How States Can Change The Constitution

The process of amending the constitution differs across states. While some states like Arizona and Oklahoma have high bars for proposing amendments, others like Massachusetts have lower thresholds. In most states, there are four ways to propose constitutional amendments: through legislatively referred amendments, citizen-initiated amendments, constitutional conventions, and automatic ballot referrals. Once an amendment is proposed, it must be ratified by three-fourths of the states to become part of the Constitution. While Congress does not have a direct role in the amendment process, Article V outlines the procedures for amending the Constitution, and certain subjects are unamendable.

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Citizen-initiated amendments

In the United States, citizens can propose and vote on constitutional amendments directly without needing legislative referral through the initiative process. This is known as an initiated constitutional amendment (ICA), which is a citizen-initiated ballot measure that amends a state's constitution. Of the 26 states that provide citizens with the power of initiative, 18 states allow citizens to initiate constitutional amendments. These measures are direct in 16 states and indirect in two states—Massachusetts and Mississippi.

In a direct initiative, a proposed constitutional amendment is put to the vote after a sufficient number of citizens have signed a petition requesting it. The details of the process vary by state. For example, in Massachusetts, if enough signatures are submitted for an ICA, the initiative first goes to the legislature, where it must gain approval in two successive legislative sessions from one-quarter of state senators and representatives voting together in a joint session. Massachusetts is the only state with this requirement for ICAs.

On the other hand, an indirect initiative goes to the state legislature, which can take various actions on the proposal before it goes to the voters. In Mississippi, before 2021, the legislature had to either approve the measure, ignore it (but it still goes to the ballot), vote against it without providing an alternative (but it still goes to the ballot), or approve an alternative amendment to appear alongside the original citizen proposal. However, a May 2021 decision by the Mississippi Supreme Court effectively banned future use of indirect initiatives in the amendment process.

To place a measure on the ballot, citizens must gather a predetermined number of signatures from registered voters in a state. The signature requirement varies based on the districts targeted for signature collection. For example, in Mississippi, there is a signature distribution requirement based on the five congressional districts in the state. Most ballot measures are placed on the ballot through citizen initiatives or legislative processes. Still, they can also be placed automatically by a special commission or a state constitutional convention.

Legislatively-referred amendments

A legislatively-referred constitutional amendment is a legislative referral that amends a state's constitution. In 49 of the 50 states in the US, voter approval is required to amend a state constitution. The exception is Delaware, where voter approval is not required for state constitutional amendments.

Legislatures in most states have the option to refer a state statute to voters. However, the legislative rules and procedures for changing state constitutions through a referred ballot measure vary from state to state. For example, in Maryland, a constitutional amendment affecting a specific jurisdiction must be approved statewide and in the specific jurisdiction. In Arkansas, Illinois, Kansas, and Kentucky, legislatures cannot refer more than a certain number of constitutional amendments to the ballot. In Pennsylvania, when voters reject a proposed constitutional amendment, the same amendment cannot be referred to voters for at least five years.

Most ballot measures are placed on the ballot through citizen initiatives or legislative processes. Others are placed on the ballot automatically, by a special commission, or by a state constitutional convention. In 48 of the 49 states that require voter approval of constitutional amendments, voter approval is the final step leading to ratification. In South Carolina, when voters approve a constitutional amendment, the amendment returns to the state legislature, which must approve it for a second time.

In most cases, a referendum is a legal requirement for the amendment to be ratified. This is known as a mandatory referendum. Almost all legislatures in states and territories in the US have the power to put state constitutional amendments to a referendum.

Constitutional conventions

The US Constitution provides that an amendment may be proposed by Congress with a two-thirds majority vote in both the House of Representatives and the Senate. Alternatively, two-thirds of state legislatures can call for a constitutional convention to propose amendments. While no amendment to the US Constitution has ever been proposed by constitutional convention, it is a valid method.

In Massachusetts, citizen-initiated amendments must secure support from one-fourth of the legislature members, sitting in joint session and voting in two consecutive sessions, before they can appear on the ballot. Citizen-initiated amendments in Nevada must be approved by a majority of voters in two consecutive elections.

Florida is unique in allowing constitutional commissions to submit amendments directly to voters. A Constitution Revision Commission meets every 20 years and can propose constitutional amendments on any subject. A separate Taxation and Budget Reform Commission meets every 20 years, staggered with the other commission, so one meets every 10 years. Arizona and Oklahoma have the highest bar for citizen-initiated amendments, requiring supporters to collect signatures equal to 15% of votes in the last gubernatorial election.

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Ratification by state legislatures

The process of amending the Constitution of the United States is outlined in Article V of the Constitution. The Constitution provides that an amendment may be proposed by Congress with a two-thirds majority vote in both the House of Representatives and the Senate. Alternatively, an amendment can be proposed by a constitutional convention called for by two-thirds of the state legislatures.

Once an amendment is proposed, it is submitted to the states for their consideration. The Archivist of the United States, who heads the National Archives and Records Administration (NARA), is responsible for administering the ratification process. The Archivist sends a letter of notification to each state governor, along with informational material prepared by NARA's Office of the Federal Register (OFR).

The process of ratification by state legislatures involves the following steps:

• The governors formally submit the proposed amendment to their state legislatures. In some cases, a state may call for a convention, depending on what Congress has specified.
• The state legislatures debate and vote on the proposed amendment.
• If a state legislature ratifies the amendment, it sends an original or certified copy of the state action to the Archivist of the United States.
• The OFR examines the ratification documents for legal sufficiency and the presence of an authenticating signature.
• If the documents are in order, the Director of the Federal Register acknowledges receipt and maintains custody of them.
• The amendment becomes part of the Constitution once it is ratified by three-fourths of the states (38 out of 50 states).
• The OFR verifies the receipt of the required number of authenticated ratification documents.
• A formal proclamation is drafted for the Archivist to certify that the amendment is valid and has become part of the Constitution.
• The certification is published in the Federal Register and U.S. Statutes at Large, serving as official notice to Congress and the nation that the amendment process is complete.

It is important to note that the states have the power to initiate the amendment process by calling for a constitutional convention, and they play a crucial role in ratifying and adopting amendments to the Constitution.

The role of the Federal Register

The process of amending the Constitution of the United States is outlined in Article V of the Constitution. The Constitution provides that an amendment may be proposed by Congress with a two-thirds majority vote in both the House of Representatives and the Senate, or by a constitutional convention called for by two-thirds of the state legislatures.

The proposed amendment, along with the method of ratification, is then submitted to the States for their consideration. The OFR plays a key role in facilitating this process by sending a letter of notification to each Governor, along with the informational material prepared by the OFR.

When a State ratifies a proposed amendment, it sends the Archivist an original or certified copy of the State action, which is then conveyed to the Director of the Federal Register. The OFR examines ratification documents for facial legal sufficiency and authenticating signatures. If the documents are in order, the Director acknowledges receipt and maintains custody of them until an amendment is adopted or fails.

Once an amendment is ratified by three-fourths of the States (38 out of 50), the OFR verifies the receipt of the required number of authenticated ratification documents. It then drafts a formal proclamation for the Archivist to certify that the amendment is valid and has become part of the Constitution. This certification is published in the Federal Register, serving as official notice to Congress and the nation that the amendment process is complete.

In summary, the Federal Register, through the NARA's Office of the Federal Register (OFR), plays a vital role in the constitutional amendment process. It facilitates the proposal and ratification of amendments by processing and publishing documents, ensuring their legal sufficiency, and maintaining records. Additionally, it assists in notifying the States and Congress of the progress and completion of the amendment process.

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