State Constitutional Developments in 2011

Several of the 26 amendments on the 2011 ballot attracted significant attention, including an unsuccessful Mississippi personhood amendment and a successful Ohio amendment exempting residents from health insurance mandates. Voters also considered high-profile amendments regarding voter identification, eminent domain and sports betting. Additionally, the Alabama and Ohio legislatures established constitutional revision commissions charged with reviewing and recommending changes to these state constitutions.

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About the Author

John Dinan is professor of political science at Wake Forest University in North Carolina. He is the author of The American State Constitutional Tradition and numerous articles on state constitutionalism.


Relatively few state constitutional amendments appeared on the ballot in 2011, as is typical of odd-year elections. The two highest profile amendments were initiated measures—an unsuccessful Mississippi amendment stipulating that personhood begins at the moment of fertilization and a successful Ohio amendment exempting residents from health insurance mandates. A good deal of attention focused on qualifying amendments for the 2012 ballot on topics including abortion, health insurance, same-sex marriage and religious liberty. Meanwhile, the Alabama and Ohio legislatures established constitutional revision commissions, at the same time the Utah legislature reduced the power of its long-standing revision commission.

Constitutional Amendment and Revision Methods
Constitutional amendments were formally proposed in 2011 in nine states. This is well below the 37 states that considered amendments in 2010, but slightly above the comparable rates for recent odd-year elections; five states considered amendments in 2009 and eight states  considered amendments in 2007. 

Twenty-six amendments were proposed and 20 were enacted in 2011. Again, this is far below the level of amendment activity in 2010, when 165 amendments were proposed and 116 enacted. It is, however, comparable to recent odd-year elections, when 21 amendments were proposed and 17 enacted in 2009 and 34 amendments were proposed and 33 enacted in 2007. As is typical of odd-year elections, Texas accounted for a good portion of the 2011 amendment activity, contributing 10 of the 26 proposed amendments and seven of the 20 enacted amendments. Alabama also has, in recent years, accounted for a significant amount of constitutional amendment activity. In 2011, Alabama approved just one amendment, a local amendment that applies to Hale County and was voted on only by residents of that county.

Legislative Proposals and Constitutional Initiatives
All the amendments on the ballot in 2011 were proposed by legislatures or through the initiative process. Voters approved 16 of the 22 amendments proposed by legislatures, for a passage rate  of 73 percent. This is comparable to the passage rate for legislature-referred amendments in prior years.  Three of the four amendments proposed via the constitutional initiative process were approved, for a passage rate of 75 percent, which is much higher than the usual passage rate for citizen-initiated amendments. Mississippi accounted for two of the three successful initiated amendments, marking the first time the constitutional initiative process was used successfully in the state since the process was reintroduced there in 1992.1

One amendment was adopted in Delaware, which is unique among the 50 states in that constitutional amendments there are not submitted for popular ratification. Rather, the legislature enacts amendments by approving them by a two-thirds vote in consecutive sessions.

  Download Table A: "State Constitution Changes by Method of Initiation: 2006-07, 2008-09 and 2010-11"

Constitutional Commissions and Conventions 
Three constitutional commissions were operating or set to begin operating in 2011—a long-standing Utah commission and new commissions in Alabama and Ohio. The Utah Constitutional Revision Commission, created by legislative statute in 1977, has long been the only commission in the country with an ongoing charge to review the state constitution and recommend constitutional changes for consideration by the legislature and possible submission to voters. Utah commissioners also have long had the power to give advice on pro-posed amendments upon the request of the governor, the chief officer or minority leader of the house or senate, or the legislative sponsor of the amendment. In 2011, however, the Utah legislature enacted a statute reducing the commission’s power in each of these respects. The commission will no longer have the power to recommend constitutional changes to the legislature. In addition, the commission will only be able to offer advice on proposed amendments when requested to do so by the governor, the legislature as a whole acting through a joint resolution or the legislative management committee.
 
The Alabama legislature in its 2011 session created a Constitutional Revision Commission charged with recommending changes to selected constitutional articles and removing unconstitutional language throughout the document. The group Alabama Citizens for Constitutional Reform has for the past decade urged the legislature to call a constitutional convention to reduce the length of the state’s 376,000-word constitution and eliminate outdated or inoperative provisions.
 
