State Constitutional Developments in 2009
Odd-numbered years typically generate relatively few state constitutional amendments, and 2009 was particularly quiet, even compared with previous odd-year elections. Voters in only five states considered 21 amendments. The most high-profile amendments were a package of California measures that were intended to address the state’s budget shortfall but were largely rejected in a May special election. Meanwhile, Ohio voters approved an amendment authorizing casino gambling and Texas voters approved an amendment restricting use of the eminent domain power. Much of the attention focused on the future—on preparing amendments for the 2010 ballot.
By John Dinan
John Dinan is associate professor of political science at Wake Forest University in North Carolina. He is the author of The American State Constitutional Tradition and The Virginia State Constitution: A Reference Guide, as well as various articles about state constitutions.
Relatively few state constitutional amendments appeared on the ballot in 2009, as is typical of odd-numbered years. Several amendments attracted a fair amount of attention, however, particularly in California, where voters in a May special election rejected all but one amendment in a package of measures intended to address the state’s budget deficit. Other notable amendments authorized casino gambling in Ohio and restricted use of eminent domain in Texas. Much of the attention focused on qualifying constitutional amendments for the 2010 ballot, which will feature measures addressing high-profile issues such as affirmative action, gun rights and targeting federal health-care and union-organizing legislation. Attention also turned to preparing for possible constitutional conventions. Convention referendums will appear on the ballot in 2010 in Iowa, Maryland, Michigan and Montana, and efforts are underway to qualify a pair of ballot measures in California that would lead to a convention in that state.
Constitutional Amendment and Revision Methods
Constitutional amendments appeared on the ballot in 2009 in only five states, which is far fewer than the 30 states that voted on amendments in 2008 and fewer even than the eight states that voted on amendments in 2007, the last odd-year election. A total of 21 amendments appeared on the ballot in 2009 and 17 were approved. Again, this represents a significant drop-off not only from 2008, when 111 amendments were submitted to voters and 67 were approved, but also from 2007, when 34 amendments were submitted to voters and 33 amendments were approved. It is notable that Texas alone accounted for more than half of the amendments considered (11 of 21) and approved (11 of 17) by voters in 2009.
Legislative Proposals and Constitutional Initiatives
All 21 amendments on the 2009 ballot were proposed by legislatures or via the initiative process. Twenty amendments were proposed by legislatures and 16—or 80 percent—of them were approved by voters. This is generally in line with recent passage rates for legislative-proposed amendments. Only one amendment was proposed via the constitutional initiative process and it was approved. In general, fewer than half of voter-initiated amendments have been approved at the polls in recent years.
Although no amendments on the 2009 ballot were proposed by constitutional commissions, the Utah Constitutional Revision Commission was active in holding hearings and considering changes to the Utah Constitution. The Utah commission is unique in that it has an ongoing charge to propose constitutional amendments; these amendments must then be approved by the legislature before they are submitted for popular ratification. The commission also plays a role in advising legislators on proposed amendments. A key issue for the commission in 2009 was a proposed amendment stipulating the legislature, rather than the courts, has the authority to establish procedures for post-conviction relief in criminal cases. Ultimately, and due in large part to the work of the commission, it was determined that this matter could best be addressed through adoption of a state supreme court rule and passage of a legislative statute, without the need for the legislature to resort to a constitutional amendment.
