State Constitutional Developments in 2010

None of the 116 constitutional amendments enacted in 2010 attracted as much attention as California’s 2008 same-sex marriage ban or other high-profile amendments in recent years. Nevertheless, some notable amendments were adopted. Voters approved rights amendments regarding health care, union organizing, affirmative action, guns and voting. Institutional design amendments were enacted regarding legislative redistricting, party primaries, legislative sessions and the gubernatorial recall. Policy amendments dealt with budgeting, rainy day funds, taxation, debt, education and veterans’ benefits, among other issues.

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About the Author

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 various articles on state constitutionalism.


State constitutional amendment activity was brisk in 2010, especially in comparison with recent years. Voters considered amendments regarding controversial issues such as health care, union organizing, affirmative action and abortion. Other amendments targeted the design of governing institutions on topics including redistricting, party primaries, legislative sessions and the gubernatorial recall. Policy amendments dealt with budgeting, rainy day funds, taxes, debt, education and veterans’ benefits. Meanwhile, four of the 14 states that require periodic submission of a constitutional convention referendum held referendums in 2010 and all were defeated.

Constitutional Amendment and Revision Methods

Constitutional amendments appeared on the ballot in 2010 in 37 states, which is higher than the 30 states voting on amendments in the last even-year election in 2008 and slightly higher than the 34 states voting on amendments in the last midterm election in 2006. One hundred sixty-five amendments appeared on the ballot in 2010 and 116 were approved. These numbers exceed the data for 2008, when 140 amendments were proposed and 87 were approved, and are comparable to 2006, when 166 amendments were proposed and 125 were approved.

Legislative Proposals and Constitutional Initiatives

All the amendments on the ballot in 2010 were proposed by legislatures or through the initiative process. One hundred forty-eight amendments were proposed by legislatures, and 106 were approved by voters, for a passage rate of 71.6 percent. This is comparable to the approval rate for legislature-referred amendments in other years. Seventeen amendments were proposed via the initiative process and nine were approved, for a passage rate of 52.9 percent, which is slightly higher than the typical passage rate for initiated amendments. Additionally, one amendment was enacted in Delaware, which is unique among the states in that amendments there are approved by a two-thirds vote of the legislature in successive sessions without a popular referendum.

  Download Table A:  "State Constitutional Changes by Method of Initiation: 2006–07, 2008–09 and 2010"

Alabama alone accounted for 47 proposed and 27 enacted amendments. The vast majority of these Alabama amendments were local amendments proposed by the legislature but only voted on by residents of the affected county.1 The inclusion of these local amendments in the Alabama Constitution accounts, in part, for the reason Alabama has the longest constitution in the world.

Constitutional Commissions

The Utah Constitutional Revision Commission was the only constitutional commission active in 2010. Utah’s commission is the only one in the country with an ongoing charge to propose constitutional amendments to the legislature for consideration and possible submission to voters.The commission also gives advice to legislators on amendments under consideration. The main item on the commission’s agenda in 2010 was an amendment to prohibit racial preferences in government hiring and contracting and in university admissions. The commission held several meetings featuring remarks by supporters and critics,but commission members decided to delay issuing a recommendation until the measure is formally re-introduced in the legislature.

Constitutional Conventions

2010 brought important developments regarding constitutional conventions in two U.S. territories. The U.S. Virgin Islands is one of two territories—along with Guam—that do not have a constitution. A convention was held from 2007 to 2009 to draft an inaugural U.S. Virgin Islands constitution. The 30 convention delegates completed their work in May 2009, but Gov. John DeJongh Jr. determined the proposed constitution was inconsistent with various guarantees in the U.S. Constitution and should not be submitted to the president and Congress, who are required to give their approval before it can be voted on by residents of the territory.

Although that seemed to be the end of the process, in December 2009 the U.S. District Court for the U.S. Virgin Islands ordered the governor to submit the draft constitution to the president, who then forwarded it to Congress. House and Senate committees held hearings and in June 2010, Congress approved a resolution identifying a number of problems with the proposed constitution and urging the territorial convention to reconvene and consider changes to address these concerns. Failure of the convention to reconvene—and no steps have been taken toward this end—would bring an end to the fifth effort to draft a U.S. Virgin Islands constitution.