The 2011 Alabama legislature, controlled by Republicans for the first time since Reconstruction,  was no more prepared than its recent predecessors to call a convention. At the urging of Senate President Pro Tem Del Marsh, however, the legislature approved and Gov. Robert Bentley signed a law creating a 16-member commission made up of the governor, senate president pro tem, house speaker and three people appointed by each of these officials, as well as the chairs of the judiciary committees and the constitution and elections committees in the house and senate. These commission members chose former Gov. Albert Brewer to chair the body.
 
The enabling statute sets out a specific schedule for the Alabama Constitutional Revision Commission to follow in recommending changes to 11 of the state constitution’s 18 articles between 2011 and 2014. The statute directs the commission to recommend changes to the banking and corporations articles and identify unconstitutional language throughout the document in 2011, and then to recommend changes to nine other constitutional articles in piecemeal fashion in the following three years. Certain articles are explicitly excluded from the commission’s consideration, including, most importantly, the taxation article.
 
The Ohio legislature in its 2011 session also established a constitutional revision commission,  partly in anticipation of a popular referendum to take place in 2012 on calling a constitutional convention. Ohio is one of 14 states whose constitution requires that a convention referendum be placed before voters at periodic intervals, and it is one of three states—along with Alaska and New Hampshire—with a convention referendum scheduled for 2012. Partly out of a desire to prepare for this referendum but also with an eye toward conducting an extensive assessment of the suitability of the current state constitution, the Ohio legislature approved a bill spearheaded by House Speaker William Batchelder establishing the Ohio Constitutional Modernization Commission.
 
The 32-member Ohio commission includes 12 members appointed by the Democratic and Republican leaders of the House and Senate—three appointees for each legislative leader—and 20 public members to be selected by a majority of the legislative appointees. In the event that a convention is called, the commission is directed by the enabling statute to make  recommendations to the legislature regarding how it should be organized. The commission also is charged by the statute with reviewing the state constitution and making recommendations, by a two-thirds vote of commissioners, to the legislature, which may then by a three-fifths vote,  propose amendments to the electorate. The commission is required to make its first report to the legislature by January 2013 and is expected to make biennial reports until its charge expires in 2021.
 
The creation of the Alabama and Ohio constitutional commissions, in part out of a desire to blunt calls for constitutional conventions, is illustrative of legislators’ determined opposition to conventions and their reliance on commissions as an alternative mechanism for achieving constitutional reform. This is a longstanding feature of state constitutional politics that has intensified since the 1970s. In fact, outside of an unusual situation in 1992 when legislators in Louisiana temporarily convened as a convention, no state constitutional conventions have been held in the quarter century since Rhode Island’s 1986 convention was called through a mandatory convention referendum. The 2012 election will provide another test of popular  support for constitutional conventions. Voters will face mandatory convention referendums in Ohio, where such votes are held every 20 years, and in Iowa and New Hampshire, where such referendums are held every 10 years.
 
Constitutional Changes
Voters in 2011 considered rights-related amendments on topics such as abortion, health insurance and the eminent domain power. Amendments also were proposed regarding electoral and governing institutions on topics including redistricting, voter identification and the judicial retirement age.  Policy amendments dealt with taxation, rainy day funds and gambling, among other topics. At the same time voters were considering these amendments on the 2011 ballot, attention also focused on qualifying amendments for the 2012 ballot.
 
 
Individual Rights
None of the amendments on the 2011 ballot attracted more attention than an unsuccessful initiated amendment in Mississippi defining personhood as beginning at the moment of   fertilization, cloning or the functional equivalent. Personhood amendments have been proposed in several states in recent years, with supporters viewing them as a means of creating a conflict between state and federal law and thereby helping to generate a legal challenge to the U.S. Supreme Court’s abortion jurisprudence, in the hopes that a majority of justices might be open  to modifying prior precedents.2 Two prior personhood amendments that qualified for a state ballot, in Colorado in 2008 and 2010, were soundly defeated.
 
