Some state lawmakers want to rein in constitutional amendments

This year, initiatives in a handful of states have taken swings at raising their thresholds for constitutional change. Backed by Republicans, the proposals are partly aimed at curbing a spate of recent state constitutional amendments that have undermined pro-life protections.

Currently, only four states strictly require more than a simple majority statewide vote for a constitutional amendment to pass. In the Nov. 3 general election, voters in North Dakota and South Dakota will choose whether to do the same. A similar measure failed in Missouri’s Aug. 4 primary by about 60 percentage points, but experts say they expect more states—especially red ones—to pick up on the trend.

Supporters argue that greater restrictions promote stability and safeguards for binding policy change, while critics worry that the change would muzzle the electorate.

State Sen. Jeff Barta is one of North Dakota’s Republican legislators supporting the state’s ballot measure, which would require constitutional amendments to receive at least a 60% popular vote. He said the government is designed to be slow, and if a state’s constitution is easy to change, it enables a bit of a “knee-jerk” reaction.

“I think we have so many things being done emotionally these days, rather than cognitively,” said Barta. “We need to give it some time. We need to give it some thought, and we need to have conversations.”

On the federal level, Article V of the U.S. Constitution details an intentionally obstructive process for constitutional change that follows two main steps. First, an amendment must be proposed through a supermajority vote in Congress or at a convention of states, followed by approval through legislatures or special ratifying conventions in at least three-fourths of the states. In contrast, most states require a simple majority vote of 50% plus one to ratify their own constitutional changes.

“I think there’s recently been an interest in trying to restrict the ways in which this is done, because it’s a form of direct democracy, essentially,” said Michael McGinniss, a law professor at the University of North Dakota. “Whereas our model nationally is a constitutional republic.”

In North Dakota, for example, this amendment process has been used to govern on a variety of issues—from establishing the definition of marriage as a legal union between a man and a woman in 2004 (before the Supreme Court’s 2015 decision in Obergefell v. Hodges invalidated it) to granting farmers and ranchers the right to engage in modern farming practices in 2012. Since its creation in 1889, North Dakota’s constitution has been amended a total of 168 times. Many other state constitutions have likewise been updated dozens or hundreds of times.

State procedures for adopting constitutional amendments vary: In many states, voters approve or reject amendments crafted and proposed by the legislature. Some states also allow citizen-led voter initiatives to bring amendment proposals to the ballot.

Since Roe v. Wade was overturned in 2022, voters in 10 states have passed ballot measures to establish or expand abortion rights in their state constitutions, including through citizen-led initiatives. Nine of those states required only a majority vote for passage.

Michael Card, a former professor of political science and public policy at the University of South Dakota, said that requiring a supermajority vote could stop many kinds of proposed amendments from passing. Card said that less than one-third of proposed constitutional amendments receive 60% of the vote.

Patrick Garry, a University of South Dakota law professor, said that the simple majority approach was a hallmark of the South Dakota populism movement back in the 1890s. He said the concept has a lot of appeal on a theoretical level.

“But now, with the kind of dysfunction of our legislative process, you really have to ask if the initiative and referendum process is being used more—are you using that to bypass the legislative process?” said Garry. “Then you aren’t really getting that debate or study that legislatures can do.”

Referencing a pro-abortion amendment that failed in South Dakota two years ago, Card added that when the legislature doesn’t like a proposal to change the constitution, it can also become a partisan issue.

“The attempt to legalize abortion on a trimester basis, the legislature is very much against that. The citizenry is about evenly split. It would be a fairly close election, if it were to be held again,” said Card.

Since 2022 when the U.S. Supreme Court issued its landmark ruling in Dobbs v. Jackson Women’s Health Organization, individual state governments have handled the authority to regulate abortion. For some states, this has meant enshrining access to abortion within their constitutions—for others, it has meant establishing protections for the unborn. In states where the legislature leans pro-life, restricting constitutional amendments has provided an effective means of safeguarding existing protections.

One state that demonstrates this is Florida, where the threshold to pass a constitutional amendment is 60%. In 2024, two ballot initiatives aimed at legalizing access to abortion and marijuana in the Sunshine State failed despite reaching majority support.

“That kind of illustrates, if you want to protect the ability of your state to protect unborn children, that you need to be able to make it harder for these initiatives to get passed,” said McGinniss.

Mark Jendrysik, a political science professor at the University of North Dakota, added, “I think there’s a general feeling among a certain kind of conservative, that a direct democracy leads to outcomes they don’t like, especially on the abortion questions that have been on the ballot.”

But not all Republican legislators think alike. North Dakota state Sen. Sean Cleary opposes raising the threshold for constitutional change. He views the current arrangement as a way to provide balance in the policymaking process.

“I really trust voters to make the decision that they think is best for our state,” said Cleary. “I don’t really see the need to make it harder to do so.”

If the North Dakota measure passes, Cleary said it wouldn’t necessarily dissuade folks from proposing constitutional amendments on issues that they think are important. But he added, “It would limit it in a way that I think is somewhat undemocratic.”

Utah Democratic state Sen. Kathleen A. Riebe echoed similar arguments in regards to the state’s Republican-backed November measure that would establish a 60% vote requirement to pass ballot initiatives that raise taxes.

“If you’re going to create more tools for the supermajority to stay in power and assert their control, you’re actually undermining the voice of the people,” argued Riebe. “Whether you’re a Democratic state or a Republican state, using your supermajority status to push an agenda is not best for the people.”

Whatever voters in North Dakota, South Dakota, and Utah decide in November, experts predict these states won’t be the last to offer such proposals.

“I think it’s a nationwide movement,” said Jendrysik.