a majority vote in two successive sessions of the state's legislature. The requirements in Connecticut, Hawaii, New Jersey, Pennsylvania and Vermont, detailed below, are slightly more complex.

  • In Hawaii, the state legislature must approve a proposed amendment by a supermajority vote of 2/3rds but the same amendment can also qualify for the ballot if successive sessions of the Hawaii State Legislature approve it by a simple majority.
  • Pennsylvania. A majority vote is required (in two successive sessions of) the Pennsylvania General Assembly. However, when a "major emergency threatens or is about to threaten the Commonwealth", the legislature can put a proposed amendment on the ballot in just one legislative session, if they gain a 2/3rds vote on the proposed amendment.
  • Vermont. Amendments in Vermont must be considered in two successive sessions of the Vermont General Assembly. The second time they are considered, they need win only a majority vote. (In the first legislative session where an amendment is considered, it must win a majority vote of the state house but a 2/3rds vote of the Vermont State Senate.)

60% supermajority

Nine states allow a referred amendment to go on the ballot after a 60% supermajority vote in one session of the state's legislature.

  • Kentucky: If 60% of the membership of each chamber of the Kentucky General Assembly approves, a proposed amendment goes on the ballot at the next general election during which members of the state legislature are up for election.

2/3rds supermajority

Seventeen states allow a referred amendment to go on the ballot after a 2/3rds supermajority vote in one session of the state's legislature. 3 other states require a 2/3rds vote at some point in their process, or during exceptional circumstances, but not at all times or points in the process.

  • Colorado: Two-thirds of each chamber of the Colorado General Assembly must vote affirmatively for a proposed amendment in order for it to go on the statewide ballot for potential voter ratification.
  • Georgia: A proposed amendment must be approved by 2/3rds of the membership of each chamber of the Georgia General Assembly before going to the state's voters.
  • Louisiana: If 2/3rds of the members of both houses of the Louisiana State Legislature vote in the affirmative, a legislatively-referred constitutional amendment can be placed on a statewide ballot.
  • Oklahoma. In general, it only takes a majority vote of the Oklahoma State Legislature to place a proposed amendment on the ballot. However, if the state legislature wants the proposed amendment to go on a special election ballot, it has to approve the amendment by a 2/3rds vote.
  • Pennsylvania. A majority vote is required (in two successive sessions of) the Pennsylvania General Assembly. However, when a "major emergency threatens or is about to threaten the Commonwealth", the legislature can put a proposed amendment on the ballot in just one legislative session, if they gain a 2/3rds vote on the proposed amendment.
  • Tennessee. The Tennessee General Assembly must approve a proposed amendment in two successive sessions. In the second such session, the proposed amendment must earn 2/3rds approval (in the first session, it only needs majority approval).
  • Utah. According to Section 1, Article XXIII, a two-thirds vote is necessary in the state legislature to place a proposed amendment before the state's voters.
  • Vermont. Amendments in Vermont must be considered in two successive sessions of the Vermont General Assembly. The second time they are considered, they need win only a majority vote. However, in the first legislative session where an amendment is considered, it must win a majority vote of the state house but a 2/3rds vote of the Vermont State Senate.

Either/or

Four states (Connecticut, Hawaii, New Jersey and Pennsylvania) have an either/or system: a proposed amendment must be passed by simple majority in two separate legislative sessions, or by a supermajority vote of one session.[2]

  • In Hawaii, the state legislature must approve a proposed amendment by a supermajority vote of 2/3rds but the same amendment can also qualify for the ballot if successive sessions of the Hawaii State Legislature approve it by a simple majority.
  • In Pennsylvania, two successive sessions of the state legislature may, by a simple majority vote each time, refer a proposed amendment to the ballot. But, if the legislature deems that a "major emergency threatens or is about to threaten the Commonwealth" it can put a measure on the ballot in just one session of the legislature, if there is a 2/3rds vote to do so.

75% supermajority

New Mexico has a unique provision such that any amendments to the New Mexico Constitution proposed by the New Mexico State Legislature that would "restrict the rights created by Section 1 or Section 3 of Article VII or Section 8 and Section 10 of Article XII must win a 75% vote of the state legislature to go on the ballot.

