The Right to Amend State Constitutions
abstract. This Essay explores the people’s right to amend state constitutions and threats to that right today. It explains how democratic proportionality review can help courts distinguish unconstitutional infringement of the right from legitimate regulation. More broadly, the Essay considers the distinctive state constitutional architecture that popular amendment illuminates.
Nearly fifty years ago, Justice William J. Brennan, Jr. responded to the Burger Court’s weakening of federal constitutional rights by proposing a turn to the states. He celebrated state constitutions as “a font of individual liberties, their protections often extending beyond those required by the Supreme Court’s interpretation of federal law.”1 Today, as the Roberts Court weakens rights guarantees that even the Burger and Rehnquist Courts reaffirmed, commentators are again looking to state constitutional rights.
There remains much to be gained from attending to state constitutions, as Justice Brennan counseled, but we should not do so only in the way he advised or in the manner most attendant “new judicial federalism” scholarship has suggested. In keeping with Brennan’s recognition that “state courts are construing state constitutional counterparts of provisions of the Bill of Rights as guaranteeing citizens of their states even more protection than the federal provisions, even those identically phrased,”2 courts and scholars have focused on discrete clauses found in both state and federal constitutions.3 But this targeted approach overlooks significant state provisions and obscures fundamental differences between state and federal constitutions.
In this Essay, we focus on a state constitutional right that has no federal analogue and that both informs and illuminates the distinctive state tradition: the right to amend the state constitution. In contrast to the relatively static Federal Constitution, state founding documents have been regularly transformed since the eighteenth century. Constitutional amendment underlies state constitutions’ particular approach to rights, as thousands of amendments have generated the balances these documents strike between individual liberty and collective welfare, government limits, and government obligations.4
Less appreciated, amendment is itself an important state constitutional right. In forty-nine states, the people must vote directly on proposed amendments, and eighteen states further recognize the people’s right to adopt amendments by constitutional initiative. Together with other democratic rights that appear in state constitutions but not the federal charter—from affirmative rights to vote to rights to alter and abolish government—the right to amend recognizes the people’s sovereignty as an active, ongoing commitment. It is a cornerstone of state constitutions.
Today, the right to amend is under attack. Across the country, state legislatures are imposing signature requirements for popular initiatives that would make the ballot-qualification process nearly impossible; introducing supermajority approval requirements; and adopting deadlines, mandatory reviews, and wording requirements for popular initiatives that do not apply to amendments the legislature itself proposes.5 Many of these burdens on the popular-initiative process cannot be viewed as good-government reforms. Indeed, some legislators have been quite explicit about their desire to limit the amendment power or to block particular measures supported by the people but not their representatives—the very divergence that inspired adoption of the constitutional initiative to privilege the people.6
This Essay describes the right to amend state constitutions, canvasses current threats, and considers both practical and theoretical implications. Part I begins by characterizing the state constitutional amendment right and then explores the constitutional architecture this right illuminates. In federal constitutional law, power is the purview of government, and rights are held by individuals. Moreover, rights are commonly understood to protect minority interests from majority excesses. But because they are committed to active popular sovereignty,7 state constitutions contain numerous democratic rights—such as the right to amend—that upend familiar federal distinctions. Democratic rights are both sovereign powers that the people reserve to themselves and rights in the archetypal sense that they impose limits on the permissible scope of government action. State constitutions further suggest that the majority’s exercise of its powers may protect, and not only threaten, minority rights. In recent years, for example, popular amendments have advanced the interests of women, people of color, people who lack insurance, individuals convicted of criminal offenses, and more against hostile state legislatures.
These popular amendments have generated fierce backlash from state legislatures, and Part II turns to ongoing attacks on the right to amend. Despite widespread awareness of state legislative threats to rights such as abortion and voting, the threat to popular amendment as such has gone largely unnoticed—even when it is deployed to target reproductive rights or the franchise. When they are discussed at all, attacks on the right to amend are generally cast as legislative maneuvering, or dirty politics,8 but they are potential constitutional violations as well.
Accordingly, Part III considers how courts and others charged with implementing state constitutions should evaluate laws regulating popular amendment. It describes the adjudicative framework of democratic proportionality and its application to the right to amend. Democratic proportionality review, we argue, can help courts distinguish valid regulation of the initiative process from subversion of it.
As the right to amend highlights, state constitutions enable people to wield power at the same time as they enjoy rights, and they point to the possibility of popular majorities acting in service of both democracy and minority protection. This is the very prospect that many state legislatures are working to extinguish and that democratic proportionality review can help to preserve.
To understand state constitutional rights, we must first consider state constitutions on their own terms. Looking through the familiar federal lens has obscured state constitutions’ distinctive approach to rights, power, and popular sovereignty. Note just a few salient differences.9 In contrast to the Federal Constitution’s spare enumeration of rights, state constitutions guarantee abundant rights. In contrast to the Federal Constitution’s exclusively negative rights, state constitutions recognize positive rights and affirmative government duties. In contrast to the Federal Constitution’s neglect of community, state constitutions temper strong rights with attention to communal welfare. And in contrast to the Federal Constitution’s focus on individual liberties, state constitutions treat rights as a means of guaranteeing democracy as well as personal freedom.