No conventions were operating in the 50 states in 2009; however, a convention that had been meeting in the U.S. Virgin Islands since October 2007 concluded its work in May 2009. Three U.S. territories have constitutions: Puerto Rico, American Samoa, and the Northern Mariana Islands (where voters in 2009 approved all three amendments submitted by the legislature). However, Guam and the Virgin Islands do not have territorial constitutions, and the purpose of the Virgin Islands convention (the fifth held in that territory) was to draft an inaugural constitution. On May 26, 2009, twenty of the 30 delegates to the convention approved a draft constitution. It was submitted to Gov. John DeJongh Jr., who is required to approve it before it is submitted to the U.S. President and Congress and then the voters of the territory. After receiving a legal opinion from the Virgin Islands attorney general stating the draft constitution failed to recognize the supremacy or protect certain rights secured by the U.S. Constitution, the governor on June 11, 2009, decided not to forward the draft constitution to the President and Congress, thereby bringing an end to the latest effort to draft a Virgin Islands Constitution.1
Although no state constitutional conventions have been held since 1992, when the Louisiana legislature called a convention comprised of legislators themselves, efforts were underway in several states in 2009 to build support for conventions. In Alabama, the group Alabama Citizens for Constitutional Reform continued to try to persuade the legislature to permit the people to vote on calling a convention to revise a constitution that is by far the longest of any state. In the 2009 legislative session, the state’s House Rules Committee eventually permitted debate on a convention referendum bill. However, convention supporters lost a key procedural vote by a 43-36 margin and decided not to press for a full vote once it appeared that the bill did not have the backing of a majority of members.2
In California, supporters of a constitutional convention began gathering signatures for two initiative measures to be placed on the 2010 ballot that if approved, would lead to a convention. The first measure would amend the constitution to permit conventions to be called not only through legislative-referred measures (as is currently allowed) but also via the initiative process. The second measure would take advantage of this new opportunity to call a convention through the initiative process, by calling for a convention and specifying the means of selecting delegates (random selection) and the topics they would be permitted to address. In brief, the convention would be permitted to consider changes to the initiative and referendum process, term limits rules and the two-thirds requirement for the legislature to pass a budget or raise taxes, among other specified issues. If these two measures qualify for the 2010 ballot and are approved by voters, then a convention limited to the consideration of these issues would be called no later than June 2011.
Looking ahead to 2010, Iowa, Michigan, Maryland and Montana will hold referendums on whether to call conventions due to constitutional requirements that a convention question be submitted at periodic intervals in each of these states. Iowa requires that a referendum be held every 10 years. In Michigan, a referendum must be submitted every 16 years. Maryland and Montana require that referendums be held every 20 years. In 2012, another three states are scheduled to hold mandatory convention referendums—Alaska (every 10 years), New Hampshire (every 10 years), and Ohio (every 20 years)—meaning that seven of the 14 states with mandatory convention referendum requirements will hold referendums from 2010-2012.
Still another mandatory convention referendum state, Oklahoma, is required to hold a vote every 20 years but has not done so since 1970. The Oklahoma legislature has in recent years considered complying with this constitutional requirement, most recently in 2009 when the Senate approved a convention referendum by a 38-8 vote. However, the house failed to act, marking another year without a convention question being placed before Oklahoma voters.3
In general, voters have rejected these mandatory convention referendums; however, in the last four decades, this is the vehicle by which conventions have been called in New Hampshire (1974 and 1984), Hawaii (1978), and Rhode Island (1986). Moreover, in the last decade mandatory convention referendums have come close to passing on two other occasions: New Hampshire (2002) and Rhode Island (2004).4
Although most amendments approved in 2009 involved minor changes and did not generate much attention, a few were the subject of high-profile campaigns. This was particularly the case with a package of amendments in California designed to remedy the state’s budget imbalance and an Ohio amendment authorizing casino gambling. Attention also focused on efforts to qualify amendments for the 2010 ballot regarding rights issues such as affirmative action, abortion and guns; institutional issues such as judicial selection, redistricting and direct democracy; and policy questions concerning federal health care and union organizing legislation.
The only individual rights amendment on the 2009 ballot was a Texas measure prohibiting use of eminent domain for economic development purposes or increasing tax revenue. By approving this amendment, Texas became the ninth state to tighten its constitutional eminent domain provisions in this fashion in the aftermath of Kelo v. City of New London (2005). In that ruling, the U.S. Supreme Court held that the federal constitution does not bar use of eminent domain for economic development purposes; but it made clear that states were free to enact heightened restrictions. Additional eminent domain amendments could appear on other state ballots in coming years, including in Missouri, where efforts are under way to qualify a measure for the 2010 ballot via the initiative process.
Constitutional amendments limiting affirmative action have in recent years qualified for the ballot via the initiative process and were approved in California (1996), Michigan (2006) and Nebraska (2008), but rejected at the polls in Colorado (2008). Washington voters also approved an initiated measure in 1998; but it was in the form of a statutory change. No amendments of this sort appeared on the 2009 ballot. However, the Arizona legislature in 2009 approved an anti-affirmative action amendment for placement on the 2010 ballot, marking the first time that such an amendment has qualified via legislative referral rather than the initiative process.
