State Constitutional Developments in 2006 By John Dinan

State Constitutional Developments in 2006 By John Dinan After several years during which the number of state constitutional amendments had dropped from previous levels, amendment activity increased slightly, in that the number of amendments proposed in 2006 equaled the number of amendments proposed in 2004 and 2005 combined, and the number of amendments adopted in 2006 exceeded the total for 2004 05. Eight states enacted amendments prohibiting legalization of same-sex marriage, and another eight states approved amendments restricting use of the eminent domain power for private purposes. Multiple states approved amendments increasing the minimum wage and regulating the use of tobacco settlement funds. Also of note were a Michigan amendment banning affirmative action, a Missouri amendment ensuring continuation of embryonic stem cell research, and a Florida amendment requiring future constitutional changes to obtain 60 percent of the popular vote. Although the 2006 elections are likely to be most remembered as the occasion when Democrats regained control of the U.S. House and Senate and a majority of state governorships, voters also passed judgment on a sizable number of constitutional amendments (166 proposed and 125 adopted), which represented an increase not only from 2005, an off-year election in most states, but also from 2004, a presidential election year. A significant number of constitutional amendments dealt with individual rights. Same-sex marriage bans continued to be proposed in response to the Massachusetts Supreme Judicial Court s legalization of samesex marriage in Goodridge v. Department of Public Health (2003), and such bans were approved in eight states. However, voters in Arizona defeated a same-sex marriage ban, the first time such an amendment failed. Voters also approved eight constitutional amendments proposed in the aftermath of the U.S. Supreme Court s decision in Kelo v. City of New London (2005) for the purpose of disallowing use of the eminent domain power for economic development purposes; however, voters in California rejected a more expansive measure that would have also compensated property owners for regulatory takings. Meanwhile, Michigan voters approved a constitutional amendment banning affirmative action, following the lead of California voters a decade earlier. Voters also passed judgment on numerous policy amendments. Constitutional amendments for minimum wage increases were approved in three states. Tax and expenditure limitation constitutional amendments were defeated in two states. Various tobaccorelated amendments were also placed on the ballot, and although cigarette tax increases failed in two states, amendments regulating the use of tobacco set- Table A: State Constitutional Changes by Method of Initiation: 2002 03, 2004 05 and 2006 Number of states involved Total proposals Total adopted Percentage adopted 2002 2004 2002 2004 2002 2004 2002 2004 Method of initiation 2003 2005 2006 2003 2005 2006 2003 2005 2006 2003 2005 2006 All methods... 38 40 34 232 166 166 (a) 164 112 125 (a)(b) 70.6 67.5 75.3 Legislative proposal... 36 38 32 208 127 133 (a) 155 95 114 (a) 74.5 74.8 85.7 Constitutional initiative... 11 13 12 24 39 33 9 17 11 (b) 37.5 43.6 33.3 Constitutional convention....................................... Constitutional commission....................................... Source: Based on surveys conducted in previous years by Janice May and updated by John Dinan for the years 2005 and 2006. Key:... Not applicable. (a) Excludes one Alabama amendment that was proposed by the legislature and appeared on the ballot but was determined by the Governor s office prior to the vote not to have received enough votes in the legislature to properly appear on the ballot, and thus even though the amendment was approved by voters in November 2006 and the vote totals were certified by the state canvassing board, the governor did not proclaim the results for the amendment and so it has not received an official amendment number. (b) These totals include one amendment approved in a first election, but not yet in a second election, in Nevada (where initiatives must be approved in two successive general elections). The Council of State Governments