Size of popular vote

Simple majority

Referred amendments are approved by a simply majority vote in Alabama, Alaska, Arizona, Arkansas, California, Colorado, Connecticut, Georgia, Idaho, Indiana, Iowa, Kansas, Kentucky, Maine, Minnesota, Mississippi, Missouri, New Jersey, New Mexico, New York, North Carolina, North Dakota, Ohio, Oklahoma, Oregon, Pennsylvania, Rhode Island, South Carolina, South Dakota, Vermont, Virginia, Washington, West Virginia, Wisconsin.

In Louisiana, a simple majority vote is required to approve an amendment, unless the amendment affects five or fewer parishes, in which case it has to be approved by a majority statewide vote and by a majority vote in the parishes it affects. The same thing is true for an amendment that affects five or fewer municipalities in the state.

In Maryland, Article XIV of the Maryland Constitution allows for the possibility that some proposed constitutional amendments may apply to only one county (or the City of Baltimore, which is governed independently of a county structure). In this case, Article XIV says that in order to become part of the constitution, the proposed amendment must be approved by a majority vote not just statewide, but specifically in the county (or Baltimore) to which it exclusively applies.

60% supermajority

  • Illinois. For a referred amendment to win in Illinois, it must win a supermajority vote of 60% of those voting on the question or a majority of those who cast a ballot for any office in that election.

2/3rds supermajority

  • New Hampshire: A proposed amendment must be approved by 2/3rds of those voting in order to become part of the state's constitution.

Double majority

Several states require a so-called double majority vote on proposed amendments. This means that the ballot question must win not just a majority of all votes cast on that particular proposal, but a majority of the vote of everyone voting in that election, even if not all voters cast a vote for or against a proposed amendment.

  • In Hawaii, a proposed amendment is considered to be approved if:
  • It is approved by a majority of all the votes tallied upon the question if this majority constitutes at least 50% of the total vote cast at the election, or,
  • If approved at a special election by a majority of all the votes tallied upon the question, if this majority consists of at least 30% of the total number of registered voters in the state at that time.
  • Illinois. For a referred amendment to win in Illinois, it must win a supermajority vote of 60% of those voting on the question or a majority of those who cast a ballot for any office in that election.
  • Tennessee. A proposed amendment in Tennessee must earn a majority of those voting on the amendment, and "a majority of all the citizens of the state voting for governor."
  • Utah. A proposed amendment in Utah requires a vote of at least a "majority of the electors of the State voting at the next general election." This means that more voters can vote "yes" on a particular amendment than "no" and it still might lose, depending on how many voters altogether vote in that election.

Other

  • In Nebraska, a proposed amendment becomes part of the Nebraska Constitution if it wins a majority vote and it wins the votes of at least 35% of those voting in the election for any office.
  • In Louisiana, amendments to the constitution can be proposed that directly affect voters in just part of the state. If an amendment affects five or fewer parishes it has to be approved by a majority statewide vote and by a majority vote in the parishes it affects. The same thing is true for an amendment that affects five or fewer municipalities in the state.
  • In Maryland, Article XIV of the Maryland Constitution allows for the possibility that some proposed constitutional amendments may apply to only one county (or the City of Baltimore, which is governed independently of a county structure). In this case, Article XIV says that in order to become part of the constitution, the proposed amendment must be approved by a majority vote not just statewide, but specifically in the county (or Baltimore) to which it exclusively applies.

To a public vote and back again

South Carolina has a unique provision under which amendments must be:

  • Approved by a two-thirds vote in each chamber of the state's legislature.
  • Approved by a statewide popular vote (simple majority)
  • The amendment then goes back to the legislature, which must approve it by a simple majority. This second vote in the state legislature must take place "after the election and before another".

Special or general election?

State constitutions differ on the question of whether a state legislature can call a special election to vote on an amendment they wish to propose to the people.

General only

20 state constitutions specify that amendments proposed by the state legislature can only go on the ballot at a general election.

Prior to 1974, Alaskan amendments could go on a special election ballot, but the Alaska Constitution was amended via Alaska Votes on Constitutional Amendments (1974) to require that such votes take place only on a general election date.