As we have described elsewhere, the state constitutional rights tradition that emerges from these and related features is one that prizes both individual and collective self-determination.10 State constitutions seek at once to guarantee the ability of individuals to direct their lives, free from arbitrary interference or neglect, and the ability of the people to direct government so that it remains responsive to the popular will. They propose, moreover, that such individual and collective self-determination can be mutually reinforcing. State constitutions treat individual rights as vehicles of popular self-rule, and, in turn, they rely on the collective will to protect individual rights.
Constitutional amendment lies at the heart of the distinctive state tradition. First, the practice of regular constitutional amendment has shaped the balances state constitutions strike among individual, community, and government. In broad strokes, this point is a familiar one: Amendments have generated most of the state constitutional rights we enjoy today. While roughly 12,000 amendments have been proposed to both the U.S. Constitution and the fifty state constitutions, state constitutions have been amended more than 7,000 times for the U.S. Constitution’s twenty-seven.11 These amendments have continually reshaped states’ founding documents, but a persistent feature is that many amendments have emphasized popular control over government as a means of guaranteeing rights.12 From nineteenth-century reforms that sought to combat government capture by the wealthy13 to twentieth-century positive rights concerning welfare, health, the environment, and more, state constitutional amendments have recognized new individual rights at the same time as they have insisted upon the democratic majority’s control over government to protect these rights.14 In the state self-determination tradition, rights and self-government travel together.
The second observation is less appreciated: Amendment is itself a core democratic right underlying the project of constitutional self-determination. It is to this point that we now turn.
If the state constitutions we live with today are constitutions made by popular amendment, so too is amendment itself a constitutional right. At first glance, describing a “right to amend” may appear odd, given the default federal lens for constitutional analysis. But state constitutions cast as rights a large number of matters concerning the composition and operation of government and, above all, the role of people in directing it.15 To facilitate active popular sovereignty, every state constitution guarantees an affirmative right to vote,16 and the vast majority recognize numerous other democratic rights, from the right to participate in free and equal elections, to the right to alter or abolish government.17 These guarantees have been central to the state constitutional project of self-governance from the start.
Across the states, the right to amend assumes two main forms. First, in forty-nine states, the right to amend governs constitutional amendments that are proposed by the legislature for popular consideration. Every state but Delaware requires the people to vote on legislatively referred amendments.18 In those states that possess the constitutional initiative, legislative referral is a complement to amendments proposed by the people; in other states, it is the only established route to amendment other than convention. Although state constitutions without the initiative provide a less comprehensive role for the people, these constitutions nonetheless make clear that the popular role in reviewing proposed amendments is not up to legislative discretion but is constitutionally guaranteed.19
The people’s right to vote on legislatively referred amendments emerges from reading amendment-specific clauses together with express democratic rights such as the right to vote and the reservation of all political power to the people.20 As the Kansas Supreme Court has recognized, for example,
[I]t is the right of every elector to vote on amendments to our Constitution in accordance with its provisions. This right is a right . . . of sovereignty. It is every elector’s portion of sovereign power to vote on questions submitted.21
Courts have also recognized more specific entailments of the right to vote on legislatively referred amendments, including the “electorate[’s] inviolable right to be informed of all proposed constitutional amendments upon which it will pass judgment.”22 Because the people are always reviewing the legislature’s proposals, the relevant right might often better be described as a right not to amend: Insofar as the legislature wishes to amend the state constitution, it is the people’s prerogative to reject such proposals.23
Second, and our focus in this Essay, a more expansive and potent right to amend is found in the eighteen state constitutions that guarantee the people’s right to amend by proposing as well as ratifying amendments. The constitutions of Arizona,24 Arkansas,25 California,26 Colorado,27 Florida,28 Illinois,29 Massachusetts,30 Michigan,31 Mississippi,32 Missouri,33 Montana,34 Nebraska,35 Nevada,36 North Dakota,37 Ohio,38 Oklahoma,39 Oregon,40 and South Dakota41 all recognize the people’s right to adopt amendments by initiative. These provisions were added to state constitutions in the twentieth century, beginning in the Progressive Era when a strong movement for direct democracy emerged from concerns about unrepresentative government.42 After Oregon pioneered the initiative in 1902, twelve states adopted it between 1907 and 1918, and four more followed suit in the late 1960s and early 1970s.43
Today, such constitutional initiative provisions are a concrete expression of the state constitutional commitment to popular sovereignty. Complementing the longstanding recognition that “all political power is inherent in the people,”44 these provisions generally state that “the people reserve for themselves the power” to propose constitutional amendments, notwithstanding grants of lawmaking authority to the legislature. Operating in tandem with popular sovereignty clauses and democratic rights such as the franchise, the right to amend guarantees the people’s ability to author and continually revise their fundamental law.
Already, state courts have recognized the people’s right to amend their constitutions (even if they have not always robustly enforced this right). Notwithstanding the language of “power” in most of the relevant provisions,45 courts in all but one initiative state describe amendment as a “right.”46 State courts also emphasize that amendment is an especially important right. The California Supreme Court, for example, has deemed amendment “one of the most precious rights of our democratic process,”47 and the Nebraska Supreme Court has stated that “the right of initiative is precious to the people and is one which the courts are zealous to preserve to the fullest tenable measure of spirit as well as letter.”48 Courts across the nation similarly indicate that they interpret the initiative right liberally,49 treat it as fundamental,50 or make every effort to protect it.51
What should we make of the fact that state constitutions overwhelmingly describe popular amendment as a “power” and state courts overwhelmingly describe it as a “right”? Both less and more, we submit, than it may seem.