American Samoa is one of three territories— along with Puerto Rico and the Northern Mariana Islands—that have constitutions. In June 2010, American Samoa Gov. Togiola Tulafono called a convention to consider revisions to the territory’s 1967 constitution. One hundred forty-five delegates participated in a two-week convention that concluded in July 2010 by agreeing to 34 recommended changes. These changes were submitted to voters in a single up-or-down vote. During the November 2010 election, voters rejected the package by a vote of 7,660 to 3,257.2

Four of the 14 states that require automatic submission of a convention referendum at regular intervals held referendums in 2010: Iowa, which requires a referendum every 10 years; Michigan, which requires a referendum every 16 years; and Montana and Maryland, which require a convention referendum every 20 years. All were defeated. In contrast with the 2008 election— when mandatory convention referendum campaigns in Connecticut, Hawaii and Illinois attracted significant attention and funding, especially from convention critics—the 2010 convention referendums did not generate much in the way of supporting or opposing campaigns.

Iowa’s referendum attracted the most attention, with some critics of the Iowa Supreme Court’s 2009 decision legalizing same-sex marriage viewing a convention as a vehicle for reversing the decision. The Iowa Catholic Conference endorsed the convention referendum for that reason. However, conservative critics of the state court ruling were divided on the merits of a convention, with some expressing concern about the unpredictable nature of a convention and the difficulty of confining the proceedings to selected issues. Iowa voters rejected the convention referendum by a 67 to 33 percent margin.

Michigan voters also rejected a convention referendum by a 67 to 33 percent margin. Outgoing Democratic Gov. Jennifer Granholm supported a convention out of a general desire to modernize the state constitution. However, the two main gubernatorial candidates to replace Granholm opposed a convention on the grounds that it would delay and hinder efforts to boost the state economy. Groups from across the political spectrum joined them in opposition, including the state Chamber of Commerce and AFL-CIO.

In Montana, voters rejected a convention referendum by a 58 to 42 percent margin. Adopted in 1972, the Montana Constitution is one of the most recent state constitutions, so there was little call for modernization of the document. Rather, convention supporters focused primarily on the benefits of revisiting privacy and environmental rights provisions that first appeared in the 1972 document and generated several controversial state court rulings. However, no organized campaigns came out for or against a convention, although many of the surviving delegates from the 100-member convention of 1971–72 opposed calling a convention.

In Maryland, the absence of a galvanizing issue or organized campaign suggested to many observers that the referendum would have no more success than the other three state convention referendums in 2010. The only meaningful support came from J.H. Snider, the president of a democracy-focused policy institute, who wrote newspaper editorials touting the benefits of a convention. Additionally, at a radio debate held on Oct. 21, 2010, between incumbent Democratic Gov. Martin O’Malley and Republican challenger Robert Ehrlich, both candidates responded to a reporter’s question by expressing support in some fashion for the referendum. But neither campaigned on the issue and no groups put forth concerted efforts to rally support for or against a convention. It was quite a surprise, then, when 54 percent of voters who cast votes on the referendum supported it. However, Maryland requires a convention referendum to obtain the support of a majority of voters in the entire election, and because a number of voters left the referendum question blank, the measure obtained support from only 48.5 percent of voters and was rejected. Maryland’s narrow rejection is the closest a mandatory convention referendum has come to passage since a New Hampshire referendum in 2002 attracted 49 percent of the vote. The last time a mandatory convention referendum was approved was in Rhode Island in 1984.3

Efforts to call conventions continued in several other states in 2010 but did not come close to generating convention referendums. In California, a lack of funding led the group Repair California to suspend its campaign to qualify two measures for the November 2010 ballot that would have enabled voters to call a convention via the initiative process. In Alabama, where the group Alabama Citizens for Constitutional Reform has been working for the better part of the past decade to obtain legislative support for a convention, legislators in the state house and senate introduced bills to call a convention referendum, but they were not brought to a vote in either chamber.