Amendments prohibiting same-sex marriage and in some cases civil unions have appeared on state ballots with some frequency during the past decade. Hawaii and Alaska were the first states to adopt same-sex marriage amendments in 1998 in response to litigation that raised the possibility that state courts would require legalization of same-sex marriage. The Hawaii amendment is distinctive in that it does not prohibit same-sex marriage, but rather authorizes the legislature to reserve marriage to opposite-sex couples. The Alaska amendment, like all of the others that followed, prohibits legalization of same-sex marriage. Nebraska (2000) and Nevada (2002) then approved amendments banning same-sex marriage, bringing to four the number of states with same-sex marriage amendments prior to issuance of a 2003 Massachusetts Supreme Judicial Court decision in Goodridge v. Dept. of Public Health, which overturned the state’s restriction of marriage to opposite-sex couples.
In the years following this ruling, another 26 states adopted same-sex marriage amendments, including California, which in November 2008 became the first state to adopt an amendment overturning a state supreme court ruling legalizing same-sex marriage. The most important development in 2009 was a May decision of the California Supreme Court in Strauss v. Horton upholding this California amendment against various challenges, including a contention that it constituted a revision rather than an amendment of the state constitution. Same-sex marriage supporters then filed a federal constitutional challenge in the U.S. District Court for the Northern District of California and the case was heard beginning in January 2010.
No additional same-sex marriage amendments appeared on the 2009 ballot. An April 2009 Iowa Supreme Court decision in Varnum v. Brien legalizing same-sex marriage (the fourth such ruling, following decisions of the Massachusetts, California and Connecticut supreme courts) prompted same-sex marriage opponents to lobby the Iowa legislature to approve an amendment overturning that decision, but so far without success.5 At year’s end, the number of states with same-sex marriage amendments remained at 30, with the Hawaii Constitution authorizing the legislature to restrict marriage to opposite-sex couples and 29 other state constitutions banning same-sex marriage.
Abortion is another issue that has been the subject of state constitutional amendment proposals in recent years but not in 2009. In the past few years, abortion opponents have pressed for votes on “personhood” amendments stipulating that fetuses are persons and entitled to all of the rights of persons from the moment of conception. To date, however, the only personhood amendment to qualify for a state ballot was in Colorado in 2008 and it was defeated by a wide margin. Efforts to qualify such amendments have continued in other states but without success, as in Nevada, where a state judge ruled in January 2010 that the language of a proposed personhood amendment was so vague that supporters could not begin circulating petitions with an eye toward qualifying it for the ballot.6
Amendments securing the right to bear arms and recognizing a right to hunt and fish have appeared on state ballots with some frequency in recent years. Although none appeared on the 2009 ballot, several have qualified for the 2010 ballot. In Kansas, the U.S. Supreme Court’s interpretation of the federal right to bear arms clause in 2008 in District of Columbia v. Heller prompted the legislature to place on the ballot an amendment stipulating that the state constitutional right to bear arms is an individual rather than a collective right, just as the U.S. Supreme Court held in Heller. Meanwhile, legislatures in Arkansas and South Carolina agreed to place on the 2010 ballot amendments protecting the right to hunt, fish and harvest wildlife. Similar amendments have been approved in a number of other states in recent decades.
The only one of four amendments (and six ballot measures overall) on the May 2009 California ballot to be approved by voters dealt with salary increases for members of the legislature and certain other state officials. The California legislature’s purpose in submitting this package of ballot measures was to close a budget deficit estimated at $42 billion. However, in order to secure the requisite number of votes in the legislature for submission of these fiscal measures (to be discussed below), the legislature had to acquiesce in the request of state Sen. Abel Maldonado to place on the ballot several other measures, including an amendment prohibiting pay raises for legislators or certain other state officials in a year when the state ran a deficit. Although all of the other California measures went down to defeat, voters supported this amendment by a wide margin.
No amendments in 2009 dealt with the judiciary. However, one amendment that qualified for the 2010 ballot would change the judicial selection system in Nevada. It would replace the current system of competitive judicial elections with a system where judges are appointed by a merit selection committee and subjected to periodic retention elections in order to retain their positions.
Direct democracy has been the subject of significant amendment activity in recent years, with some amendments seeking to add new direct democratic institutions or make them more accessible, other amendments seeking to reduce reliance on these institutions, and still other amendments making technical changes to existing procedures. The only amendment on the Maine ballot in 2009 (and one of only four amendments defeated across the country that year) was of the final sort. It would have altered the current time requirements for initiative and referendum petitions by giving town clerks several extra days to certify signatures submitted as part of the ballot qualification process. Meanwhile, several amendments that will appear on the 2010 ballot would add new direct democratic devices or make existing devices easier to use. The Illinois legislature placed on the ballot a gubernatorial recall amendment that has long been championed by Gov. Pat Quinn, who assumed the office after the much-publicized impeachment and conviction of former Gov. Rod Blagojevich. Oklahoma voters will have the opportunity to approve an amendment changing the petition signature requirements making it somewhat easier to qualify initiatives and referendums for the ballot.