tlement funds were approved in three states. Meanwhile, Missouri voters approved a constitutional amendment ensuring the continuation of all embryonic stem cell research permitted by federal law. Also of note were several amendments dealing with governing institutions and the constitutional amendment process itself. Colorado and South Dakota voters rejected controversial amendments that targeted the judiciary, whether by imposing judicial term limits (in Colorado) or depriving judges of immunity from citizen lawsuits (in South Dakota). Colorado voters approved an ethics reform amendment that, among other things, prevents legislators from becoming lobbyists for two years after leaving office. And Florida voters approved an amendment requiring future constitutional changes to receive 60 percent of the popular vote, making Florida and New Hampshire the only states to require a popular supermajority to approve constitutional amendments. Constitutional Amendment and Revision Methods Constitutional amendments were proposed in 2006 in 34 states, far more than the 11 states that considered amendments in the off-year election of 2005 and slightly above the 33 states that considered amendments in 2004. All told in 2006, 166 amendments were proposed and 125 were approved. This compares with 2005, when 26 amendments were proposed and 14 were approved, and with 2004, when 140 amendments were proposed and 98 were approved. Legislative Proposals and Constitutional Initiatives The 166 constitutional amendments considered by voters in 2006 were all proposed by legislatures or through the initiative process. Legislatures proposed 133 amendments, and 113 of these legislature-initiated amendments were approved, for a passage rate of 85.7 percent. 1 Thirty-three amendments were proposed by constitutional initiative, a process available in 18 states, and 11 of these initiated amendments were approved, for a passage rate of 33.3 percent. 2 Constitutional Conventions and Revision Commissions Although no constitutional conventions were held in 2006, discussions continued from previous years in Alabama and New Jersey about whether to call a convention. In Alabama, the public interest group Alabama Citizens for Constitutional Reform (ACCR) has been trying for several years to build support for a convention to revise Alabama s 1901 Constitution, the longest in the nation. Although proponents of a convention were unable in 2006 to persuade the legislature to submit a convention call to the people, this measure did attract more legislative support than in recent years, with 10 senators voting to move the measure out of a senate committee and seven representatives offering their support in a house committee. 3 In New Jersey, Gov. Jon Corzine has, since his election in November 2005, urged the legislature to find a way to reduce the state s property taxes, the highest in the country. He has also suggested that a constitutional convention might be necessary if the legislature fails to act. In late 2006, the governor and legislature agreed to hold a special legislative session to address the tax issue. As part of the process, the legislature established four special joint Senate/Assembly committees, including one committee charged with assessing the need for constitutional changes. This committee determined that a convention was not needed in order to bring about property tax reform, and that any constitutional changes would be minor and could be handled through the amendment process. But that does not eliminate the possibility a convention will be held. The two houses of the legislature were unable to reach agreement on a tax reform package by year s end, and the governor has continued to argue, including in his State of the State address in January 2007, that a convention remains an option in the event of legislative inaction. 4 The one constitutional revision commission operating in 2006 was the Utah Constitutional Revision Commission, the only commission that has an ongoing charge to propose constitutional amendments that are then considered by the legislature. Commission members in 2006 debated constitutional changes regarding property tax exemptions, gubernatorial succession, the veto power and the judicial rulemaking power, among other issues. Constitutional Changes Voters in 2006 were not asked to approve any new constitutions or wholesale revisions of existing constitutions. The proposed changes all took the form of constitutional amendments. Of particular importance were numerous amendments pertaining to individual rights and various public policy issues. Several notable amendments also dealt with governing institutions and the amendment process itself. Rights As in the past two years, the Massachusetts Supreme Judicial Court s 2003 legalization of same-sex marriage continued to generate constitutional amend- 4 The Book of the States 2007

Table B: Substantive Changes in State Constitutions: Proposed and Adopted: 2002 03, 2004 05 and 2006 Total proposed Total adopted Percentage adopted Subject matter 2002 03 2004 05 2006 2002 03 2004 05 2006 2002 03 2004 05 2006 Proposals of statewide applicability 191 138 141 128 94 (a) 104 (b) 67.0 68.1 73.7 Bill of Rights... 12 16 29 (c) 8 15 25 (b)(c) 66.6 93.8 86.2 Suffrage & elections... 6 14 6 3 6 3 50.0 42.9 50.0 Legislative branch... 24 14 11 17 6 6 70.8 42.8 54.5 Executive branch... 8 5 1 4 4 1 50.0 80.0 100.0 Judicial branch... 19 10 7 11 5 3 57.8 50.0 42.8 Local government... 5 4 1 5 3 0 100.0 75.0 0.0 Finance & taxation... 65 33 55 39 23 44 60.0 69.7 80.0 State & local debt... 10 7 4 5 6 3 50.0 85.7 75.0 State functions... 16 14 3 13 8 (a) 2 81.2 57.1 66.7 Amendment & revision... 