Constitutional Changes

Voters in 2010 considered rights-related amendments on topics including health care, union organizing, affirmative action, abortion, guns and voting. Voters also passed judgment on institutional reform amendments regarding redistricting, the frequency of legislative sessions, the gubernatorial recall and judicial selection. Policy-related amendments dealt with rainy day funds, taxation, debt, education and veterans’ benefits, among other issues.

Individual Rights

Voters in two states in 2010 approved amendments prohibiting enforcement of any law requiring individuals to purchase health insurance or otherwise participate in a health care system. Arizona was the first state to vote on such an amendment in 2008, when voters narrowly defeated an initiated amendment intended to prevent the state legislature from enacting an individual mandate of the sort included in a 2006 Massachusetts health care law. The amendments proposed in 2010, however, were intended to target a provision in the recently enacted federal Patient Protection and Affordable Care Act that requires nearly all individuals to purchase health insurance or pay a financial penalty. Voters in Colorado rejected an initiated amendment along these lines, and the Florida Supreme Court ordered a legislature-referred amendment to be removed from the ballot on the grounds that the ballot language was ambiguous and misleading. However, voters in Arizona and Oklahoma approved legislature-referred “health freedom” amendments. Because these amendments—and the similar statutes adopted in six states in 2010—conflict with the Affordable Care Act, they are not viewed as having legal effect. Their main purpose, aside from expressing popular disapproval of the federal law, is to create a conflict between state and federal law and thereby boost the prospects that federal lawsuits filed by state attorneys general challenging the constitutionality of the federal law will be deemed justiciable prior to the individual mandate actually taking effect in 2014.

  Download Table B: "Substantive Changes in State Constitutions: Proposed and Adopted: 2006–07, 2008–09 and 2010"

Four states approved amendments targeting a proposed federal Employee Free Choice Act, which would limit secret balloting in union organizing campaigns and rely more often on a “card check” procedure for determining union representation. Voters in Arizona, South Carolina, South Dakota and Utah approved legislature-referred amendments guaranteeing individuals the right to a secret ballot not only in political elections, but also in any workplace election to determine union representation. The 111th Congress did not pass the Employee Free Choice Act, so it is unclear whether these state constitutional amendments have any effect or even if they would have had any effect if the act had been enacted, given that these state amendments are seemingly pre-empted by federal labor relations statutes. Their primary purpose was to highlight an unpopular aspect of the Employee Free Choice Act as a way of preventing its passage or, failing that, to assist in legal challenges to its legitimacy.


Arizona became the fourth state to approve a constitutional amendment banning racial preferences in hiring, contracting and university admissions. In previous years, voters in California (1996), Michigan (2006) and Nebraska (2008) approved initiated amendments of this kind, and voters in Washington approved an initiated statute in 1998. Voters in Arizona were the first to approve a legislature-referred amendment seeking to limit affirmative action. Although no amendments dealing explicitly with abortion appeared on the ballot in 2010, Colorado voters defeated an initiated amendment defining a “person” as any “human being from the beginning of the biological development of that human being.” Colorado voters in 2008 defeated a similarly motivated but differently worded amendment defining personhood as beginning “from the moment of fertilization.”

The intent of these amendments—a similar amendment has qualified for the 2011 Mississippi ballot—is presumably to create a conflict between state law and the U.S. Supreme Court’s abortion jurisprudence and thereby provide a vehicle for the court to reconsider its precedents in this area.

  Download Table C: "State Constitutional Changes by Legislative and Initiative Proposal: 2010"

Three states approved amendments dealing with gun rights in some fashion. Kansas voters approved an amendment making clear that individuals’ right to bear arms is not tethered solely to “their defense and security.”

The amendment declares that: “A person has the right to keep and bear arms for the defense of self, family, home and state, for lawful hunting and recreational use, and for any other lawful purpose.” Meanwhile, Arkansas and Tennessee voters approved amendments recognizing an individual’s right to hunt and fish, while Arizona voters defeated a similar amendment.

