GREENSBORO, N.C. (WGHP) – The sort of constitutional drama that played out in Ohio on Tuesday – when voters rejected a Republican attempt to change the threshold for their voices to be heard – couldn’t happen in North Carolina for one underlying reason: The public has no direct recourse to change the state’s constitution unless legislators allow it.
Yes, Republicans controlling the North Carolina General Assembly could emulate their counterparts in Ohio and create a ballot initiative to raise from a simple majority – as it now stands – the percentage of voters required to pass constitutional changes to a “super” level of 60%.
But the overriding issue in Ohio was that GOP lawmakers wanted a supermajority to be required – an idea rejected by about 57% of 3.5 million votes – because of a citizen-developed constitutional amendment on the ballot in November to establish abortion rights. Lawmakers and advocacy groups saw the change to 60% as a first line of defense against that amendment.
That second thing couldn’t happen in North Carolina – and most states – because the public doesn’t have the right to initiate any changes in the state constitution. Voters only can adopt or reject the ideas forwarded by the General Assembly.
John Dinan of Wake Forest University is a noted national expert on state constitutions, and he has monitored this process closely, compiling analyses for The Council of State Governments.
And he will tell you that the process for amending state constitutions varies significantly in the way amendments are introduced, how much support is required from lawmakers to initiate them and how many voters must approve them as well. That’s a fluid process that lawmakers are trying to control, as the outcome in Ohio shows, meaning voters don’t always have the loudest voice about how their lives will be governed in the future.
“A number of other states in the last several years have been trying to make their constitutions harder to change, generally with an eye to limiting access to voter-initiated amendments that are currently an option in 17 states,” Dinan wrote in an emailed response to questions from WGHP. “These efforts have occasionally been successful – Florida raised its ratification threshold to 60% in 2006, and Colorado raised its ratification threshold to 55% in 2016, for instance, and various states have made raised the threshold of signatures needed to be collected to place voter-initiated amendments on the ballot.”
North Carolina is kind of in the mainstream of how this process works: Three-fifths of lawmakers must approve a bill to create the amendment and place it on the ballot for a general election. If a simple majority of voters approve the amendment, then lawmakers draft new bills to enact the statute.
You may recall that this process has been at the essence of two legal battles to have voter ID implemented. After federal courts struck down an NC law passed in 2013 to create voter ID, lawmakers in 2018 made the issue one of six amendments presented to voters that November.
The ID amendment was one of four approved, by state courts last year – first a trial court and then the NC Supreme Court – overturned the law based on the bill that authorized the amendment. The new GOP majority on the NC Supreme Court reversed all that in April.
“For North Carolina, we do not have a constitutional provision allowing public initiatives or referendums to be placed on the ballot … Anything on the NC ballot must go through the legislature’s supermajority vote,” Michael Bitzer, a political science professor at blogger at Catawba College, wrote to WGHP. “Only Massachusetts, as one of the original states, has the initiative process available among the original states. It is much more a mid-Western and Western state activity.”
Dinan says that 17 states currently allow voter-initiated state constitutional amendments and that Mississippi had been an 18th, but its process is on hold because of a recent state court ruling.
“The vast majority of these states adopted these processes in the first few decades of the 20th century, though a handful of states adopted these processes in the 1960s-1970s,” he said. “North Carolina has not given serious consideration to allowing voter-initiated amendments.
“And then there are occasionally calls by groups to ADD voter-initiated processes, but no state has added such a process since 1992. And so there are few prospects of adding such processes in additional states.”
States’ varying approaches
Dinan’s reports for The Council of State Governments and an analysis of this issue that was published in July by the Brennan Center for Justice are quite thorough and show the incredible complexity of how each state structures and processes the idea of amending its constitution – something, Dinan wrote for Brennan, that has happened around 7,000 times in the 50 states.
“States vary in how often they amend their constitutions,” Dinan wrote in his report for the Brennan Center. “The constitutions of Alabama, Louisiana, South Carolina, Texas, and California are amended more than three to four times per year, on average. At the other end of the spectrum, the Tennessee, Kentucky, Indiana, Illinois, and Vermont constitutions are amended only once every three to four years on average.”
The percentages of votes required for legislators to adopt an amendment are terribly complex, and some even have different levels based on whether the amendment addresses a change in tax rates.
There are five states whose rules were so complex that they only could be explained in footnotes. Delaware doesn’t even require a referendum once the legislature approves an amendment by a 2/3rds margin.
“It is unusual, I know, for the legislature to be able to amend the constitution without any direct participation of the voters,” Dinan said. “But … the idea is that because the legislature has to pass the amendment in two separate sessions separated by an intervening election, the voters could express their disagreement with a pending amendment by voting out the legislators who had voted for it the first time and prevent it from passing a second time.”
Otherwise, as Dinan’s research shows, Tennessee requires a simple majority of both chambers – which, for example, is 170 members in North Carolina – on the first vote to pass an amendment, but second passage requires a 2/3rds approval.