Polling conducted several weeks before Mississippi’s November 2011 vote, as well as support from both the Republican and Democratic gubernatorial candidates, indicated that the Mississippi measure stood a good chance of passing. As a result, in the campaign’s final weeks, the measure attracted significant national attention and a good deal of criticism, not only from abortion rights supporters who decried its sweeping nature, but also from some pro-life groups who viewed it as unlikely to bring about a modification of the Supreme Court’s previous rulings on abortion. In the end, Mississippi voters rejected the amendment by a 58-42 percent margin.
 
Other abortion-related amendments could appear on the 2012 ballot. Supporters of  personhood amendments are seeking to qualify them via the initiative process in Colorado, for a third time, and Nevada, although they have encountered difficulties in crafting ballot language capable of satisfying a Nevada district judge. Meanwhile, the Florida legislature approved an amendment for placement on the 2012 ballot that would prohibit public funds from being spent on abortions or for health insurance coverage that provides for abortions. Additionally, employing wording included in several prior Florida amendments designed to prevent state courts from interpreting state criminal procedure guarantees more broadly than corresponding federal bill of rights clauses, the proposed amendment stipulates that the Florida Constitution “may not be interpreted to create broader rights to an abortion than those contained in the United States Constitution.”
 
Next to Mississippi’s failed personhood amendment, a successful Ohio amendment exempting residents from health insurance mandates attracted the most attention in 2011. Arizona and Oklahoma approved constitutional amendments along these lines in 2010, at the same time that six state legislatures were passing such measures on a statutory basis. With voters’ approval of a citizen- initiated amendment in 2011, Ohio became the third state to enact such a measure as a constitutional amendment, and votes on similar amendments are scheduled to take place in 2012 in Alabama, Florida and Wyoming.
 
Supporters are presumably seeking to create a conflict between these state measures and the individual mandate provision of the federal Patient Protection and Affordable Care Act of 2010, in hopes of generating a justiciable lawsuit presenting the U.S. Supreme Court with an  opportunity to strike down the individual mandate. Framing these measures as constitutional amendments rather than statutes, however, does not have any advantages in this regard. In any event, the Supreme Court agreed to hear a challenge in March 2012 to the legitimacy of the federal individual mandate and is expected to resolve the question of whether Congress has the power to enact such a provision. 
 
If personhood and health insurance amendments are directed to the judiciary in the sense of presenting the U.S. Supreme Court with an opportunity to reconsider its prior decisions or invalidate federal statutes, a successful Mississippi eminent domain amendment is directed to the judiciary in the sense of securing greater protection for rights than the U.S. Supreme Court has guaranteed. In its 2005 ruling in Kelo v. City of New London, the Supreme Court declined to interpret the takings clause of the federal Bill of Rights to prohibit the use of eminent domain to condemn land for economic development purposes. But in the ruling’s aftermath, a number of states took the opportunity to provide greater restrictions on the eminent domain power than the Supreme Court was willing to require. Some states enacted increased protection for property rights by passing statutes to this effect, while other states enacted constitutional amendments along these lines. By approving a citizen-initiated amendment prohibiting use of eminent domain to transfer property to other persons or businesses Mississippi became the 10th state to adopt a major eminent domain amendment in response to the Kelo decision. Similar amendments are scheduled to appear on the ballot in future years in other states, including  Virginia, where the legislature gave the required second approval for an eminent domain amendment to be voted on in the November 2012 election.
 
Although no same-sex marriage ban amendments appeared on the 2011 ballot, the North Carolina and Minnesota legislatures approved amendments for placement on the 2012 ballot and the Indiana legislature gave the first of two required approvals for placing an amendment on a future ballot. The North Carolina amendment will appear on the May 2012 primary ballot. The Minnesota amendment will be voted on at the 2012 general election.
 
To date, 30 states have adopted constitutional amendments regarding same-sex marriage, largely out of a desire to prevent state courts from legalizing same-sex marriage, or, in the case of California’s Proposition 8, to overturn a state court decision legalizing same-sex marriage. Hawaii’s amendment, one of the first enacted in 1998, is unique in that it reserves to the legislature the power to legalize same-sex marriage and thereby prohibits state courts from assuming this power. The other 29 amendments enacted from 1998 through 2008 go further in prohibiting state courts, as well as state legislatures, from legalizing same-sex marriage and, in many cases, civil unions.
 