3 1 1 3 1 1 100.0 100.0 100.0 General revision proposals... 0 0 0 0 0 0 0.0 0.0 0.0 Miscellaneous proposals... 23 20 23 20 17 16 86.0 85.0 69.5 Local amendments... 41 28 25 (d) 36 18 21 (d) 87.8 64.3 84.0 Source: Based on surveys conducted in previous years by Janice May and updated by John Dinan for the years 2005 and 2006. Key: (a) Includes Delaware, where amendments do not require popular approval. (b) Includes one Nevada amendment that received approval in a first election, but not yet in a second election, as required for initiative amendments in that state. (c) Includes amendments restricting the use of eminent domain, regardless of whether these protections were actually inserted in the bill of rights or in other articles. (d) Excludes one Alabama amendment that was proposed by the legislature and appeared on the ballot but was determined by the Governor s office prior to the vote not to have received enough votes in the legislature to properly appear on the ballot, and thus even though the amendment was approved by voters in November 2006 and the vote totals were certified by the state canvassing board, the governor did not proclaim the results for the amendment and so it has not received an official amendment number. ments intended to forestall similar rulings by other state courts. Prior to 2006, 18 states had enacted constitutional provisions prohibiting same-sex marriage, and Hawaii had adopted a constitutional provision empowering the legislature to limit marriage to opposite-sex couples. Eight more states adopted same-sex marriage bans in 2006, including Alabama (in June) and Colorado, Idaho, South Carolina, South Dakota, Tennessee, Virginia and Wisconsin (all in November), bringing to 27 the number of states with constitutional provisions on the topic. Most of these 2006 measures passed easily, with Alabama and Tennessee voters providing the largest margins of victory, 81 percent to 19 percent in both states. However, South Dakota voters approved a ban by the narrowest margin to date, 52 percent to 48 percent. Moreover, Arizona voters rejected a same-sex marriage ban on a 52-48 percent vote, marking the first time that such a measure has been defeated at the polls. Meanwhile, a constitutional amendment that would effectively overturn the Massachusetts Supreme Court s Goodridge decision and ban same-sex marriage in that state continued to move forward, but only after encountering significant difficulties that nearly derailed its passage. An earlier effort to submit such an amendment by legislative proposal was defeated in September 2005 when legislators failed to give the required second approval to a measure that had received initial legislative approval in March 2004. Opponents of same-sex marriage then turned to the constitutional initiative process, which in Massachusetts requires gathering signatures from 3 percent of the voters in the last gubernatorial election and then receiving the approval of 25 percent of the members of the House and Senate convened as a constitutional convention, and in successive legislative sessions. The first of these requirements was met in December 2005 with the gathering of 170,000 signatures. The second step proved more difficult. Although it was clear that the amendment enjoyed the support of the requisite number of legislators, legislative leaders employed procedural tactics to recess a Nov. 9, 2006, constitutional convention without allowing a vote. With outgoing Republican Gov. Mitt Romney urging the legislature to bring the amendment to a vote on the grounds that it was constitutionally required to do so, and incoming Democratic Gov. Deval Patrick counseling against such a vote on the grounds that it would amount to supporting discrimination, the issue was brought to the Massachusetts Supreme Judicial Court. The justices determined on Dec. 27, 2006, that they lacked the power to compel the legislature to take a vote; but they made it clear that legislators would be disregarding their constitutional duty if they adjourned without bringing the amendment to a vote. Prodded to action by the court s ruling, the The Council of State Governments 5

legislature assembled in constitutional convention on Jan. 2, 2007, the last day of the legislative session, and approved the amendment by the requisite 25 percent 62 members voted for it and 132 voted against it. The amendment still needs to be approved a second time, in the 2007 08 legislative session, again by 25 percent of legislators, before it can be placed on the November 2008 ballot. 5 Other states that could also see same-sex marriage bans on the 2008 ballot include Indiana, where legislators must give their second approval to a proposed amendment, and Florida, where proponents are working to place such an amendment on the ballot through the initiative process. 