That 67% is the norm in 20 states, and in North Carolina, that would mean 34 senators and 80 members of the House would have to OK an amendment rather than the current 30/72, the three-fifths that is the requirement in seven other states.
The simple majority is the rule in 17 states, and Dinan, who included American properties – Samoa, North Mariana Islands and Puerto Rico – reported that North Mariana requires a 3/4ths approval.
But if you read this chart compiled by Dinan, you can see in the footnotes just how much nuance there is on the issue:
- (a) In all states not otherwise noted, the figure shown in the column refers to the proportion of elected members in each house required for approval of proposed constitutional amendments.
- (b) As a result of a requirement approved in 2022, amendments increasing taxes must be approved by a three-fifths vote on the amendment.
- (c) Legislature may not propose amendments to more than six articles of the constitution in the same legislative session.
- (d) Three-fourths vote in each house at one session, or majority vote in each house in two sessions between which an election has intervened.
- (e) Three-fifths vote on amendment, except that an amendment for “new state tax or fee” not in effect on Nov. 7, 1994, requires two-thirds of voters in the election.
- (f) Two-thirds vote in each house at one session, or majority vote in each house in two sessions.
- (g) In Hawaii, the majority vote on amendment must be at least 50 percent of the total votes cast at the election; or, at a special election, a majority of the votes tallied which must be at least 30 percent of the total number of registered voters. In Nebraska the majority vote on amendment must be at least 35 percent of the total votes cast at the election.
- (h) In Louisiana, if five or fewer political subdivisions of the state are affected, majority in state as a whole and also in each of affected subdivisions is required. In Maryland, if an amendment affects only the City of Baltimore or only one county, majority in state as a whole and also in affected subdivision is required.
- (i) Two-thirds of all members of the legislature.
- (j) Majority of members elected sitting in joint session.
- (k) The two-thirds must include not less than a majority elected to each house.
- (l) Three-fifths of all members of each house at one session, or majority of all members of each house for two successive sessions.
- (m) If a proposed amendment is not approved at the election when submitted, neither the same amendment nor one which would make substantially the same change for the constitution may be again submitted to the people before the third general election thereafter.
- (n) Amendments concerning certain elective franchise and education matters require three-fourths vote of members elected and approval by three-fourths of electors voting in state and two-thirds of those voting in each county.
- (o) Majority vote to amend constitution, two-thirds to revise (“revise” includes all or a part of the constitution).
- (p) Emergency amendments may be passed by two-thirds vote of each house, followed by ratification by majority vote of electors in election held at least one month after legislative approval.
- (q) Two-thirds of members of each house, first passage; a majority of members of each house after popular ratification.
- (r) Majority of members elected to both houses, first passage; two-thirds of members elected to both houses, second passage.
- (s) Majority of all citizens voting for governor.
- (t) Two-thirds vote in the Senate and majority vote in the house on first passage; majority in both houses on second passage. As of 1974, amendments may be submitted only every four years.
- (u) Within 30 days after voter approval, governor must submit amendment(s) to U.S. Secretary of the Interior for approval.
- (v) If approved by two-thirds of members of each house, amendment(s) submitted to voters at special referendum; if approved by not less than three-fourths of total members of each house, referendum may be held at the next general election.
- (w) The legislature may, by a four-fifths vote in Nebraska or a two-thirds vote in Oklahoma, call a special election for voters to consider amendments.
- (x) There is an exception for an amendment containing a supermajority voting requirement, which must be ratified by an equal supermajority.
- (y) An amendment repealing, in whole or in part, any constitutional provision only requires approval by a majority on the amendment.
Ohio’s idea of going to a supermajority of voters required to adopt an amendment is not unique, but it is rare. All but seven states say a simple majority of votes cast on the issue (if 100 vote on an amendment and 51 vote yes, it is adopted) is sufficient.
As Dinan noted, Florida voters adopted that 60% level in 2006. Colorado requires 55% as a threshold, and New Hampshire is the most restrictive, at 2/3rds of ballots cast. Tennessee, Minnesota, Wyoming and Hawaii require amendments to be approved by a majority of all votes in an election, so if 110 votes are cast in an election and 10 of those voters didn’t vote on an amendment, they would count against the required percentage.
“If you are trying to compare various processes for amending a state constitution, there are major components to the process that makes it a bit complicated to ‘rank order’ restrictiveness in this process,” Bitzer said. “By my analysis, I would say that if a state requires a 2/3 legislative session vote and required for two sessions, with a super-majority vote (2/3 or 3/5) by the public, that would be the most restrictive process.
“Now, there’s a second ‘restrictiveness’ aspect to this process … and that is, who is the ‘gatekeeper’ for initiating the amendment process? In several states, petitions by the public can trigger the amendment process as well.
“There is also the option of a constitutional convention in a state. … North Carolina’s constitution allows for such a convention, but again only by the legislature (with 2/3 vote) and then a majority vote for the authorization and ratification (separate votes).”
