How Do States Amend Their Constitutions?
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As Americans go to the polls this coming Tuesday to cast their votes for various federal and state-level races, many states have state constitutional amendments on their ballot to vote on as well. The U.S. Constitution is the dominant law of the land, but each state has its own constitution as well that governs many of their aspects. The U.S. Constitution was purposely vague to some extent so that it could conform to future times as new issues cropped up. It also left certain powers up to states to deal with.
Article V of the U.S. Constitution sets the rules for amendments to it: 2/3 of both the House and Senate or 2/3 of the state legislatures must agree to a convention for proposing amendments, and they must be ratified by either 3/4 of the state legislatures or 3/4 of conventions called by the state legislatures to become part of the Constitution.¹ While it was intended by many of the Framers of the Constitution to make amendments difficult, the high threshold has sparked some debate about whether it is too difficult.
State constitutions, on the other hand, tend to be much longer and clearer in their meaning. They are also often a lot easier to amend than the U.S. Constitution. Of course, states have much different processes for amending than their national counterpart. How these amendments are proposed and ratified can vary widely from state-to-state. Some processes are available in some states but not in others.
Methods of Proposing State Constitutional Amendments
There are four major methods for amending state constitutions. Judicial rulings can also make changes.
Legislatively-referred amendments
Every state allows for their legislatures to refer an amendment to the ballot directly, and 49 of them allow for citizens to vote on them. The only exception is Delaware, as its state legislature can amend its constitution through direct action. States have a wide variety of differences in how their processes work, including how many times a state’s legislature has to vote on it before going to the voters, how many amendments can be proposed in a state legislative session, and whether amendments have to deal with only one subject or issue.²
Citizen initiatives
The electorate in 18 states can initiate amendments to be placed on a ballot by receiving signatures of a certain proportion of either that state’s voting population or of how many people cast votes for governor in the previous gubernatorial election. How much this proportion is depends on the state. For example, Arizona requires petitions to be signed by voters equal to 15% of the amount of votes for the previous governor’s race, while Nebraska requires the amount of signatures to be equal to 10% of the state’s registered voters.
This process for some states is much harder than in others, such as Illinois, Mississippi, and Massachusetts. States that have historically been more manageable include Arizona, California, Colorado, Ohio, and South Dakota.³
Commission-referred amendments
These amendments are ordered by a state commission to appear on an election ballot. The only state that has this process is Florida (Arizona has a Commission on Salaries for Elective State Officers, but this only refers statutory measures instead of amendments).⁴
The 1968 Florida Constitution established a provision for a Constitutional Revision Commission (CRC), which is to convene every 20 years to draft amendments that are placed directly on Florida’s ballot. There have been three instances of the CRC: 1977–1978, 1997–1998, and just recently in 2017–2018. Multiple amendments on the Florida ballot this year were created by the CRC.
In addition to the CRC, Florida also has a Taxation and Budget Reform Commission (TBRC) that can also directly refer its proposed amendments to the election ballot. While the TBRC occurs every 20 years as well, it does not meet the same years that the CRC does.⁵
Constitutional conventions
State constitutional conventions gather a group of elected delegates who propose revisions and amendments to their respective state constitutions. (This is similar to the CRC, except that the CRC members are hand-picked by the governor, state house speaker, state senate president, and chief justice of the state supreme court, and also includes the state attorney general. Thus, they are not elected.) Forty-four states have provisions for how their conventions are called. The major differences include whether states have a ballot measure that allows voters to approve or disapprove of having a convention, whether the state legislature can place a question on the ballot about whether they wish to call a convention, and whether the legislature can call for a convention without going through the voters.⁶
Judicial action
State courts can also step in and either remove amendments or prevent them from reaching the ballot. If a state court deems an amendment to that state’s constitution to conflict with either the U.S. Constitution or the rest of that state constitution, they have the power to toss it out. Reasons for preventing an amendment from even being voted on include too vague of wording or that it does not pertain to only one issue or subject.
Ratifying State Constitutional Amendments
Within and across methods, there are a wide variety of differences as to how these eventual amendments become laws. Florida, for example, requires a supermajority of 60% of the vote for an amendment to pass instead of a simple majority. Nevada requires amendments to be approved in two consecutive general elections to become law (Nevada Question 3, concerning changes to that state’s energy market, was approved in 2016 and must be approved again in 2018 to truly pass). Many other states, however, require a simple majority in just one election.
Florida also has the most ways to amend its constitution than any other state with five. Florida has (1) the CRC, (2) the TBRC, (3) citizen initiative process, (4) legislative referral process, and (5) ability of voters to call for a separate constitutional convention.⁷
Other Resources Regarding State Constitutional Amendments
Ballotpedia, of course, is a fantastic resource to use. In addition to research on the specific processes, Ballotpedia has an overarching page about amending state constitutions. The National Conference of State Legislatures (NCSL) also provides useful information.
Ballotpedia: Amending State Constitutions
NCSL: Your State’s Constitution
NCSL: Constitutions: Amend With Care
- Constitution Center. “Article V — The United States Constitution.” https://constitutioncenter.org/interactive-constitution/articles/article-v
- Ballotpedia. “Legislatively referred constitutional amendment.” https://ballotpedia.org/Legislatively_referred_constitutional_amendment(accessed October 31, 2018).
- Ballotpedia. “Initiated constitutional amendment.” https://ballotpedia.org/Initiated_constitutional_amendment (accessed October 31, 2018).
- Ballotpedia. “Commission-referred ballot measure.” https://ballotpedia.org/Initiated_constitutional_amendment (accessed October 31, 2018).
- Ballotpedia. “Florida Taxation and Budget Commission.” https://ballotpedia.org/Florida_Taxation_and_Budget_Reform_Commission (accessed October 31, 2018).
- Ballotpedia. “State constitutional conventions.” https://ballotpedia.org/State_constitutional_conventions (accessed October 31, 2018).
- Ballotpedia. “Amending state constitutions.” https://ballotpedia.org/Amending_state_constitutions (accessed October 31, 2018).
