Tagconstitutional amendment

South Dakota state House advances constitutional amendment requiring three-fifths approval for measures increasing taxes, fees or appropriating more than $10 million

The South Dakota House of Representatives approved House Joint Resolution 5003 on February 16 in a vote of 56-12.

The measure would amend the state constitution to require a three-fifths (60%) vote for approval of any ballot measures (whether citizen-initiated or legislatively referred) that imposes or increases taxes or fees or appropriates $10 million or more in any of the first five fiscal years after enactment.

South Dakota residents may initiate legislation as either a state statute or a constitutional amendment. The South Dakota State Legislature may place measures on the ballot as legislatively referred constitutional amendments or legislatively referred state statutes with a simple majority vote of each chamber. As of 2021, all ballot measures in South Dakota required a simple majority vote (50%+1) to be adopted.

HJR 5003 was introduced into the South Dakota House of Representatives by Republican Speaker Pro Tempore Jon Hansen on February 2, 2021. All eight House Democrats voted against the bill. Of 62 House Republicans, 56 voted in favor, four voted against, and two were excused. To be placed on the 2022 ballot, the amendment must receive 18 affirmative votes in the South Dakota State Senate, in which Republicans hold a 32-3 supermajority. To become a part of the state constitution, a simple majority of voters must approve the change.

The South Dakota State Senate has passed three other bills this month concerning citizen initiative requirements:

  • Senate Bill 77, which was designed to require initiative petitions to print the full text in 14-point font;
  • Senate Bill 86, which was designed to require the South Dakota Secretary of State and Attorney General to issue an opinion to sponsors of initiative constitutional amendments concerning whether or not the amendment comprises a single subject and whether or not the proposed change is considered a constitutional amendment or a revision of the state constitution; and
  • Senate Bill 123, which was designed to create a 10-day comment period for ballot language of citizen initiatives, requiring the attorney general to review all comments and amend the ballot language as deemed necessary.

These bills would take effect if approved in the state House, where Republicans hold a 62-8 supermajority and do not require voter approval.

Republican sponsors of the bills pointed to the legal challenges to Amendment A, a constitutional initiative approved by voters in 2020 to legalize marijuana, which was ruled unconstitutional by the Hughes County Circuit Court and appealed to the state supreme court.

Senator Reynold Nesiba, one of three Democratic Senators in South Dakota, said, “This is a systematic attack by the Republican party to stifle direct democracy in South Dakota.”

Vote requirements for ballot measures vary from state to state and based on different ballot measure types and topics.

As of 2021, South Dakota was one of 37 states that required a simple majority vote (50%+1) for a proposed constitutional amendment to be adopted. Below are some of the other requirements that ballot measures face across the country.

In Nevada, a simple majority vote is required for all constitutional amendments, however, initiated constitutional amendments must be approved by voters at two successive general elections.

Constitutional amendments in Colorado require a 55% supermajority vote for approval, except for amendments that repeal language and do not amend or add language, which require a simple majority. This supermajority requirement was adopted in 2016 through a citizen initiative.

Constitutional amendments in Florida (citizen-initiated and legislatively referred) must receive a supermajority vote of 60% of those voting on the question, according to Section 5 of Article XI. This change was made via a legislatively referred constitutional amendment in 2006.

In Illinois, legislatively referred constitutional amendments must receive a supermajority vote of 60% of those voting on the question or a majority of those who cast a ballot for any office in that election.

In New Hampshire, a proposed amendment must be approved by two-thirds (66.67%) of those voting in order to become part of the state’s constitution.

In seven other states, there are requirements based on turnout at the election or for a particular office, such as governor.

In Washington, a 60 percent supermajority vote for any measure concerning gambling. Utah requires a two-thirds (66.67%) supermajority vote for the approval of any initiatives concerning the taking of wildlife.

A total of 67 measures appeared on the statewide ballot in South Dakota during the 20-year from 2000 through 2020 in South Dakota, of which, 43% (29 of 67) were approved by voters and 57% (38 of 67) were defeated.

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New York voters to decide constitutional amendment about environmental rights in November

Voters in New York will decide a ballot measure to add a right to clean water, clean air, and a healthful environment to the New York Constitution’s Bill of Rights. The ballot measure would make New York the third state, after Pennsylvania and Montana, to adopt an environmental rights amendment. Pennsylvania and Montana both adopted their amendments in the 1970s.

In New York, a constitutional amendment requires approval in two successive legislation sessions to go on the ballot. Legislators approved the proposal in 2019 and 2021. On January 12, 2021, the state Senate voted 48 to 14 to approve the amendment. Senate Democrats supported the proposal, and Senate Republicans were divided 6 to 14. On February 8, the state Assembly voted 124 to 25, with support from all Democrats, 17 Republicans, and the chamber’s one Independence Party member.