6 Voters in 2006 also considered numerous constitutional amendments intended to respond to the U.S. Supreme Court s 2005 Kelo decision holding that the use of eminent domain for economic development purposes does not violate the federal constitution. A sizable number of state legislatures in 2005 and 2006 responded to public dissatisfaction with this ruling by making statutory changes to restrict use of the eminent domain power by state and local governments, generally by prohibiting use of the power to condemn private property for economic development purposes. However, property rights advocates also sought to accomplish this goal by amending, and amendments were placed before the voters in nine states. Voters in Arizona, Idaho, Oregon and Washington also passed judgment on statutory measures seeking to restrict eminent domain and/or provide compensation for regulatory takings. Constitutional amendments restricting the use of eminent domain were approved in Louisiana (in September), and Florida, Georgia, Michigan, Nevada (where it received the first of two required approvals), New Hampshire, North Dakota and South Carolina (all in November). However, a more expansive amendment seeking to limit use of eminent domain and to compensate property owners for regulatory takings was rejected in California. Assorted other amendments dealing with rights also appeared on the ballot in 2006. Michigan voters approved an initiated amendment prohibiting public institutions from giving preferential treatment based on race, gender, color, ethnicity or national origin, thereby following California (in 1996) in restricting affirmative action through the constitutional initiative process. Washington voters had approved a statutory measure of this sort in 1998. In fact, Ward Connerly, the principal backer of these measures, announced plans in the aftermath of the Michigan vote to consider organizing similar campaigns in other states with the initiative procedure, including Arizona, Colorado, Missouri, Nebraska, Nevada, Oregon, South Dakota, Wyoming and Utah. 7 Meanwhile, Rhode Island voters approved a constitutional amendment expanding suffrage rights of ex-felons by eliminating a provision denying felons the vote while on probation or parole; felons will now be disenfranchised only while in prison. Additionally, California voters rejected for the second time in two years an initiated amendment that would have required parental notification 48 hours before a minor could obtain an abortion. Oregon voters rejected a similar measure placed on the ballot as a statutory initiative. Policy Voters in 2006 considered a wide range of constitutional amendments dealing with public policy issues, many of which had been blocked in the legislature and were placed on the ballot through the initiative process. Constitutional amendments increasing the minimum wage were approved in three states Colorado, Nevada and Ohio. Arizona, Missouri and Montana voters also approved statutory minimum wage increases. Voters in two states Nebraska and Oregon considered tax-and-expenditure limitation amendments modeled after the Taxpayers Bill of Rights (TABOR) that was added to the Colorado Constitution in 1992 but then partially suspended for five years in 2005. However, voters in both states rejected these measures. (A Maine initiative that was placed on the ballot as a statutory change was also defeated.) Voters passed judgment on a number of constitutional amendments dealing with tobacco policy, regarding cigarette taxes, restrictions on smoking and the use of money from legal settlements between states and tobacco companies. Amendments to increase cigarette taxes were rejected in California (a $2.60 a pack increase) and Missouri (an 80 cents a pack increase). Statutory cigarette tax increases were approved in Arizona and South Dakota. Meanwhile, Ohio voters rejected an industry-supported amendment to restrict smoking in certain public places but permit smoking in other public places and also pre-empt local governments from banning smoking in these other places. The Ohio measure was placed on the ballot in an unsuccessful attempt to head off passage of a competing health organization-sponsored statutory measure that imposed much more stringent restrictions on smoking. Similar battles between health organization-sponsored smoking bans and industry-supported counter-measures were waged on a statutory basis in Arizona and Nevada, and in each case the health 6 The Book of the States 2007