Three states enacted amendments expanding the suffrage. A Vermont amendment permits 17-year-olds to vote in primary elections as long as they will turn 18 by the day of the general election. A Kansas amendment eliminated vague and sweeping language authorizing the legislature to disenfranchise individuals because of “mental illness.” A New Mexico amendment eliminated outdated language disfranchising “idiots” and “insane persons” and instead provided for disqualification of individuals due to “mental incapacity,” as indicated by an inability to mark a ballot or communicate a voting preference. This amendment also eliminated outdated age and residency requirements that had long been superseded by federal law.

Several other proposed or enacted rights amendments are also worthy of note. In response to the 2009 killing of four police officers by a man recently released on parole from another state, Washington voters approved an amendment permitting the denial of bail for certain offenses, “upon a showing by clear and convincing evidence of a propensity for violence that creates a substantial likelihood of danger to the community or any persons.” Nevada voters, meanwhile, rejected a legislature-referred amendment that would have relaxed several restrictions on the eminent domain process that had been established through an initiated amendment approved in 2008.

Governing Institutions

The most important institutional design amendments approved in 2010 dealt with the redistricting process. A California amendment assigns the task of drawing congressional district lines to an independent commission created by a 2008 amendment and originally entrusted with the task of drawing state legislative district lines. As a result of this 2010 amendment—and the defeat of an initiated amendment that sought to effectively repeal the 2008 amendment—the 14-member commission will be responsible for redistricting both congressional and state legislative seats.

Meanwhile, an Oklahoma amendment changes the size and composition of that state’s redistricting commission. Instead of a three-member commission comprised of the attorney general, treasurer and superintendent of public instruction, the 2010 amendment establishes a commission of seven members comprised of the lieutenant governor and two appointees each from the governor and the leaders of the house and senate. Florida voters approved two amendments that take a different approach to regulating the redistricting process. Rather than assigning the task of redistricting to an independent commission, two initiated amendments in Florida establish criteria the legislature must follow in drawing congressional and state legislative districts. Most important, districts and districting plans cannot be drawn to favor or disfavor an incumbent or political party.

California voters approved an amendment making an important change in the electoral system by instituting a top-two primary. Similar to a recently adopted system in Washington—and slightly different from the longstanding nonpartisan “Cajun” primary in Louisiana—the top-two primary requires all candidates for an office to run in a single primary. The top two candidates advance to the general election, regardless of their party affiliation.

Several states adopted amendments altering the qualifications for officeholders or the process for removing officials. A North Carolina amendment prohibits convicted felons from running for county sheriff. A Michigan amendment prevents individuals from holding state or local elected office or certain non-elected positions for 20 years after their conviction for a felony involving dishonesty, deceit, fraud or breach of the public trust. Illinois became the 19th state to permit voters to recall public officials, albeit limited to the governor and pursuant to an unusual procedure whereby a certain number of state legislators from each party must first give their approval for a recall petition. Oklahoma voters approved an amendment imposing an eight-year lifetime limit on service in the governor’s office and other statewide offices.

Several amendments dealt with the legislative branch. Most important, Oregon voters approved an amendment making Oregon the 46th state with annual legislative sessions. Louisiana voters approved an amendment moving up by several weeks the starting and ending dates of legislative sessions. Utah voters approved an amendment creating an independent legislative ethics commission. Voters in Alaska defeated an amendment that would have increased slightly the number of members in the house and senate.

Voters considered a number of amendments regarding the judiciary. Despite the strong backing of retired U.S. Supreme Court Justice Sandra O’Connor, Nevada voters rejected an amendment that would have replaced judicial elections with the Missouri Plan of judicial selection, where open seats are filled through gubernatorial appointment from a list of nominees identified by a merit commission and judges are subject to retention elections at periodic intervals. Nevada voters also rejected an amendment to create an intermediate appellate court. Oklahoma voters approved two judiciary-related amendments. One Oklahoma amendment changes the size and composition of the judicial nominating commission. Another Oklahoma amendment, which attracted significant attention and was enjoined from taking effect by a U.S. district judge ruling on Nov. 29, 2010, prohibits state judges from relying on international or Sharia law.