Two religious liberty amendments scheduled to appear on the 2012 ballot in North Dakota and Florida respond to judicial decisions in quite different ways. A citizen-initiated amendment on the June 2012 North Dakota primary election ballot would prohibit government from burdening the free exercise of religion absent a compelling government interest. The U.S. Supreme Court in Oregon v. Smith in 1990 held that the free exercise clause of the federal Bill of Rights does not require state governments to meet such a high standard before enacting generally applicable laws that incidentally burden the exercise of religion. In the ensuing two decades, however, some states have nevertheless sought to require governments to satisfy the compelling governmental-interest test. The proposed North Dakota amendment is the latest effort to enact a state constitutional amendment to provide greater protection for religious liberty than the U.S. Supreme Court has provided based on the federal Bill of Rights.
 
Meanwhile, the Florida legislature approved a measure for the 2012 ballot eliminating a provision in the state constitution’s religious liberty clause prohibiting public funds from supporting sectarian institutions. Blaine amendments of this sort originally were added to state constitutions in the 19th century, largely out of a desire to limit state financial support of Catholic schools, and the Florida Supreme Court and other state courts have relied on these provisions in recent years to impose greater restrictions on school voucher programs than the U.S. Supreme Court has imposed. A Florida district judge in December 2011 initially ordered the removal of the amendment because of what he deemed misleading ballot language. By virtue of an important statutory change in state elections law adopted earlier in the year making it more difficult for judges to disqualify amendments, however, the attorney general was able to rewrite the language and place the amendment back on the ballot.
 
Various other rights-related amendments will appear on the 2012 ballot. Amendments in Kentucky and Wyoming would secure hunting and fishing rights. Similar amendments have passed in other states in recent years. An Alabama amendment would secure the right to a secret ballot in union-organizing elections, following four states that enacted such amendments in 2010. An Oklahoma amendment would eliminate any preference based on race or gender in public hiring, contracting or education, following four states that have enacted amendments restricting affirmative action since the mid-1990s.
 
Governing Institutions
Several amendments were approved in 2011 or qualified for the 2012 ballot regarding voting and elections, especially voter identification requirements. Mississippi voters initiated and approved an amendment requiring voters to submit photo identification after the legislature declined to adopt a statute along these lines. Because all election-related changes in Mississippi must be pre-cleared by the U.S. Justice Department pursuant to Section 5 of the Voting Rights Act, this amendment has not yet taken effect.
 
In Missouri, the legislature placed a similar amendment on the 2012 ballot as a way of overcoming a 2011 gubernatorial veto of a photo ID law and as a response to a 2006 state  supreme court ruling invalidating a prior legislative effort along these lines. Legislative supporters of a photo ID requirement in Minnesota are also scheduled in their 2012 session to consider such a measure as a constitutional amendment for submission to the voters. This is a way for the Republican-controlled legislature to bypass the Democratic governor’s veto of a statutory photo ID measure in the previous year’s session.
 
In other election-related amendments in 2011, Washington state voters approved an amendment removing an unenforceable 60-day residency requirement to vote for president; the amendment makes clear that a 30-day residency requirement in another clause of the  constitution applies to all elections, including presidential elections. Meanwhile, Maine voters approved an amendment making several changes to the state’s redistricting process. The  amendment stipulates that beginning after the next census, the legislature shall redraw  legislative districts not three years after the census is taken, as is currently done, but one year after the census, as is the norm in other states. The amendment also constitutionalizes a current statutory requirement that congressional district maps be approved by a two-thirds legislative supermajority.
 
One amendment considered in 2011 dealt with the judicial branch. Ohio voters defeated an amendment increasing the judicial retirement age and making several other changes to the judicial article. Currently, Ohio judges may not begin a term on the bench if they are older than 70. The defeated amendment would have raised the age limit to 75.
 
Several amendments approved by voters in 2011 affect the executive branch. Texas voters approved an amendment authorizing the governor to issue pardons not only to people convicted of an offense, but also to people who have completed deferred adjudication programs. The  Delaware legislature provided the requisite second approval—no popular referendum is required in Delaware—for an amendment increasing the annual amount of compensation an officer must receive before senate confirmation is required for filling that position.
 