Although state courts seldom explain their pivots between rights and power, the move is well founded. State constitutions dissolve dichotomies that we take for granted at the federal level—in particular, between rights and power.
Federal constitutional law rests on a distinction between structural provisions that recognize the powers of government and rights provisions that protect individuals from exercises of government power.52 James Madison famously described individual rights and government power as “two sides of the same coin,” with one beginning where the other ends.53 Even as recent scholarship emphasizes a closer relationship between rights and power, in which voting and political representation may substitute for individual or group protections,54 direct exercises of sovereign power remain the purview of government.
In state constitutions, by contrast, the rights-structure boundary is porous, and the people themselves possess both powers and rights. Because these constitutions emphasize the people as active popular sovereigns, not only individuals who must be shielded from government action, they endow the public with authorities as well as protections. From the start, the many democratic rights they have enumerated have sought to ensure popular control over government as much as protection from that government. For example, the earliest state declarations of rights effectuated popular self-government at the same time as they enumerated individual protections. These declarations cast as rights not only safeguards that would come to be included in the Federal Bill of Rights, such as freedom of the press and the right to a jury trial, but also the people’s power to control their representatives and direct the operations of government.55 Through amendments across the nineteenth and twentieth centuries, including the introduction of direct democracy, state constitutions have continued to prioritize democratic rights, orienting significant rights provisions around maintaining popular control over government.
At the state level, this means that rights and power are closer to the same side of the coin. The people possess powers at the same time as they hold rights, and whether they are properly conceptualized as exercising one or the other frequently depends on context. Rights and powers emerge not as alternatives but as more fluid concepts: When the people act in the first instance, they exercise sovereign power; when the legislature infringes the people’s exercise of their sovereign power, the people also have a right that lies against the legislature.
In the context of constitutional amendment, this explains why state provisions affirmatively declare the people’s power. Colorado’s typical provision, for example, states that “the people reserve to themselves the power to propose laws and amendments to the constitution and to enact or reject the same at the polls independent of the general assembly.”56 But it also explains why Colorado courts have properly referred to amendment as a self-executing right, establishing a rule that “[a]ny legislation which directly or indirectly limits, curtails or destroys the rights given by those provisions is invalid as violative of the rights reserved by the people to themselves.”57 Amendment may be pursued as a popular power and defended as a right. Because we focus in this Essay on legislative threats, we explore amendment as a right against legislative incursion, while recognizing that amendment is also a power the people retain to change their constitutions.58
A second familiar distinction that state constitutions partially dissolve is between majority rule and minority rights. State constitutional amendment rights suggest that majoritarian democracy may be a vehicle for protecting rather than threatening minority interests.
At the federal level, concerns about majorities oppressing minorities have long animated constitutional rights discourse,59 and rights are generally understood as guarantees that protect minority interests by removing matters from popular control.60 But state constitutions confer rights as a means of protecting the people, including the popular majority, from government malfeasance.61 Not only do these constitutions propose “direct popular intervention as a necessary antidote for government recalcitrance,”62 but they also suggest that statewide majorities may safeguard minorities from government mistreatment. With government oppression or under-representation as their main focus, state constitutions complicate the assumed relationship between majority rule and minority rights.
The right to amend is a case in point, both offering the people protection against legislatures that would thwart popular majorities and offering a channel for those majorities to protect minority interests as well as majority interests that are not recognized by government. To be clear, we do not suggest that popular majorities can be relied on to protect minorities. There are too many contrary examples, and as Derrick A. Bell, Jr., Erwin Chemerinsky, and others have emphasized, direct democracy (whether constitutional or statutory) may pose distinct risks for people of color, the LGBTQ community, and other minority groups.63
But as courts and commentators have rightly devoted attention to the question of how to constrain amendments that may trench on minority rights, they have neglected the opposite possibility: that popular constitutional amendment may protect minorities from government oppression.64 There is no necessary connection between majority rule and minority domination. Indeed, many amendments that have been proposed and adopted in recent years reflect popular majority support for broad liberty and equality rights. These initiatives have responded to discriminatory and repressive government measures by seeking to recognize reproductive rights,65 to guarantee sex equality,66 to raise the minimum wage,67 and to restore voting rights to people convicted of felonies,68 among other things.69
It is precisely when the people support such rights against the will of their representatives that we see the harshest attacks on the right to amend. The Florida Legislature’s gutting of the Voting Rights Restoration Amendment, adopted overwhelmingly by the people of Florida in 2018, previewed new legislative efforts to curtail the amendment power itself.70 Exercises of direct democracy that have legalized marijuana, expanded Medicaid, and curtailed gerrymandering have similarly inspired legislative backlash.71
In the last year, abortion has become the fiercest battleground. Following the Supreme Court’s 2022 decision in Dobbs v. Jackson Women’s Health Organization,72 people across the country are mobilizing to protect abortion rights under state constitutions. In August 2022, for example, Kansas voters rejected a proposal to eliminate the state constitutional right to abortion, effectively ratifying the state supreme court’s earlier rights-protecting decision.73 A few months later, voters in California, Michigan, and Vermont amended their constitutions to expressly protect reproductive rights.74 But as popular majorities are seeking to guarantee abortion rights in other states, including Ohio and Missouri, state legislatures are trying to strip them of their ability to amend their constitutions to do so. It is these attacks on the right to amend that we now explore.