organization measure won and the industry measure failed. Additionally, voters in Florida, Idaho and Louisiana approved constitutional amendments regulating use of the settlement money that these states receive from tobacco companies. The Florida measure requires a portion of the settlement money to be spent on youth anti-smoking campaigns. The Idaho measure requires most of the settlement money to be spent on health-related purposes. And the Louisiana measure, approved in September, allows a portion of the settlement money to be used for coastal conservation. 8 Education-spending amendments experienced mixed success in 2006. Voters in Colorado defeated an amendment that would have required at least 65 percent of school spending by local school districts to be dedicated to classroom instruction. But Nevada voters approved an Education First amendment requiring legislators to approve the education spending bill before approving any other spending bill. The intent was to prohibit advocates of higher spending and taxes from, in essence, holding hostage the education spending bill as a way of forcing legislators to support a tax increase, as was done in 2003 in a dispute that led to a controversial Nevada Supreme Court decision, Guinn v. Legislature (2003). 9 Amendments were also placed on the ballot regarding a variety of controversial public policy questions including gambling, drugs, stem cell research and illegal immigration. In terms of gambling, Arizona voters approved an amendment permitting charities to run bingo games, while Ohio voters rejected an amendment that would have authorized slot machines, and Rhode Island voters defeated an amendment that would have permitted the operation of a privately run casino. Regarding drug policy, a proposal to amend the Colorado constitution to legalize possession of up to an ounce of marijuana was rejected. Meanwhile, Missouri voters narrowly approved a complex amendment that supporters said was intended to permit all forms of embryonic stem cell research authorized under federal law. Arizona and Colorado voters approved several immigration-related constitutional amendments. Arizonans passed amendments declaring English the official state language, denying bail to illegal immigrants charged with committing a serious felony, and prohibiting illegal immigrants from collecting punitive damage awards in civil suits. Colorado voters passed a constitutional amendment directing the state attorney general to sue the federal government to bring about enforcement of current immigration laws. Several statutory measures targeting illegal immigration were also approved in these states. Governing Institutions Judges were the target of several amendments, including measures in Colorado and South Dakota that generated a great deal of media attention but were ultimately defeated. Colorado voters rejected an amendment that would have limited state appellate judges to serving a single 10-year term and would have taken effect retroactively, thereby forcing the removal within two years of five supreme court judges and seven appellate court judges. The amendment would have made Colorado the first state to adopt term limits for appellate judges, but it was defeated, 57 percent to 43 percent. Meanwhile, South Dakota voters rejected by a much wider margin 89 percent to 11 percent an even more controversial Jail 4 Judges amendment that would have established special grand juries to evaluate citizen lawsuits against judges and would have stripped judges of their immunity for acts that violated individual rights. Two other proposed amendments that received less national attention but would have had important political implications in Hawaii and Oregon were also defeated. Hawaii voters rejected an amendment that would have repealed the mandatory retirement age of 70 for state judges and thereby would have denied Republican Gov. Linda Lingle the opportunity to make two replacement appointments in the next few years. Oregon voters rejected an amendment intended to give increased representation to rural, more conservative regions of the state by requiring appellate judges to run for election in geographic districts and reside in those districts. 10 Legislators were targeted in various ways by three notable amendments, two of which were approved. Colorado voters approved a wide-ranging ethics reform package that applies to legislators and other public officials. It prohibits them from accepting gifts from lobbyists and from becoming lobbyists themselves within two years after leaving office. A similar two-year lobbying ban, albeit on a statutory basis, was also approved by Montana voters. Meanwhile, Oklahoma voters approved an amendment prohibiting legislators from being paid their salary while in jail on a misdemeanor conviction, in reaction to a recent case where a legislator was paid while spending a month in jail. A felony conviction would already result in their removal from office. However, voters in Oregon rejected an amendment that would have restored legislative term limits six years for representatives and eight years for senators after they were originally adopted in 1992 and took effect after 2000 but were then invalidated by the state supreme court in 2002. The Council of State Governments