Although no amendments affecting the legislative branch were voted on in 2011, several have qualified for the 2012 ballot. Among them, opponents of California’s legislative term limits provision have qualified an amendment via the initiative process that would adjust the current rules. As a result of a 1990 California amendment, individuals may serve no more than six years in the state assembly and no more than eight years in the state senate, for a lifetime limit of 14 years of legislative service. The amendment on the 2012 ballot would establish a lifetime limit of 12 years of legislative service, but would allow legislators to serve up to 12 years in the assembly or the senate or some combination of the two offices. California voters defeated a similar effort to relax existing legislative term limits in 2008, but a key difference between that amendment and the pending 2012 one is the proposed new limits on legislative service would not apply to current officeholders.
 
Policy
Voters in 2011 approved several amendments regarding taxation, including a complex Louisiana amendment. The main purpose of the amendment is to dedicate additional money from the state’s tobacco settlement fund to the Taylor Opportunity Program for Students— known as  TOPS—that provides financial aid for students enrolled in the state’s public and private colleges. After Gov. Bobby Jindal vetoed a legislative effort to renew a 4-cent cigarette tax increase and  legislators could not override his veto, they added a renewal of this tax to the proposed constitutional amendment and dedicated the tax revenue to the TOPS scholarship fund. Voters approved this multi-faceted amendment in an October 2011 election.
 
Louisiana voters also approved, in a late- November election, an amendment prohibiting imposition of new real estate transfer taxes. By enacting the amendment, Louisiana joins Missouri and Montana, both of which added bans to their constitution in 2010, in order to prevent imposition of such taxes that are collected in all but 13 states. Meanwhile, Texas voters approved an amendment exempting surviving spouses of totally disabled veterans from property taxes.
 
Voters in two states considered amendments regarding state rainy day funds. Louisiana voters rejected a technical change that would have given the legislature more time to replenish the state rainy day fund after making a withdrawal. Washington state voters approved an amendment requiring the legislature to set aside additional money for the state rainy day fund in any year when tax revenues increase by a specified amount.
 
Voters approved several amendments dealing  with other fiscal policy matters. Texas voters approved a pair of amendments authorizing the Texas Water Development Board to issue  additional general obligation bonds to pay for wastewater treatment plants and permitting the Texas Higher Education Coordinating Board to issue more bonds to support student financial aid. Texas voters rejected an amendment though that would have given to counties the same power currently possessed by cities to issue bonds for the redevelopment of blighted property.
 
Louisiana voters approved an amendment dedicating a portion of any nonrecurring revenue in the next several years to addressing unfunded liabilities in two of the state’s retirement systems. Louisiana voters also approved an amendment elevating to constitutional status a medical malpractice fund and preventing any possibility that a future legislature might dip into the fund to make up a budget shortfall.
 
New Jersey voters approved one gambling-related amendment. The amendment authorizes the legislature to enact a statute allowing Atlantic City casinos and racetracks to permit betting on sporting events. Currently, federal law does not permit sports betting in New Jersey. The New Jersey amendment, as well as a state law allowing for sports betting that was enacted several months after the amendment’s passage, are meant to anticipate a possible change in the federal law. 
 
 
Conclusion
Several trends emerge from a review of state constitutional developments in 2011. First, the constitutional amendment process continues to serve as a vehicle for achieving goals unattainable through the legislative process. This was evident in Mississippi, where supporters of stricter voter identification requirements were unable to secure legislative passage of a statutory measure and turned instead to the constitutional initiative process and were successful in approving this measure as a constitutional amendment. In Missouri, legislators supported stricter voter identification requirements, but they were blocked by a gubernatorial veto.  Legislators turned instead to the constitutional amendment process, where the governor does not play a role, and have placed the issue before voters in 2012. Louisiana legislators also relied  successfully on the constitutional amendment process to bypass a gubernatorial veto, in this case for the purpose of renewing a cigarette tax increase by attaching it to a broader amendment approved by voters.
 