The people’s right to amend state constitutions is under attack. In more than half the states with a popular-initiative process, state legislatures have attempted to make the amendment process harder to use or to change the rules to thwart amendments they disfavor. In each of the last few years, the Ballot Initiative Strategy Center has tracked over 100 bills that would limit popular initiatives.75 Many of the new restrictions reflect open disdain for the initiative right rather than policy responses to fraud or inefficiency. Rather than oppose policies that the people might pursue through state constitutional amendment, some state legislatures are trying to subvert the right to amend itself.
Recent measures have come overwhelmingly from Republican legislatures responding to or anticipating popular initiatives that depart from the party’s policy agenda—including initiatives that would guarantee abortion rights, a minimum wage, marijuana legalization, and Medicaid expansion.76 There is, however, nothing inevitable about the partisan and ideological valence of attacks on direct democracy. In the aughts, for example, social conservatives, supportive of amendments limiting gay marriage, opposed barriers to state constitutional amendment, while civil rights groups supported such barriers.77
The discussion that follows provides an overview of recent attacks, organized around approaches that repeat across states: (1) changes to the requirements and timing for signature gathering; (2) changes to the preballot vetting and approval requirements; and (3) changes to the ultimate approval thresholds or requirements. We consider in Part III the appropriate legal analysis for these burdens. By way of preview, we do not argue that all regulation of the popular-initiative process is problematic—far from it. But the examples in this Part show a concerning trend of legislatures trying to stamp out the initiative.
One way that state legislatures are attacking the initiative process is by adding new, nearly insurmountable prerequisites. For example, in Arkansas, where voters have recently used the constitutional and statutory initiative processes to legalize medical marijuana and raise the minimum wage, respectively,78 the legislature has tried twice to amend the constitution to make the popular-initiative process much more onerous. The first amendment, in 2020, would have required signatures from fifty of the state’s seventy-five counties, rather than the constitutionally specified fifteen counties.79 Voters rejected the amendment. The legislature has recently taken a more brazen approach, passing a statute imposing the steeply increased fifty-county requirement that voters rejected,80 even as Democrats (and now litigants) have questioned its constitutionality.81
Other states have also dramatically increased signature requirements. Florida, for example, passed legislation in 2020 that raises the threshold of signatures for a petition to advance through Florida’s mandatory judicial-review process from ten percent of voters in one-third of Florida congressional districts to twenty-five percent of voters in half of its districts, while also raising the amount that proponents must reimburse counties for signature verification.82 The Michigan legislature likewise passed a 2018 law that limited the percent of signatures that could be gathered from any single congressional district,83 a change that would have made the process more complex and costly.84
In several other states, the constitutional text already establishes precise signature requirements, so a legislature seeking to increase the requirements must refer potential constitutional amendments to voters. And they have tried. In Arizona,85 Colorado,86 Missouri,87 North Dakota,88 Ohio,89 and Oklahoma,90 legislatures have recently proposed signature increases by constitutional amendment. Although changing amendment rules by amendment raises different legal considerations (especially when voters approve the amendments),91 the apparent legislative determination to limit democratic rights marks a concerning departure from past eras that focused on broadening amendment rights.92
Other state legislatures are pursuing death by a thousand cuts. Rather than burden the process with one significant obstacle, these laws add discrete requirements to the initiative process that may confuse, delay, and drive up the price.93 Arizona’s burdensome precirculation registration requirements are illustrative.94 Beginning in 2014, the law has required circulators to register with the secretary of state before they can circulate a petition or else the state will invalidate their collected signatures.95 Additional provisions streamline the process for subpoenaing a circulator, and failing to comply with a subpoena similarly forfeits all signatures. The public, too, can challenge a circulator’s paperwork, and the legislature has lengthened the time period for such challenges.96 The legislature has also extended the time period for the secretary’s review of registration paperwork,97 adding a delay for initiative proponents. Other additions to the law require that each petition circulated by an out-of-state or paid circulator include a notarized affidavit signed by the circulator and that each page of each petition circulated by an out-of-state or paid circulator feature that circulator’s registration number on the petition.98 Arizona has also enacted a strict-compliance standard of review indicating that the statutory requirements for the process must be strictly construed.99
Similarly, South Dakota has layered requirements that border on the absurd, entailing not only paperwork and filing requirements but also printing and font-size requirements that require proponents to carry petitions resembling large beach towels.100 Beginning in 2018, lawmakers began a multiyear effort to add requirements including a new registry and disclosure system for petition circulators that required them to wear badges and publicly disclose their personal contact information.101 So far, federal judges have enjoined these additional burdens as insufficiently tailored to state interests,102 but the legislature seems intent on continuing to find ways to discourage initiative proponents. For instance, a state law recently converted missteps in the petition-circulation process from misdemeanors to felonies.103
Other states have adopted complex processes for reviewing ballot petitions before and after signatures are gathered.