The 15-word constitutional amendment reads: “Each person shall have a right to clean air and water, and a healthful environment.”

State Sen. Robert Jackson (D-31) sponsored the proposal in the Senate. He said, “This language will finally put in place safeguards that require the government to consider the environment and our relationship to the Earth in decision making. If the government fails in that responsibility, New Yorkers will finally have the right to take legal action for a clean environment because it will be in the State Constitution.”

State Sen. Dan Stec (R-45), who voted against the constitutional amendment, stated, “I’m all for clean air and clean water. Who isn’t? But in the face of ambiguity you will have distrust, you will have lawsuits, you will have costs, and I’m trying to avoid that.”

The election on November 2, 2021, could feature as many as six amendments to the New York Constitution. The Environmental Rights Amendment is the second approved for the ballot after legislators referred a redistricting measure on January 20, 2021. Since 1995, New Yorkers have approved 76.0% (19 of 25) of the constitutional amendments that have appeared on their ballots.

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Pennsylvania Commonwealth Court rules that 2019 Marsy’s Law ballot measure violated state constitution

Judge gavel on desk

On January 7, 2021, the Pennsylvania Commonwealth Court ruled that a ballot measure for Marsy’s Law, a type of crime victims’ rights amendment, violated the Pennsylvania Constitution. Pennsylvanians voted 74% to 26% in favor of Marsy’s Law at the election on November 5, 2019. Results were never certified, however, according to a court order.

The 3-2 appellate court decision stated that the proposal violated the separate-vote requirement for constitutional amendments. According to the Pennsylvania Constitution, “When two or more amendments shall be submitted they shall be voted upon separately.” Judge Ellen Ceisler (D) wrote the majority’s opinion, which ruled that Marsy’s Law would impact separate rights and provisions of the state constitution.

Judge Patricia McCullough (R), who agreed with the majority’s decision but wrote a separate opinion, stated that the measure contained “laudable and salutary provisions” but “simply embraces too many disparate matters to effectively convey its import to voters within the 75 words mandated by statute.”

Judge Mary Hannah Leavitt (R) dissented, stating that Marsy’s Law created constitutional rights for crime victims without changing existing provisions of the state constitution. Judge Leavitt wrote, “The judgment the court enters today deprives the people of this power on the strength of no more than speculation.”

Jennifer Riley, director of the organization Marsy’s Law for Pennsylvania, responded to the Commonwealth Court’s decision, saying, “We are prepared to continue advocating for victims and to bring an appeal to the Supreme Court to ensure that the votes of Pennsylvanians are counted and that the voices of the victims are protected.”

In Pennsylvania, constitutional amendments need to be passed by the state Legislature during two successive legislative sessions. In 2018, both chambers unanimously passed the amendment. In 2019, the state Senate unanimously passed the amendment, and 190 of 202 state representatives voted for it. Gov. Tom Wolf (D) supported the ballot measure, as did the Pennsylvania District Attorneys Association and U.S. Reps. Fred Keller (R) and Scott Perry (R).

Opponents included the ACLU of Pennsylvania, League of Women Voters of Pennsylvania, and Pennsylvania Association of Criminal Defense Lawyers. Marsy’s Law for Pennsylvania raised $6.65 million from the Marsy’s Law for All Foundation to campaign for the measure.

Marsy’s Law ballot measures faced similar lawsuits in state courts in Kentucky and Montana. The amendment was struck down in Montana for violating the state’s separate-vote requirement on constitutional amendments. In Kentucky, after it was struck down for reasons related to ballot language, the state Legislature placed it on the ballot again in 2020. The 2020 version, which was approved, included the full text of the measure on the ballot.

As of January 2021, 12 states had Marsy’s Law amendments. Voters in two additional states—Pennsylvania and Montana—voted in favor of Marsy’s Law amendments, but they were overturned or blocked. Henry Nicholas, the co-founder of Broadcom Corp., started campaigning for Marsy’s Law to increase the rights and privileges of victims in state constitutions. Marsy’s Law is named after Nicholas’ sister, Marsy Nicholas, who was murdered in 1983.

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Voters approved 62 constitutional amendments in 29 states in 2020

Every state but Delaware requires voters to ratify proposed changes to a state’s constitution.

There are four ways that proposed constitutional amendments can be proposed and put on the ballot:

  • Through legislatively referred constitutional amendments.
  • Through citizen-initiated constitutional amendments put on the ballot through signature petition drives. Eighteen states allow this method of amendment.
  • Through referral by constitutional conventions. In some states, automatic ballot referrals allow voters to decide at regular intervals whether or not to hold a convention.
  • In Florida, there is a commission-referred amendment process through the Constitution Revision Commission that meets every 20 years. It last met in 2018.