No amendments dealing with elections appeared on the 2009 ballot; however, several have qualified for 2010. In anticipation of the post-2010 round of redistricting, many states have considered adopting redistricting commissions of the sort that are already in use in some states. In Oklahoma, the legislature placed on the 2010 ballot an amendment to alter the composition of the existing apportionment commission responsible for drawing legislative districts in the event the legislature fails to act. The Oklahoma legislature also placed on the 2010 ballot an amendment to require voters to present a photo ID. Interestingly, in a development replicated in several states on this and other issues, this Oklahoma photo-ID requirement originally was considered and approved in the Republican-controlled legislature as a statutory change. When Democratic Gov. Brad Henry vetoed the bill, it was reintroduced and approved as a constitutional amendment, which requires the same simple legislative majority as a statute but does not require the governor’s signature. Finally, as part of the deal brokered in the California legislature to place a series of fiscal measures on the May 2009 ballot, the legislature agreed to place on the June 2010 ballot an amendment instituting a “top-two primary” for state and congressional elections; all candidates, regardless of party, would be placed on a single primary ballot, and the top two advance to the November election, even if they are members of the same party.
In a year where a severe economic downturn left most states facing significant budget shortfalls, it is no surprise that legislators and citizens proposed a number of amendments dealing with budgeting. As one way of addressing a budget shortfall, the California legislature placed on the May 2009 special-election ballot a complex package of six measures, including four amendments. The most significant amendment would have increased taxes, established a spending cap and strengthened the state rainy-day fund. A second amendment, which would only have taken effect upon the approval of the first amendment, would have required some of the added revenue from passage of the first measure to be spent on K-12 schools and community colleges. A third measure, which was in part a constitutional amendment, would have permitted the state to borrow against future lottery revenues. All of these measures were defeated.
Several of the 11 amendments approved by Texas voters in 2009 dealt with taxation, as will a number of amendments that have qualified for the 2010 ballot in other states. One Texas amendment permits residence homesteads to be taxed at their value as a residence rather than according to their potential commercial value. Another Texas amendment seeks to achieve more consistency in the way localities appraise property. Still another Texas amendment makes a technical change in the way property appraisals are conducted in localities that opt to consolidate their appraisals. Looking ahead, Colorado voters in 2010 will consider a series of amendments that would restrict property taxes, motor vehicle and telecommunications fees, and state and local government debt.
One of the approved Texas amendments boosted support for higher education. It creates a $500 million National Research University Fund, whose proceeds will be used to try to boost the research profile of seven state universities and elevate them to tier-one status: UT-Dallas, UT-Arlington, UT-El Paso, UT-San Antonio, Texas Tech University, University of Houston and University of North Texas.
Voters in 2009 approved several amendments regarding land use. In New York, the constitution’s “forever wild” provision prevents the state from transferring any Forest Preserve land, and so it is necessary to amend the constitution to make any such transfers. In an uncontroversial move, New York voters approved the transfer of a parcel of this land for the purpose of building a power line. Texas voters meanwhile approved an amendment authorizing the legislature to permit localities to issue bonds for the purpose of creating buffer spaces to limit development around military bases. Another Texas amendment guarantees public access to public beaches on the Gulf of Mexico.
Amendments regarding gambling have appeared regularly on state ballots in recent years, including in Ohio, where a number of amendments authorizing casino gambling have been defeated in the past several decades. In 2009, however, Ohio voters approved an initiated amendment (the only initiated amendment on the ballot this year) authorizing casinos in four cities: Cincinnati, Columbus, Cleveland and Toledo.