Said Dinan: The changes to the amendment ratification rules that were under consideration and failed in Ohio yesterday [Tuesday] and that were approved in Florida and Colorado in recent decades apply to ratification of all amendments (voter-initiated amendments as well as legislature-referred amendments).
“But most of these efforts to change the ratification rules are directed primarily at and are motivated by voter-initiated amendments, even if the changes would apply to all types of amendments.”
Dinan also has a chart that breaks down how ballot initiatives are introduced in those 18 states that allow them, and those specifications are tied to various factors, including how many people voted for in a specific race in the prior election. He said no state has voted to add voter-initiated concepts since 1992.
For abortion rights advocates in Ohio to get that amendment on the ballot in November, they were required to get signatures from voters that equaled 10% of the total number of voters who voted for governor in the last election.
Some 4,134,877 voted when Republican Mike DeWine was elected last November, which means 413,488 signatures were required. But at least 55% of those qualified electors had to live in at least half of Ohio’s 88 counties.
Those sorts of rules are common. Arizona and Oklahoma each require 15% of voters for governor, and North Mariana Islands requires half of all qualified voters. But 15 states require 10% or fewer signatures, and Massachusetts requires only 3% of those who voted for governor, as long as there were more than 25,000.
The distribution of signatures requirements as displayed on this chart by Dinan shows wide variation:
- (a) Initiatives can only be used to amend substantive or procedural aspects of Article IV, the Legislature Article, and cannot be used to amend any other articles.
- (b) Before being submitted to the electorate for ratification, initiated measures must be approved at two sessions of a successively elected legislature by not less than one-fourth of all members elected, sitting in joint session.
- (c) Before being submitted to the electorate, initiated measures are sent to the legislature, which has the option of submitting an amended or alternative measure alongside of the original measure.
- (d) In a May 2021 ruling featuring a challenge to an initiated amendment approved by voters in 2020 legalizing medical marijuana, the Mississippi Supreme Court ruled that the initiative process is invalid in Mississippi and can no longer be used, because the constitutional provision creating the initiative process requires signatures to be distributed among five congressional districts, but Mississippi now has only four congressional districts, thereby rendering the initiative process unusable until the constitutional provision is amended.
- (e) In March 2023, the Arkansas legislature enacted a statute increasing this distribution requirement to 50 counties, but this is currently being litigated.
There were at least three bills to establish constitutional amendments filed in North Carolina during this legislative session, and Rep. Jon Hardister (R-Guilford County) was behind two of them.
Rep. Jay Adams (R-Catawba County) filed House Bill 376 to get rid of population-based districts in the state Senate and replace them with a senator for every two counties.
Hardister, who is seeking the Republican nomination for labor commissioner in 2024, wanted to endorse the idea of making North Carolina a “right-to-work state” by filing House Bill 614 to make the status more difficult to change.
Hardister was also a co-sponsor of a bill that create an amendment to limit the number of early voting days.
None of the three measures advanced even to being heard in committee, but they are indicative of the proactive legislation that may or may not have footing with the public’s interests.
Hardister did not respond immediately to emails and text messages seeking to know more about how these constitutional amendments emerged and why they didn’t achieve any consideration and the state’s process for amendments in general.
Would things change in North Carolina?
Is this amendment process effectively representing voters and residents in North Carolina? Is the current process less democratic?
“If we are talking about a ‘more direct’ form of democracy, then yes, having the public propose and enact the most supreme form of state law (constitutional law) would be the prime form of democracy,” Bitzer said. “But we are not a pure democracy in our governing system, because sometimes the ‘public’ may be moved to do things that are antithetical to true self/popular governance, thus our constitutional democratic republic form of government.”
Said Dinan: “When we talk about the states as laboratories of democracy and experimentation, this applies particularly well to the processes that states use to amend their state constitutions, in that states have long experimented with a wide range of rules and processes and continue to adjust these processes over time.”
North Carolina has had three constitutions since it became a founding state in 1776: its original constitution, another passed after the Civil War (1868) and the most recent, passed in 1971.
That effort included numerous “amendments approved by the General Assembly and ratified by the people” that reorganized the executive branch, banned poll taxes and provided various other tax platforms. It also repealed “the literacy test for voting, but that amendment was defeated in the statewide election -- even though, after the Voting Rights Act of 1965, it could no longer be enforced,” the State Library of North Carolina says.
Bitzer said he isn’t “aware of any proposed changes to the 1971 state constitution to increase the majority popular vote for ratification or provide for the initiative/referendum.”
A search at the legislative library didn’t show an immediate indication of such legislation.
Dinan, citing the results in Ohio, said that often “when voters are asked to increase voter ratification thresholds or otherwise make it more difficult to use voter-initiated amendment processes the voters reject these measures. And so it is always an uphill battle for public officials who seek to make it harder to amend constitutions, particularly by making it harder to propose and ratify citizen-initiated amendments, and Ohio's failed measure was just the latest in a long string of measures that have tried to make it more difficult to amend constitutions and that voters have rejected.”