From 2006 through 2020 a total of 1,016 constitutional amendments were proposed and put before voters. This data only includes constitutional amendments put on the ballot for a statewide vote. It does not include certain state constitutional amendments that only apply to local jurisdictions and were voted on only by residents of particular local jurisdictions. It also does not include constitutional amendments in Delaware that weren’t subject to voter ratification. Of this total, voters approved 733 proposed changes to state constitutions.

In 2020, voters in 29 states decided a total of 84 constitutional amendments. Of the 84 proposed amendments, state legislatures referred 69 to the ballot, and signature petition drives were used to initiate the other 15. Of the 84 amendments, 62 (73.8%) were approved.

Since 2006, the even-numbered year with the most proposed amendments on the ballot was 2006 with 148, and the year with the least amount of proposals was 2020, which had 84 proposals. The average in even-numbered years since 2006 was 109.

Among states with a process for initiated constitutional amendments, Florida and Colorado featured the most proposed constitutional amendments on the ballot from 2006 through 2020, with a total of 56 and 52, respectively. Of that total, Florida voters approved 37, and Colorado voters approved 21. Among all 50 states, Louisiana featured the most proposed constitutional amendments and the most approved amendments.

States featured an average of 20 constitutional amendments on the ballot from 2006 through 2020. Across all states, an average of 15 amendments were approved. Statistically, from 2006 through 2020, off-year election cycles featured a higher approval rate for proposed constitutional amendments than even years. In 2007, 28 of the 31 proposed amendments were approved, for a rate of 90%. In 2013, amendments passed at a rate of 89%. In 2017, all 17 amendments on the ballot were approved, for the highest approval rate since 1947. In contrast, 2006 and 2020 had the highest approval rates of even-numbered years since 2006 at 74.5%and 73.8%, respectively.



More than $80 million raised by campaigns surrounding Illinois graduated tax amendment

There is one state constitutional amendment on the ballot in Illinois for November 3, 2020. The constitutional amendment would repeal the requirement that the state’s personal income tax is a flat rate across income. Instead, the amendment would allow for legislation to enact a graduated income tax. Contributions to the campaigns surrounding the amendment have topped $80 million.

Gov. J.B. Pritzker (D) advocated for a graduated income tax structure for Illinois during his 2018 gubernatorial campaign. One of his former staffers, Quentin Fulks, is chairing the campaign Vote Yes for Fairness to support the amendment. Through September 18, the campaign Vote Yes For Fairness, along with allied committees, had received $58.97 million. Gov. Pritzker provided the campaign with $56.5 million, or 96 percent of supporters’ total funds. Other top donors include the AARP ($664,680), Omidyar Network ($500,000), National Education Association ($350,000), and American Federation of Teachers ($250,000).

Opponents of the constitutional amendment have organized four PACs, and two of them have received funds through September 18—the Coalition to Stop the Proposed Tax Hike and the Say No to More Taxes. Between the PACs, opponents had received $21.65 million. Kenneth Griffin, CEO of the investment firm Citadel, contributed $20.00 million to the Coalition to Stop the Proposed Tax Hike. The Illinois Opportunity Project, a 501(c)(4) nonprofit organization, donated $550,000. Other top donors—who each gave $100,000—include Richard Uihlein, the Samuel Zell Revocable Trust, and MacNeil Automotive Products.

While the constitutional amendment itself would not adopt a graduated income tax, the Illinois State Legislature passed legislation to go into effect if voters approve the amendment. The legislation would change the state’s income tax from a flat rate to six graduated rates beginning on January 1, 2021. Currently, income is taxed at a flat rate of 4.95% in Illinois. Under the bill, the proposed tax rates would range from 4.75% to 7.99%.

At the election on November 3, the constitutional amendment needs to receive either (a) 60 percent of votes cast on the ballot measure itself or (b) a simple majority of all of those voting in the election. Since 1996, voters have approved 83 percent of the constitutional amendments put on the ballot by the legislature. The last amendment that was rejected would have required a three-fifths approval by the General Assembly, city councils, and school districts to increase the pension benefits of their employees.

The Illinois constitutional amendment is one of three income tax-related ballot measures in 2020. In Arizona, Proposition 208 would enact a 3.50% income tax, in addition to the existing income tax (4.50% in 2020), on income above $250,000 (single filing) or $500,000 (joint filing). Proposition 208 would distribute the revenue from the 3.50% income tax to teacher and classroom support staff salaries, retention programs, and career and technical education programs. In Colorado, Proposition 116 would decrease the state’s flat income tax rate from 4.63% to 4.55%.

Additional reading:
Illinois 2020 ballot measures
Ballot measure campaign finance, 2020