Montana provides a leading example. Thanks to statutes passed in 2021 and 2023, Montana goes beyond onerous signature-collection requirements like those discussed above.104 It also imposes an extensive substantive approval process,105 under which multiple state actors must review a proposed popular initiative prior to signature gathering. Both the executive and legislative branches play a role. The legislative services division must review the proposed initiative and ballot statements for “clarity, consistency, and conformity with [the legislature’s drafting manual],” as well as “any other factors that the staff considers when drafting proposed legislation.”106 Proponents then transmit their proposal to the secretary of state, who reviews it to ensure compliance with the legislative services division’s recommendations, and then transmits complaint proposals to the budget director and attorney general.107 The budget director must then determine whether a fiscal note is required and prepare one if necessary.108 The attorney general reviews a proposal for several criteria, including “substantive legality,” and may reject a proposal that he deems legally insufficient.109 The attorney general’s review may shape the trajectory even of petitions he does not reject. For instance, if the attorney general so designates, a petition must bear the text: “WARNING: The Attorney General of Montana has determined the proposed ballot issue will likely cause significant material harm to one or more business interests in Montana.”110 After review by the attorney general, a proposed petition goes back to the secretary of state, who must review the attorney general’s opinion and pass along proposals deemed “legally sufficient” to the relevant legislative committee, which then must take and report back a nonbinding vote on whether it supports the proposal.111 Any of these numerous veto points or delays might derail an initiative.
Oklahoma, another state with an onerous state review process, shows how state officials’ review can thwart an initiative campaign. Going into 2020, state law already established a difficult path for initiative proponents: Oklahoma has one of the country’s shorter signature-gathering periods, at just ninety days,112 and provides two guaranteed opportunities for preballot judicial review of popular initiatives (but not legislatively referred amendments).113 Organizers have nonetheless navigated the process in the past decade, teeing up measures establishing a state lottery benefiting education, expanding Medicaid, and legalizing medical marijuana. In turn, legislators have repeatedly sought to limit the initiative process.114 The most draconian of these measures have failed.115 In 2020, one seemingly modest adjustment passed: The state modified its signature requirement to require verification rather than plain tabulation,116 a task it then delegated to a company owned by the lobbyist who advocated for the legislation.117
In a process with narrow margins for success, the additional delay added by the new signature-verification process—paired with the discretion of state officials—kept a marijuana-legalization measure off the 2022 general-election ballot. Proponents filed their petition on the first business day in January, were permitted to begin signature collection in May, and submitted their signatures in early July, well before both the statutory deadline for mailing ballots and the deadline informally requested by the Election Board for ease of printing ballots.118 But the contractor’s inaugural signature-verification experience encountered staffing and software problems and took nearly seven weeks instead of the traditional two to three weeks; the software generated “wildly inaccurate” text, requiring manual work by the contractor’s “four employees―who happen to be [the lobbyist’s] family members.”119 The Board and Secretary of State did eventually verify the requisite number of signatures, but the Election Board deemed the matter too late.120 The Oklahoma Supreme Court held that because rehearing was still available for protests resolved in the mandatory protest period, the state had no mandatory duty to certify the measure for the November ballot.121 That paved the way for the governor to certify the measure for a low-turnout special election rather than the general election the proponents had sought.122 Only twenty percent of eligible voters turned out for the election, one of three separate elections in the spring of 2023, and the measure failed.123
At the time of writing, most states—sixteen out of eighteen—require a simple majority vote for popular initiatives.124 Recently, some states have attempted to increase the approval threshold required for passage of an amendment. Although it is not clear that state constitutions do or ought to cement a particular percentage for an amendment’s passage, recent efforts evince hostility to constitutional amendment or specific amendments rather than attempts to ensure popular engagement.
Unlike signature, timing, and approval requirements that have been adopted by legislatures without the people’s direct involvement, a change to approval thresholds requires constitutional amendment and thus involves legislative proposals that would be put before the voters before becoming law. Although burdens on the initiative that are ratified by voters demand analysis that lies beyond the scope of this Essay,125 we focus here on legislative manipulation of this process to alter approval thresholds.
A prominent recent example comes from Ohio. There, proponents of a potential initiative that would protect abortion rights were confident, based on polling, that their measure would pass the required majority threshold for approval.126 In turn, the legislature proposed an amendment that would raise the threshold to sixty percent (though only a fifty percent vote would be required for the change).127 The legislature also manipulated the timing of the vote: In January 2023, the legislature had eliminated most August special elections due to cost and efficiency concerns,128 but it called for its new supermajority requirement to be voted upon in an August special election prior to the November election on the abortion measure. After on-the-ground organizing closely linked the proposed supermajority requirement to the upcoming abortion initiative, turnout in the state was unprecedented for an August election and the measure failed, leaving the fifty percent threshold in place.129
Ohio legislators have not been alone in seeking—but, as yet, failing—to impose across-the-board supermajority requirements in recent years. After Arkansas’s 2020 effort to burden the signature process failed, in 2021, it proposed increasing the approval threshold for initiatives to sixty percent.130 Voters rejected the measure.131 Oklahoma and South Dakota have likewise proposed across-the-board supermajority requirements, only to see them rejected by voters.132
In Missouri, obstructing the initiative process has been a stated priority for Republicans for several years, fueled by voter circumvention of the legislature on issues like marijuana legalization.133 In its 2022 session, the state legislature “debated nearly 20 different bills” that would have impeded popular initiatives,134 and the legislature’s perceived urgency has only increased with an abortion initiative on the horizon. Most recently, legislators proposed a supermajority approval threshold.135 Notwithstanding requirements that the language of ballot measures not be misleading, the supermajority proposal was going to “be described on the ballot only as a measure to require voters to be properly registered U.S. citizens and Missouri residents”—something existing law already requires.136 Intraparty disagreements prevented passage of the new initiative burdens in 2023, but the Senate President has stated that this simply “puts more pressure on us next year.”137
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These are not the only ways state legislatures have recently attempted to burden the ballot-initiative process. We also do not include in this Essay the many examples of legislatures dragging their feet to implement initiatives after they have been enacted.138 Still, these recent developments underscore an important development in state regulation of the ballot-initiative process: Whereas state legislatures once sought to make initiatives more available, the present political landscape is defined by burdensome measures that have the intent or practical effect of thwarting specific initiatives or the process in general.
