Amending a state constitution requires voter approval, except in Delaware. There are various ways a constitutional amendment can reach the ballot for voter consideration.
States have different rules and procedures for how legislatures can place constitutional amendments on the ballot. There are two main differences for legislative actions: (a) the number of legislative sessions that a legislature must vote on a constitutional amendment; (b) the size of the affirmative vote in each legislative chamber, such as a simple majority, 60%, or two-thirds.
Most states (36 of 49) require legislatures to approve the amendments during one legislative session. However, in 13 states, an amendment must pass in two consecutive legislative sessions before appearing on the ballot in at least some cases.
Elections occur between these legislative sessions. When there is a change in legislative party control between legislative sessions, 81% of the amendments approved during the first session failed during the second session.
In 2022, Ballotpedia reported on Pennsylvania’s shift from a Republican-controlled legislature to a divided one and what that meant for proposed constitutional amendments. We wrote that “One of the downstream effects of the chamber changing party control is that it could stop a number of legislatively referred constitutional amendments from reaching the ballot.” With the 2023-2024 legislative session adjourning on Nov. 13, 2024, that is what happened.
During the 2021-2022 legislative session, the Republican-controlled legislature approved six constitutional amendments addressing abortion, voter ID, civil lawsuits, election audits, the lieutenant governor, and the legislature’s authority to disapprove regulations.
None of the six constitutional amendments made it to the ballot. Several were primarily backed by Republicans but did not receive floor votes in the Democratic-controlled House during the 2023-2024 session. One amendment addressing civil suits related to childhood sexual abuse had bipartisan support. However, it failed during the second session as legislative Republicans sought to pass multiple amendments in a single resolution, and Democrats sought to pass a resolution containing the one amendment.
With the 2024 election, the Pennsylvania State Legislature will continue to be divided, with a Republican-controlled Senate and a Democratic-controlled House.
Between the 2010 and 2024 legislative sessions, 132 constitutional amendments were approved during one legislative session in the states with two-session vote requirements. However, 47 of these constitutional amendments (36%) failed during the second legislative session.
When there was a change in party control of the legislature between legislative sessions, 81% (17 of 21) of the constitutional amendments approved during the first session failed, and 19% (4 of 21) passed during the second session.
At the election on Nov. 5, 2024, none of the legislative chambers in these 13 states changed control. When chambers did not change political party control, 27% of amendments failed during the second session. The following constitutional amendments could appear on the ballot in states requiring two-session votes in 2025 or 2026:
- Indiana: Two constitutional amendments were passed last session. The first, which received unanimous bipartisan support, would require city and town court judges to reside either in the county where the court is located or in the nearest bordering county. The second, which divided Democrats, would allow the denial of bail if the accused poses a substantial risk to others or the community, provided the evidence is clear or the presumption is strong.
- Iowa: Two constitutional amendments were passed along party lines, with Republicans in support and Democrats opposed. The first would require a two-thirds vote in both chambers of the state legislature to approve any increase in the individual or corporate income tax rate. The second would prohibit a graduated state income tax.
- Nevada: The legislature approved three amendments last session. The first would establish a right to reproductive freedom, the second would join Nevada in the National Popular Vote Interstate Compact, and the third would permit statewide lotteries. Each amendment faced opposition from a majority of Republicans.
- New York: The legislature approved an amendment regarding the Mount Van Hoevenberg Olympic Sports Complex within Adirondack Forest Preserve land.
- Tennessee: The legislature approved three constitutional amendments last session. One would prohibit state taxes on real property. The second would enact a Marsy’s Law, a type of constitutional bill of rights for crime victims. The third would expand the list of crimes for which bail can be denied when proof is evident or the presumption great.
- Vermont: The legislature approved two constitutional amendments, with support from Democrats and a majority of Republicans. One would provide for a state constitutional right to form a union and collectively bargain. The second would prohibit the government from denying equal treatment because of a person’s race, ethnicity, sex, religion, disability, sexual orientation, gender identity, gender expression, or national origin.
- Wisconsin: Voters could decide on four constitutional amendments in 2025 or 2026. All four were approved along party lines, with Republicans in support. The first would require photo voter ID. The second would prevent political subdivisions from closing or restricting gatherings at places of worship during a state of emergency. The third would prohibit government entities from discriminating against or giving preferential treatment based on race, sex, color, ethnicity, or national origin in public employment, education, contracting, or administration. The fourth would prohibit the governor from using a partial veto to increase a tax or fee.
Measures could also appear on the ballot in Virginia. Unlike the other states, except New Jersey, Virginia elects legislators during odd-numbered years. Therefore, any amendments passed during the 2024-2025 session must pass again in 2026 to appear on the ballot. None have been passed yet, but Democrats, who control the legislature, have introduced several constitutional amendments on abortion, same-sex marriage, and voting. For these amendments to appear on the ballot in 2026, Virginia Democrats would likely need to maintain control of both legislative chambers.
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