Gubernatorial election

  • Tennessee. In this state, amendments must go on the general election ballot in the year of a gubernatorial election.

Special possible

25 state constitutions explicitly allow amendments proposed by the state legislature to go on the ballot at a special or a general election.

West Virginia has a unique requirement with regard to voting on amendments at special elections: "Whenever one or more amendments are submitted at a special election, no other question, issue or matter shall be voted upon at such special election."

Nebraska also has a unique provision: Although the legislature can call a special statewide election to vote on a proposed amendment, an 80% affirmative vote is required.

In Oklahoma, if the legislature wants a proposed amendment to go on a special election ballot, it has to approve the amendment by a 2/3rds vote.

Silent

4 state constitutions are silent with respect to whether their state legislature can refer an amendment to the ballot at a special election.

Cap on number of proposals

Four states have a cap on how many amendments their state legislature is allowed to place on any one ballot. States with such limits are:

  • Kansas. There is a cap of five proposed amendments on any one ballot. The Kansas State Legislature, however, can call special elections for voting on amendments.
  • Kentucky. There is a cap of four proposed amendments on any one ballot.

Note: In the case of Arkansas, Illinois and Kentucky, their state legislatures are only allowed to vote proposals onto the ballot for general elections; that is, these state legislatures can't decree special elections for the purpose of voting on proposed amendments. This makes their caps more stringent than if in these states, amendments could be placed on special election ballots, as is the case in 20 states, including Kentucky.

Unique provisions

In Colorado, no one session of the Colorado General Assembly is allowed to propose amendments to more than six of the Colorado Constitution's 29 articles.

In Illinois, the legislature is not allowed to propose any amendments when a constitutional convention has been called up through the time that an election is held on any proposed amendments or revisions that arise from that convention.

In Georgia, the Georgia General Assembly is allowed to repeal a previous vote to put a proposed amendment on the ballot if they do so with a 2/3rds vote of both chambers and at least two months before the election would have occurred.

In Louisiana, amendments to the constitution can be proposed that directly affect voters in just part of the state. If an amendment affects five or fewer parishes it has to be approved by a majority statewide vote and by a majority vote in the parishes it affects. The same thing is true for an amendment that affects five or fewer municipalities in the state.

In Maryland, Article XIV of the Maryland Constitution allows for the possibility that some proposed constitutional amendments may apply to only one county (or the City of Baltimore, which is governed independently of a county structure). In this case, Article XIV says that in order to become part of the constitution, the proposed amendment must be approved by a majority vote not just statewide, but specifically in the county (or Baltimore) to which it exclusively applies.

By statute, proposed constitutional amendments in Minnesota are printed on a pink ballot.[3]

In Nebraska, the legislature can call a special statewide election to vote on a proposed amendment, but an 80% vote is required to place any such measures on a special election ballot.

In New Jersey, if a proposed amendment fails, it (or a similar but not identical amendment) can't go back on the ballot "before the third general election thereafter."

In New Mexico, notification that a proposed amendment will be on the ballot must be published in each county in the state and in both English and Spanish when newspapers in both languages are published in a particular county. New Mexico is the only state with an explicit bilingual requirement for voter notification of proposed amendments.

In Ohio, Section 1 of Article XVI of the Ohio Constitution says "No such case challenging the ballot language, the explanation, or the actions or procedures of the General Assembly in adopting and submitting a constitutional amendment shall be filed later than sixty-four days before the election."

The Pennsylvania Constitution has a provision that the Pennsylvania General Assembly is only allowed to refer the same amendment to the state's voters once in every five year period. ("...no amendment or amendments shall be submitted oftener than once in five years.")

In Vermont, amendments can only be proposed once in a four-year period.

West Virginia has a unique requirement with regard to voting on amendments at special elections: "Whenever one or more amendments are submitted at a special election, no other question, issue or matter shall be voted upon at such special election."

Other types of ballot measures

See also

External links

References

  1. ↑ Comparative Analysis of the mode of amending state constitutions, p. 108
  2. ↑ Comparative Analysis of the mode of amending state constitutions, p. 108
  3. ↑ The Pink Ballot Statute, 204D.15
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