Recognizing the people’s right to amend state constitutions underscores that the legislative measures canvassed in Part II are not simply political machinations but also potential constitutional violations. Although a line of federal case law imposes a First Amendment limit on ballot-initiative burdens, this approach captures only a particular set of harms trained on individual expression,139 and the Supreme Court has recently signaled skepticism that “neutral, procedural regulation[s]” present a First Amendment question at all.140 The Federal Constitution does not track the state constitutional right to amend or provide redress for the distinctive harm that burdens on the ballot-initiative process impose on the people of a state.
Once we see that ballot-initiative burdens implicate state constitutional rights, new frameworks come into view. Democratic proportionality review, we argue, can help courts, attorneys general, and others responsible for implementing state constitutions better protect the people’s right to amend their founding documents.141 To some extent, state courts have already recognized the need to look closely at burdens on the popular-initiative process.142 Most popular-initiative states have, through case law, constitutional text, or both, a legal standard that seeks to distinguish appropriate regulation of the initiative right from impermissible subversion.143 Michigan, for example, prohibits “undue burdens” on the initiative right;144 Nevada recognizes that the legislature may “facilitate,” but not “unreasonably inhibit” the initiative;145 and the Arkansas Constitution itself provides that “no legislation shall be enacted to restrict, hamper, or impair the exercise of” the amendment right.146 These legal standards demand not only greater usage but also conceptual refinement, and democratic proportionality review can help judges draw lines and weigh competing interests.
At the outset, we emphasize again that laws regulating the initiative process are not inherently problematic. Democratic proportionality review allows us to distinguish constitutionally deficient burdens from regulations that comport with, or even enhance, the state constitutional commitment to democracy. This Part first addresses how democratic proportionality review conceptualizes constitutional rights and power and then discusses how such review would apply to recent developments.
Democratic proportionality review protects state constitutional rights while honoring the democratic imperatives of state constitutions. In separate work, we have offered a description and defense of this approach to adjudicating state constitutional rights.147 In lieu of recapitulating that work here, we highlight two salient ways in which democratic proportionality reorients thinking about rights and power away from familiar federal adjudicative models.
First, democratic proportionality review requires thorough engagement with state constitutional rights. Recognizing the abundance and complexity of such rights, democratic proportionality review calls for a holistic interpretation of state constitutions. And recognizing the privileging of popular sovereignty, including its advancement through rights provisions, democratic proportionality review calls for special solicitude for those rights that undergird democratic self-governance. The constitutional initiative is just such a core “self-determination” right that has special status.148
Even in states that lack the initiative and contemplate popular decision-making with respect only to legislatively referred amendments, the people’s role is described in several layered, and foundational, provisions of the state constitution. As the Kansas Supreme Court has recognized, for example, the right to vote on proposed amendments follows from both “[t]he right to vote . . . [, which] is pervasive of other basic civil and political rights, and is the bed-rock of our free political system” and “the right of every elector to vote on amendments to our Constitution . . . [, which is a right] of sovereignty.”149 Additional democratic rights, including express commitments to popular sovereignty and to alter and abolish government, enhance the right to amend.150 Across the country, the right to amend warrants special weight in state constitutional orders committed to popular majority rule.
The second relevant precept of democratic proportionality review is a complement to the first, focused on power more than rights: Decision makers must distinguish the legislature from the people themselves and carefully review the work of the people’s representatives. As they foreground popular sovereignty, state constitutions insist that legislatures are not the only or best voice of the people.
Again, this requires us to revisit assumptions from federal public law. Given the extreme limits on constitutional amendment, the nonrepresentative character of most other government actors, and the absence of direct democracy, Congress does most closely approximate the people in federal governance, a point that rightly informs federal judicial review and much else.151 But state constitutions emphasize shortcomings of legislative representation and ensure channels for less mediated popular self-governance, including constitutional amendment.152 When we analyze state legislative power and limits, judicial review, and other central constitutional questions, we must always bear in mind the distinction between the people and their representatives. Among other things, this means that state legislatures should not receive the same deference Congress receives under rational-basis review153 and that courts and other constitutional expositors should privilege direct expressions of the popular will.
To evaluate laws regulating constitutional amendment, then, state courts cannot assume a rational-basis-like posture of deference to the legislature. Instead, they must differentiate the people from their representatives and determine whether the legislature is in fact acting reasonably and noninvidiously. We turn now to the more specific questions courts should ask as they conduct democratic proportionality review in the context of state constitutional amendment.