As has been the norm in recent years, legislatures proposed several amendments to change initiative and referendum processes. Arizona voters defeated an amendment to make it more difficult to use the initiative process by requiring initiative backers to gather signatures on petitions and submit them two months earlier than currently required. But Oklahoma voters approved an amendment that facilitates use of the initiative process by changing the method of calculating how many signatures initiative-backers must obtain in order to qualify a measure for the ballot. Voters considered assorted other amendments regarding governing institutions. Hawaii voters approved an amendment replacing the current elected state school board with a board made up of gubernatorial appointees.

Voters in Louisiana approved an amendment similar to the 27th Amendment to the U.S. Constitution, in that it prohibits pay raises for legislators and other officials from taking effect until an election has been held after the legislative vote on the pay increase. Colorado voters approved an amendment authorizing the temporary removal of the seat of government from Denver in case of a disaster emergency. Nebraska voters, meanwhile, declined to approve an amendment eliminating the state treasurer position.

Policy

The most important policy amendment in 2010 was a California amendment repealing the requirement that two-thirds of the legislature must approve the state budget. Voter approval of this initiated amendment means that only two states—Arkansas and Rhode Island—retain supermajority requirements for passing a budget. However, in the same election, California voters approved an initiated amendment extending an existing two-thirds requirement for increasing taxes by applying this rule to the imposition of new fees as well.

Voters in several states approved amendments increasing taxes or dedicating taxes or other revenues to certain purposes. An Arizona amendment in May 2010 increases the sales tax by 1 cent for a three-year period. Iowa voters approved a complicated amendment that does not increase the sales tax, but rather provides that if the legislature decides to increase the sales tax, three-eighths of the increase must be dedicated to a Natural Resources and Outdoor Recreation Trust Fund. An Oregon initiated amendment permanently dedicates 15 percent of annual lottery revenue to parks and natural resources.

On the other hand, voters approved several tax-limitation amendments. An Indiana amendment limits property taxes to a percentage of the assessed value of the property. Meanwhile, voters in Missouri and Montana, two of the 13 states that do not currently impose real estate transfer taxes, approved initiated amendments prohibiting imposition of such a tax. Colorado voters rejected an amendment that would have imposed stringent limits on local taxes, even beyond the limits contained in the Colorado Taxpayers Bill of Rights.

A number of amendments require or permit property tax exemptions for certain groups, such as veterans in Louisiana, disabled veterans in Virginia, veterans’ organizations in New Mexico, disabled prisoners of war in Missouri, and active duty military deployed overseas in Florida. Virginia voters also approved an amendment making it easier for senior citizens or disabled people to qualify for property tax exemptions. Other amendments dealt with state rainy day funds, by requiring or permitting more funds to be deposited in reserve funds. Voters in Virginia and Hawaii approved amendments allowing the legislature to increase the rainy day fund, whether by increasing the maximum size of the fund, as in Virginia, or authorizing the legislature to deposit excess revenue into the rainy day fund rather than having to refund or credit such revenue to taxpayers, as in Hawaii. Meanwhile, South Carolina and Oklahoma amendments required more funds to be deposited each year into the rainy day fund. A North Dakota amendment requires certain oil and gas revenues to be deposited into a newly created legacy fund.

A number of amendments dealt with state and local borrowing. Colorado voters rejected an amendment that attracted significant national attention. It would have prohibited all state borrowing and imposed significant restrictions on local borrowing. On the other hand, voters approved amendments facilitating the issuance of general obligation bonds for various purposes (economic development in Arkansas and Ohio and education in Oregon), authorizing additional uses of revenue bonds (in Nebraska) and enabling various entities to incur multi-year debt without a referendum (in Idaho). Voters in Washington approved an amendment making it easier for the state to qualify for the federal Build America Bonds program created in the 2009 federal stimulus package.

Several notable education amendments went down in defeat. A legislature-referred amendment in Florida would have relaxed various caps on K–12 class sizes imposed via a 2002 initiated amendment. Although this amendment received 54 percent of the vote, Florida has required, since 2006, that all constitutional changes surpass a 60 percent popular vote threshold, and so it was defeated. Oklahoma voters rejected a highly unusual initiated amendment mandating that the state’s per-pupil education spending meet or surpass the average per-pupil spending of all of the states surrounding Oklahoma. Meanwhile, voters in Idaho approved an amendment authorizing the University of Idaho to charge tuition; previously, the University of Idaho had only been allowed to charge fees.