Ohio voters also approved an amendment establishing a Livestock Care Standards Board to regulate the treatment of farm animals. The measure was strongly supported by the agriculture industry and seen as a way of enacting modest regulations and heading off more stringent measures favored by animal rights groups.7
State constitutional amendments occasionally have been proposed in recent years in response to congressional action or inaction, most notably in regard to illegal immigration. Although no such measures were placed on the 2009 ballot, several have qualified for the 2010 ballot, including an Arizona amendment seeking to limit the effect of pending federal health care legislation. A similar measure appeared on the Arizona ballot in 2008 and was narrowly defeated. The 2010 amendment would prevent individuals, employers or health-care providers from being compelled to participate in any health care system and also would prohibit any limit or fine on individuals making direct payments for lawful health care services. The actual effect of such an amendment and the degree to which it would be pre-empted by the proposed federal law, America’s Affordable Health Choices Act, is disputed. Nevertheless, efforts are underway by opponents of federal health care legislation to qualify similar amendments for other state ballots in 2010.8
Opponents of federal union-organizing legislation also have turned to state constitutional amendment processes to blunt its effect. The particular target is the card-check provision of the proposed Employee Free Choice Act, which would amend the National Labor Relations Act to limit use of the secret ballot in union-organizing campaigns. The Arizona and Utah legislatures approved amendments for the 2010 ballot guaranteeing an individual right to vote by secret ballot on questions concerning employee representation. Sponsors have sought to insulate these measures against federal challenge by drafting them in such a way as to provide a greater degree of protection for individual rights than is permitted at the federal level, as has been permitted by the U.S. Supreme Court in other areas.
Voters also considered various other policy-related amendments in 2009, including a successful New York amendment permitting inmates to work for nonprofit institutions. Prior to passage of this amendment, the state constitution provided one exception to its ban on convict labor: work for public institutions. The 2009 amendment adds a second exception: work for nonprofit institutions.
Several trends emerge from a review of state constitutional developments in 2009 and a preview of 2010. Regarding the pace of constitutional change, the 2009 ballot featured relatively few constitutional amendments, even in comparison with previous odd-year elections. However, there are no indications that this reflects a general decline in state constitutional amendment activity, especially judging from the significant number of amendments that have already qualified for the 2010 ballot. In Alabama alone, voters will consider 24 constitutional amendments.
State constitutions are likely to attract public attention in 2010 not only on account of the significant number of amendments usually on the ballot in even-numbered years, but also as a result of convention referendums. Convention referendums will appear on the ballot in four states—Iowa, Maryland, Michigan and Montana—due to constitutional provisions requiring periodic submission of these questions. Meanwhile, California voters may be asked to consider a pair of initiatives that would result in a limited convention being called.
Several conclusions also can be advanced about the state constitutional changes considered in 2009 and anticipated in 2010. First, some amendment and convention activity has been driven by the recent economic downturn and resulting state budget shortfalls. This is most evident in the package of amendments proposed and largely rejected in California in 2009. This is also one of the concerns motivating supporters of a convention referendum in California in 2010.
Second, in some cases the constitutional amendment process continues to serve as a vehicle for enacting reforms that were initially introduced as statutory changes but were blocked in the political process. As one would expect, in most states it is more difficult for legislatures to approve constitutional changes than statutes, in that the former require approval by legislative supermajorities or in successive sessions. However, in a small group of states, both statutes and constitutional amendments require approval by simple legislative majorities in a single session, with the main difference being that statutes are subject to a gubernatorial veto whereas the governor has no role in the amendment process. In these latter states, legislators who have seen their statutory changes blocked by a gubernatorial veto have occasionally reintroduced their proposals as constitutional amendments. This is the origin of several amendments on the 2010 ballot in Oklahoma, where the Republican-controlled legislature saw some statutory initiatives blocked by a Democratic governor and reacted by advancing these measures as constitutional amendments.9
Third, state constitutional amendments continue to be proposed in response to court decisions. At times, U.S. Supreme Court interpretations of the federal Bill of Rights have placed issues on the political agenda and led to the introduction of state constitutional amendments intended to provide greater protection of rights than afforded at the federal level. Eminent domain amendments, the most recent of which was approved in Texas in 2009, are a leading example. At other times, as with same-sex marriage, state court interpretations of state bills of rights have generated state constitutional amendments intended to overturn them or pre-empt future rulings of this sort.
Finally, amendments continue to be proposed in response to federal legislation, as is most evident in measures on the 2010 ballot that would prevent individuals from being compelled to purchase health insurance and guarantee the right to a secret ballot in union organizing. The actual effect of these amendments on the enforcement of the proposed federal health care and union organizing statutes is uncertain. However, this has not dissuaded legislators and citizens from placing these types of amendments on state ballots.
1 Megan Poinski, “Governor rejects constitution draft,” Virgin Islands Daily News, June 12, 2009.