Amendment Process In a development that will make it more difficult to secure future constitutional changes, Florida voters in 2006 approved an amendment, by a 58 percent to 42 percent vote, that requires constitutional amendments or revisions to receive 60 percent of the popular vote. An existing provision requiring amendments imposing new state taxes or fees to receive two-thirds of the vote was unchanged. The measure was backed by business groups and was opposed by liberal groups as well as by some conservatives who feared that the new requirement would make it more difficult to use the amendment process to overturn controversial state supreme court decisions, such as the Florida Supreme Court s Bush v. Holmes (2006) ruling striking down a school voucher program. 11 Florida becomes only the second state to require a supermajority of the people to approve constitutional amendments, joining New Hampshire, which requires a two-thirds vote. Five states require approval by a majority voting in the entire election, rather than on the particular question. Trends Several trends emerge from a review of state constitutional developments in 2006. Regarding the methods of state constitutional change, legislativeinitiated and citizen-initiated amendments continue to be the dominant mechanisms, and were in fact the exclusive means by which constitutional changes were proposed this year, as was the case last year. Yet another year passed, therefore, without a constitutional convention, although momentum continued to build for calling a convention in Alabama, and discussion continued in New Jersey about a possible convention to reform the tax system. Several types of amendments appeared on multiple state ballots in 2006 and are likely to reappear over the next several years. Judicial decisions such as the Massachusetts Supreme Judicial Court s Goodridge ruling and the U.S. Supreme Court s Kelo ruling are likely to generate continuing state constitutional responses in the form of bans on same-sex marriage and limits on use of eminent domain for economic development purposes. Public policy issues that are believed to be attracting insufficient attention in the legislative process are also likely to continue generating constitutional amendments, often through the initiative process. Judging from the results in 2006, amendments increasing the minimum wage, restricting illegal immigration and banning affirmative action were all successful and can be expected to return to state ballots in coming years. Although the success rate of tobacco-related amendments was mixed this year, there is good reason to expect more of these amendments to be proposed in future years, especially for the purpose of regulating the use of tobacco settlement funds, and if this year s results are a good indication, they will stand a good chance of passage. On the other hand, tax-and-expenditure limitation amendments are likely to continue to be proposed; but the partial suspension of Colorado s TABOR provision in 2005, followed by the defeat of similar amendments in 2006, could signal that these measures may encounter difficulty in coming years. Notes 1 Excluded from these totals is an Alabama amendment dealing with the selection of members of the Macon County Board of Education. After the amendment had been certified and placed on the ballot, the governor s office determined that it had not received a sufficient number of legislative votes to be properly placed on the ballot; therefore, although the state canvassing board certified after the November 2006 election that the amendment had been approved, the governor s office did not proclaim the results, and it has not been deemed a valid amendment. 2 Included in these totals is a Nevada amendment restricting use of the eminent domain power for private purposes. This measure was approved by voters in November 2006, but because initiated amendments in Nevada are required to be approved by voters in two successive general elections, it must be approved again in November 2008 before it can take effect. 3 David White, Senate panel backs bill to allow vote on constitutional convention, Birmingham News, February 22, 2006, 1B. 4 John P. McAlpin, Corzine: Tax reform must stay top priority, Bergen County Record, January 10, 2007, A1. 5 Frank Phillips and Lisa Wangsness, Same sex marriage ban advances, Boston Globe, January 3, 2007, A1. 6 Cheryl Wetzstein, Gay marriage ballot measures running their course, The Washington Times, January 7, 2007, A2. 7 Leslie Fulbright, Connerly gearing up for wider crusade, San Francisco Chronicle, December 14, 2006, A1. 8 These tobacco-related amendments are discussed in Richard Craver, Tobacco outcomes vary, Winston-Salem Journal, November 9, 2006, D1. 9 Ed Vogel, Question 1: Education First, Las Vegas Review-Journal, October 19, 2006, 43DD. 10 These amendments are discussed in Valerie Richardson, Ballot measures propose limits on judicial authority, The Washington Times, October 24, 2006, A4. 11 Gary Fineout, Constitution just got harder to tinker with, Miami Herald, November 8, 2006 (Netscape version). About the Author John Dinan is associate professor of political science at Wake Forest University. He is the author of The American State Constitutional Tradition and The Virginia State Constitution: A Reference Guide, among other books and articles on. The Book of the States 2007