In brief, democratic proportionality review requires courts to (1) ascertain the right(s) at stake; (2) determine whether the government is pursuing a legitimate objective through appropriate means and whether it could have adopted a less rights-impairing approach; and, if necessary, (3) balance the achievement of the government’s objectives against the harm to rights.154 Although at this level of generality the review is standard proportionality review, the “democratic” modifier informs each step. As we have suggested, for example, core democratic rights receive special consideration at the first step, while legislative decisions are not equated with the popular will at the second.
To illustrate, consider three distinct problems raised by the measures described in Part II. Each of these measures implicates the right to amend, a core right reinforced by overlapping constitutional provisions. That a right is at stake, even a particularly weighty right, does not conclude the analysis, but rather leads the inquiry to the infringing action, asking whether the government is pursuing an acceptable purpose and if its means are rational and minimally impair the right. In the case of laws burdening the right to amend, this government-focused inquiry is particularly important because legislative regulation of the amendment process is not inherently suspect; to the contrary, it is often necessary. State legislatures appropriately play a role in establishing and regulating amendment processes, even for popularly initiated petitions. For an amendment to reach the ballot and receive voter approval, a state must have procedures and ground rules in place. State legislatures generally establish those rules in the first instance, subject to constitutional limits.155 They may also adjust such rules and procedures as problems are discovered.156
At the same time, as the examples in Part II underscore, legislatures may attempt to undermine the amendment process. Indeed, initiated amendment practices were adopted largely to circumvent intransigent legislatures, so there has long been concern that legislatures will attempt to impede the process in self-serving ways.
To distinguish legitimate regulation from rights-infringing violations, reviewing courts should ask whether the legislature is pursuing an end other than undermining people’s ability to amend their constitution and, if there is a legitimate end, whether the legislature’s means of pursuing this end are appropriate or whether they could have been achieved with a lesser burden. In the examples that follow, as above, we focus on measures passed by the legislature, not voter-approved changes. But certain legislative referrals also implicate this framework. For example, when legislatures manipulate timing to ensure a particular electorate or inaccurately describe a proposed measure to mislead voters, these measures may amount to constitutional infractions.157
Start with a simple point: Seeking to undermine the constitutional initiative is not a legitimate government objective.158 Under democratic proportionality review, a court must always ascertain whether the legislature has a proper objective and some state legislators have been surprisingly candid about their goals.159 For example, although some proponents of Ohio’s approval-threshold change made pat arguments about protecting the state from out-of-state spending or reducing constitutional volatility, key legislative leaders acknowledged that their goal was to block the abortion amendment, not to improve the initiative process.160 After initially denying that making amendment harder was related to abortion, the Secretary of State likewise told supporters that the vote threshold change was “100%” about blocking the abortion amendment.161 In Missouri, too, there was no mistaking the legislature’s intent to thwart a popular abortion amendment: House Speaker Dean Plocher argued that an abortion amendment would “[a]bsolutely” pass without changes to the initiative process,162 and that “[i]f the Senate fails to take action on IP [initiative petition] reform, . . . the Senate should be held accountable for allowing abortion to return to Missouri.”163
Other states’ legislators also have been candid about their desire to undermine the initiative process. In South Dakota, legislative leaders have ratcheted up burdens on the initiative process as they have openly lamented its use,164 and they have made clear that burdening the initiative process is a way to block or preempt measures, like Medicaid expansion, that the GOP leadership disfavors.165 In Arizona, a petition-registration law included legislative findings lamenting that a prior initiative had protected popular initiatives from legislative amendment.166 Once the legislature could no longer undo enacted initiatives, it instead chose to try to stop their enactment in the first place.
Such express intent to thwart direct democracy is a red flag in any constitutional analysis. It is one thing to regulate the ballot-initiative process to limit fraud or improve efficiency.167 It is quite another for legislators to act with invidious intent to limit the people’s ability to amend the state constitution. The latter implicates a state constitutional right without a legitimate objective, let alone the requisite tailoring and balance.
In many cases, legislators do not articulate an intent to defeat the popular initiative when introducing new burdens. In these cases, democratic proportionality calls for an inquiry into the fit between means and ends, “asking whether the government is pursuing an acceptable purpose and if its means are rational and minimally impair the right.”168 To the extent legislators invoke facially legitimate purposes for new popular-initiative burdens (such as ensuring a representative process or avoiding fraud), a lack of fit between these objectives and the burden on the right to amend may prove fatal.