Several states approved amendments granting benefits to veterans. In addition to various amendments exempting veterans from property taxes, a New Mexico amendment allows veterans to pay in-state university tuition and an Oregon amendment increases veterans’ eligibility for low-interest home loans.

Voters also considered assorted other policy amendments. Oklahoma voters approved an amendment requiring official state actions to be in English, unless federal law requires the use of other languages. Rhode Island voters soundly defeated an amendment that would have changed the state name from “The State of Rhode Island and Providence Plantations” to simply “Rhode Island.” Florida voters rejected an initiated amendment that would have required any changes in local land-use plans to be approved by popular referendum.

Conclusion

Several trends emerge from a review of state constitutional developments in 2010. During the past decade, state constitutional amendment processes have come to serve in various ways as vehicles for exceeding or challenging federal standards, and this continued in 2010. Earlier in the decade, two states enacted amendments—others proceeded on a statutory basis—legalizing medicinal marijuana in the face of a contrary congressional statute. Four states enacted amendments—others again proceeded on a statutory basis—establishing a higher minimum wage than is guaranteed by federal law. And nine states adopted major amendments containing tighter restrictions on the eminent domain power than the U.S. Supreme Court was willing to require in the 2005 Kelo decision. In 2010, the principal targets of state constitutional amendment activity were the recently enacted federal health care law and a proposed union organizing bill. Arizona and Oklahoma enacted amendments expressing opposition and facilitating challenges to the federal health care law, and similar amendments have been circulated in other states for placement on the 2011 and 2012 ballots. Meanwhile, Arizona, South Carolina, South Dakota and Utah approved amendments seeking to achieve similar ends regarding the proposed union organizing bill.4

Second, groups continue to turn to the constitutional initiative process to achieve goals that proved unattainable through ordinary political processes. In previous years, initiated amendments have been used to adopt legislative term limits and tax and expenditure limitations, among other institutional and policy changes. In 2010, the constitutional initiative process was the vehicle for adopting several reforms that otherwise would not have found favor with legislators. Voters approved initiated amendments imposing significant restrictions on the redistricting process, as in Florida, and assigned the task of congressional redistricting to an independent commission, as in California. Meanwhile, California voters approved an amendment eliminating the requirement that budgets be passed by a two-thirds legislative vote.

Third, constitutional amendments are frequently a product of contemporary issues and concerns. This was particularly evident in 2010 in the numerous amendments making provision for larger rainy day funds in response to the economic downturn and associated budget shortfalls.

Finally, for the past quarter century, voters have been reluctant to call constitutional conventions. This was evident in 2010 in the rejection of mandatory convention referendums in Iowa, Maryland, Michigan and Montana. However, voters came close to approving the Maryland referendum, and in fact a majority of voters who cast ballots on the convention referendum in that state supported the measure. Three more mandatory convention referendums will be held in 2012 in Alaska, New Hampshire and Ohio and will provide additional opportunities to gauge public support for calling constitutional conventions.

Notes

1In fact, one local amendment was approved in November 2010 by a majority of the voters in Blount County but was not certified as a result of an order by a Blount County circuit court that the amendment had been incorrectly placed on the ballot as a local amendment. Therefore, this amendment is not included in the number of amendments approved in Alabama in 2010.

2Associated Press, “Faleomavaega wins 12th election to Congress,” Nov. 4, 2010, http://www.kpua.net/news.php?id=21505.

3John Dinan, “The Political Dynamics of Mandatory State Constitutional Convention Referendums: Lessons from the 2000s Regarding Obstacles and Pathways to their Passage,” Montana Law Review 71 (Summer 2010): 395–432.

4In this phenomenon, see John Dinan, “State Constitutional Amendment Processes and the Safeguards of American Federalism,” Penn State Law Review (forthcoming).

 

 

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