Amending the constitution: Easier in Minnesota?

Minnesota State Capitol
The Capitol was illuminated with light Thursday, May 13, 2010.
MPR Photo/Jeffrey Thompson

With one party controlling both houses at the Legislature for the next two years, the two dozen constitutional amendments circulating at the State Capitol have a better chance of reaching voters.

It takes just a simple majority in both the House and Senate to send a constitutional amendment to the ballot — a lower legislative threshold than in most other states, where amendments are sent to voters only with a three-fifths or two-thirds vote, or a majority in two different legislative sessions.

But the question of whether it's easier to amend Minnesota's constitution than in other states isn't simple to answer. In practice, it depends on other rules or a state's political traditions.

LAWMAKING THROUGH CONSTITUTION

Republicans control both the House and Senate but clash with Democratic Gov. Mark Dayton on many issues. Passing constitutional amendments can be a way to bypass the governor, because no governor's signature is needed to place a constitutional question on the ballot.

For example, a constitutional amendment proposed this year — whether to require voters to show photo ID at the polls — could be addressed through the normal bill process. But those pushing the proposal said they are pursuing the amendment option in case Dayton vetoes the bill.

See a list of the constitutional amendments proposed so far this year here.

Some are concerned about the effect those types of attempts have on the state's constitution.

"I think it's a rather risky strategy because the constitution should not be tampered with willy-nilly," said Roger Moe, who served as DFL Senate Majority Leader for 22 years. During that time, Moe oversaw the committee that hears constitutional amendments.

Moe said the Legislature needs to be selective about constitutional amendments, sending voters only what can't be accomplished through state law. "I think that would be a better process," Moe told MPR's All Things Considered this week.

Moe said the number of constitutional amendments being proposed this year is "extraordinary."

But history has shown that the Minnesota Legislature has exercised some restraint in sending constitutional amendments to voters, especially in recent years. In the past 20 years, 10 amendments have been brought before voters, according to the Minnesota Legislative Reference Library.

You can find the Minnesota Legislative Reference Library's list of all the constitutional amendments considered in Minnesota here.

Some of the issues, such as authorizing a bonus for Persian Gulf War veterans in 1996 and increasing the state sales tax to protect natural resources and cultural heritage in 2008 could have been handled through the normal legislative process. Others, such as abolishing the office of state treasurer, could only be accomplished by amending the constitution.

EASIER PROCESS, BUT IN PRACTICE?

While the Minnesota Legislature's threshold for passing an amendment is lower than in many states, Minnesota doesn't allow citizens to bring forward constitutional amendments through a petition process. In some states, like California and Colorado, that option has allowed citizens to bypass lawmakers to make changes, including banning same-sex marriage.

But even in other states like Minnesota where citizen initiatives aren't allowed, the frequency of constitutional amendments can vary widely. For example, the Alabama Constitution has been amended nearly 800 times despite a requirement for ballot measures to receive a three-fifths vote in the Legislature. In Minnesota, it's happened 119 times.

Alan Tarr, director of the Center for State Constitutional Studies at Rutgers University, said variations among states can be a result of different political cultures and the fact that the federal government can't regulate states' constitutions.

"This is a matter for the states exclusively. Each state has its own system," Tarr said.

While some states have tinkered with their amending processes, there have been no overall trends toward making it harder or easier, and any debate on the matter usually comes down to politics, he said.

"There's a lot of discussion about, is it too easy to amend the constitution, is it too hard to amend the constitution? Usually, however, those who are making these arguments are really sort of stalking horses for 'we don't like the amendments that are being adopted,'" Tarr said. "They argue process but what they're really talking about is outcomes."

The last attempt to change Minnesota's process happened in 2009, when Sen. Tom Bakk, DFL-Cook, proposed a bill requiring a three-fifths majority in the Legislature before putting a constitutional amendment on the ballot. The proposal died in committee.

FROM PROPOSAL TO PASSAGE

Minnesota is among eight states that require just a simple majority in the Legislature to put a constitutional amendment on the ballot.

But an additional rule established in 1898 makes it harder for the amendment to be ratified by voters in Minnesota: A majority of overall voters casting ballots in the election must vote in favor of the amendment, not just those voting on the amendment. Every time a constitutional amendment is on the ballot, thousands of voters skip the question.

The rule has caused amendments to fail 62 times, and the state's amendment passage rate has dropped from 70 percent to 50 percent since the rule took effect. In the last 20 years however, Minnesota voters have ratified nine out of 10 of the amendments before them.

Nationwide, the passage rate for constitutional amendments initiated through legislatures has been about 75 percent in the last decade, said Brenda Erickson, a researcher for the National Conference of State Legislatures.

That type of amendment has a better chance of receiving voter approval than one brought by a citizen petition in the states that allow it, she said.

"I think it's because it has gone through the whole legislative process: It's been voted on and heard in committees," she said. "There's more vetting of those proposals."

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