Second, many constitutional amendments in recent years have been responsive to federal or state court decisions. At times, state constitutional amendments are passed to secure protection  or more rights than the U.S. Supreme Court is willing to guarantee through its interpretation of the U.S. Constitution. A Mississippi amendment restricting use of the eminent domain power is the latest example of relying on state constitutional amendments to respond to the U.S. Supreme Court’s 2005 Kelo decision by providing greater protection for property rights. Also of note is a North Dakota amendment on the 2012 ballot that would respond to the U.S. Supreme Court’s 1990 Oregon v. Smith decision by requiring the government to satisfy a compelling interest test before burdening the exercise of religion.
 
At other times, state constitutional amendments are enacted for a quite different purpose—to prevent state courts from expanding rights beyond the federal Bill of Rights guarantees. This is most evident in the 30 state constitutional amendments enacted from 1998 to 2008 to prevent state courts from legalizing same-sex marriage, as well as in the same-sex marriage amendments placed on the North Carolina and Minnesota ballot in 2012. This is also evident in a pair of Florida amendments on the 2012 ballot. One proposed Florida amendment would prevent state courts from interpreting the state constitution to provide greater protection for abortion rights than the U.S. Supreme Court has guaranteed. Another proposed Florida amendment would eliminate state constitutional language that has been relied on by state courts to provide greater restrictions on public aid of religious schools than the U.S. Supreme Court has required.
 
A third development is the continuing reliance on commissions instead of conventions to achieve  constitutional reform. For much of American history, state constitutional conventions were held regularly, though somewhat more frequently in some states than others. In fact, 233 constitutional conventions have been held since 1776. With the exception of an unusual and short-lived 1992 Louisiana convention, however, no state constitutional conventions have been held in the last quarter century. All seven mandatory convention referendums in recent years—three in 2008 and four in 2010—were defeated.3 And there is little expectation that any of the three mandatory convention referendums on the ballot in 2012 in Alaska, Ohio and New Hampshire will meet with success. Legislatures, however, have generally looked more favorably on constitutional commissions, viewing them as an alternative to constitutional conventions and occasionally as a way of blunting support for conventions. The creation in 2011 of the Alabama Constitutional Revision Commission and Ohio Constitutional Modernization Commission are the most recent examples. 

Notes

1 Mississippi originally adopted the constitutional initiative process in 1914, but the state  supreme court in 1922 invalidated the amendment providing for the initiative process. It was not  until 1992 that voters approved an amendment reinstating the constitutional initiative.  Amendments had been proposed in Mississippi via the initiative process in 1995 and then again in 1999, but were defeated by voters on both occasions.
2 This phenomenon of relying on state constitutional amendments to assist in generating challenges to U.S. Supreme Court precedents is discussed in John Dinan, “State Constitutional Amendment Processes and the Safeguards of American Federalism,” Penn State Law Review 115 (Spring 2011): 1007–1034.
3 The results of recent mandatory convention referendums are detailed in John 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. 

Acknowledgements
The Council of State Governments and the author would like to thank the following individuals for their contribution.

Alabama.................... Nancy Ekberg
Alaska ....................... Jerry McBeath
Arizona ..................... Toni McClory
Arkansas ................... Art English
Colorado ................... Richard B. Collins
Florida ....................... Rebecca Mae Salokar
Georgia ..................... Robert M. Schaefer
Hawaii ....................... Anne Feder Lee
Indiana ...................... Andrew Downs
Kentucky ................... Michael W. Hail
Louisiana .................. Warren M. Billings
Michigan ................... Robert A. Sedler
Minnesota ................. Mary Jane Morrison
Mississippi ................. John W. Winkle III
Nebraska ................... Anthony B. Schutz
New Jersey ................ Robert F. Williams
New Mexico .............. K. Seckler
New York .................. Robert N. Wells
North Carolina ......... John Dinan
North Dakota ........... Dana Michael Harsell
Ohio ........................... Steven H. Steinglass
Pennsylvania ............. Joel Fishman
Rhode Island ............ Mel A. Topf
South Dakota ........... Michael Card
Utah ........................... Robert H. Rees
Virginia ..................... John Dinan
Washington ............... Hugh D. Spitzer
Wisconsin .................. Michael Richter Fine

 

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