Many states’ dramatic increases for required signatures,169 for example, substantially burden the initiative without serving legitimate goals, much less minimally impairing the right. A recent decision from the Idaho Supreme Court recognized this problem. In Reclaim Idaho v. Denney, the court considered a law requiring signatures from all of the state’s thirty-five legislative districts and questioned the constitutional legitimacy of the legislature’s two defenses: requiring initiatives to have a “modicum of statewide support” to qualify for the ballot and avoiding “cluttered” ballots.170 The court held that neither justification comports with the right to amend: The Idaho Constitution gives the amendment right to “the majority of the people,” not to particular districts or geographic areas.171 Similarly, the supposed problem of ballot “clutter” was not “a sufficient reason to limit fundamental rights.”172 Even if either of these counted as a legitimate reason, as other states might find, Idaho’s decision establishes a contextually grounded way to ascertain minimal impairment. Idaho has historically had few initiatives qualify for the ballot, demonstrating the absence of a clutter problem. And, the court observed, even if statewide support were relevant, the legislature identified no logical reason that support in every district was required.173
Laws that would tend to put the popular initiative out of reach, either alone or cumulatively, may likewise fail to establish the requisite means-ends fit even when the legislature articulates a legitimate objective. Montana’s recent suite of laws has been challenged on that basis, with plaintiffs arguing that the series of burdens “effectively denies the people of Montana their reserved power to enact laws using the initiative and/or referendum process.”174
If, however, the legislature does have a legitimate purpose, regulation of popular amendment may in fact be warranted. In the First Amendment context, for example, federal courts have distinguished between state laws that require name badges and public disclosure of all of a petition circulator’s personal information during the collection phase, which may invite harassment, and state laws that require submission of an affidavit (including personal information) at the time circulators submit their signed petitions to allow the state to contact circulators if needed.175 State courts, likewise, can properly identify procedures designed to inform the public, such as a required fiscal-impact summary for measures affecting taxes.176 Nor is there anything inherently suspect in Oklahoma’s decision to verify rather than merely tabulate signatures—though its particular aggregation of delays might create unacceptable obstruction as applied.177 In short, noninvidious regulation can survive review if the burdens on the right are not disproportionate to the benefits of the regulation. Although the inquiry may prove demanding, state courts are well-suited to conduct it and to defend the democratic commitments of state constitutions.178
Another constitutional problem with many new burdens is that they single out popular initiatives for disparate burdens: They impose new restrictions on constitutional amendments proposed by the people, but do not impose those restrictions on legislatively referred constitutional amendments (LRAs) or other statewide campaigns. Yet these processes—the popular initiative, the LRA, and candidate campaigns to appear on statewide ballots—are similar in important respects; each implicates a state’s desire to vet a proposal or candidate seeking to appear on the statewide ballot. Across all three of these processes, a state understandably may wish to have ballots that are accurate rather than misleading, uncluttered and readable, and free of unserious issues or candidates. The fact that the popular initiative alone faces roadblocks in many states suggests that even if the legislature has a legitimate objective, it is not using appropriate or minimally rights-impairing means to achieve it.
Consider ballot wording requirements. Both popular initiatives and LRAs require clear language that voters can understand. Yet the amped-up vetting processes to review ballot language for clarity and constitutionality—like Montana’s attorney-general review179 and Florida’s preballot judicial-review process180—are typically imposed only on popular initiatives, not their legislatively referred counterparts. In some cases, these requirements were never imposed on LRAs; in others, the LRA review processes have been rolled back. In the 1990s, for example, the Oklahoma legislature amended its laws to exempt its own ballot language from statutory requirements regarding word limits and simplicity.181 And only the wording of Oklahoma’s popular initiatives, not the wording of its LRAs, is subject to state-supreme-court review.182
A host of other changes likewise disfavor popular initiatives. For example, some state laws have set disparately strict deadlines for initiative petitions. In Nebraska, only popular initiatives, not LRAs, must comply with a four-month filing deadline.183 In North Dakota, only popular initiatives must be submitted by a specific pre-election deadline.184
Additional disparities accompany the processes of certification for the ballot and approval by voters. Some states, like Colorado, require fiscal-impact statements for popular initiatives but not for LRAs.185 Arizona imposes its strict-compliance standard of review only for popular initiatives, not other statewide ballot campaigns,186 and allows electronic signatures for statewide and legislative candidates’ petitions but does not have a similar provision for initiative petitions.187 Finally, proposals like Missouri’s would raise the approval threshold only for popular initiatives, and not for LRAs.188
To be sure, there may be some disparate burdens on popular initiatives that are justified. To the extent a signature collection process for ballot proposals (and statewide candidates) is a proxy for statewide support, a state may reasonably conclude that any LRA that clears the legislature already demonstrates such support. But the supercharged burdens on the initiative process described in this Essay—those that put it out of reach in terms of dollars, time, or both—create a veto point for popular initiatives that LRAs do not face and suggest that the legislature is not employing appropriate constitutional means.
The right to amend is a defining part of state constitutions. It is also under attack. In this Essay, we have attempted to elaborate the nature of the right, canvas current threats, and identify a framework for adjudication.
Attending to the right to amend generates several observations about state constitutional law that defy conventional federal wisdom and warrant further exploration. State constitutions intermingle structure and rights, establish the people as simultaneous repositories of rights and powers, and complicate assumed distinctions between majority rule and minority rights.
As they cast the people as power-wielders and rights-holders, as sovereigns and as subjects, and as a collective that may act to protect its members against oppressive government, state constitutions suggest new possibilities for reformers heeding Justice Brennan’s call. For such reformers, and others seeking new pathways in constitutional law, the right to amend is a good place to start.
Jessica Bulman-Pozen, Betts Professor of Law, Columbia Law School.
Miriam Seifter, Professor of Law and Rowe Faculty Fellow in Regulatory Law, University of Wisconsin Law School.
For helpful comments and conversation, we thank Allie Boldt, Derek Clinger, Andy Coan, Anuj Desai, David Pozen, Jane Schacter, Anthony Schutz, Robert Yablon, and participants in the Stanford Law School seminar on Direct Democracy and a faculty workshop at the Oklahoma City University School of Law. We are also grateful to Hannah Gruen, Sadie Murray, and Jacob Neeley for excellent research assistance, to the editors of the Yale Law Journal for valuable insights and editorial work, and to the Abraham M. Buchman Fellowship for Administrative Law at Columbia Law School for support.