BOS 1992 -- Chapter 1, State...

CHAPTER ONE

STATE CONSTITUTIONS

STATE CONSTITUTIONS AND CONSTITUTIONAL REVISION, 1990-91

By Janice C. May

State constitutional developments in 1990-1991 were very similar to those of the preced-ing biennium and the 1980's. The use of for-mal amendment and revision processes to amend state charters continued to decline. Constitutional revision of a comprehensive or general scope was conspicuous by its absence. And, as was true in the preceding biennium, the popularity of the constitutional initiative as a method of initiating change was the one exception to the downward trend. Similarly, interest in state constitutional law by the legal profession and others remained evident, and literature on state constitutions continued to expand.

General Overview: Use of Authorized Methods

As Table A shows, constitutional changes by all methods were far fewer in 1990-1991 than in the preceding three biennia, and only 41 states were involved compared with 45 or 47. There were 226 proposals and 145 adop-tions, including two approved in Delaware by legislative action alone. Measured by bienni-um averages, this level of activity was the lowest in more than 20 years. In the 1980's, the

average number of propositions per bienni-um was 302.6 and in the 1970's, 415.8. The average number of adoptions per biennium in the 1980's was 218.2 and in the 1970's, 26l. Limiting the calculations to statewide propo-sitions (to eliminate the influence of local amendments, which fell sharply after 1980-81), the disparity between the current bienni-um and the average biennium of the past 20 years remains. As indicated by Table B, there were 195 statewide proposals and 121 adop-tions in 1990-1991, whereas the average per biennium in the 1980's was 237.4 and in the 1970's, 304. The number of statewide propos-al adoptions per biennium averaged 162.2 in the 1980's and 202.2 in the 1970's. Notably, the approval rate of propositions by all meth-ods fell from 74 percent in 1988-89 to 63 per-cent in 1990-199l.

In sharp contrast to the general trends, the use of constitutional initiatives increased sig-nificantly to 29 proposals in 1990-1991 com-pared with 21 in 1988-89, a record high for the decade. Measured by biennium averages, the number of constitutional initiative proposals

Janice C. May is an associate professor of govern-ment at The University of Texas at Austin.

Table A

State Constltutlonal Cbonges by Method of Inillation 1984-85. 1986-87, 1988·89 and 1990·91

Number of Total Total Percentage states involved proposals adopted adopted

1984 1986 1988 1990 1984 1986 1988 1990 1984 1986 1988 1990 1984 1986 1988 Method of installation ·85 ·87 ·89 ·91 ·85 ·87 ·89 ·91 ·85 ·87 ·89 ·91 ·85 ·87 ·89

All methods 45 47 45 41 238 275 267 226 158 204 199 145 65.5' 74.3' 74.0' Legislative proposal 45 46 45 41 211 243 246 197 144 191 i88 134 67.3' 77.7' 75.6' Constitutional initiative to 9 II to 17 18 21 29 8 5 lit Ii 47.1 27.7t 55.0t Constitutional convention I I to 14 6 8 60.0 57.1 Constitutional commission

... In calculating these percentages, the amendments adopted in Delaware (where proposals are not submitted to the voters) are excluded. t Excludes one Nevada constitutional initiative whose final adoption requires a second favorable vote.

2 The Book of the States 1992-93

1990 ·91

63.3' 67.0' 37.9

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for 1990-1991 was the highest in 60 years. (In the 1930's, the average per biennium was 26.6; 1940's, 12.6; 1950's, 9; 1960's, 12; 1970's, 13.8 and 1980's, 17.8). In 1990-1991, the number of constitutional initiatives adopted was 11, the same as in 1988-89. This figure also was higher than biennium averages during the past 60 years (9.4 per biennium in the 1930's; 5.6 in the 1940's; 3.2 in the 1960's; 4.2 in the 1970's; and 6.6 in the 1980's.) The approval rate for initiatives in 1990-1991 was a modest 38 percent, far less than the record 55 percent of the preceding biennium and more in line with other biennia.

Tables 1.2, 1.3, and 1.4 summarize the pro-cedures associated with the three major meth-ods used to initiate amendments and revisions to state constitutions: proposal by the state legislature, which is available in all states; con-stitutional initiative, provided for in 17 state constitutions; and the constitutional conven-tion, accepted as legal in all states although not expressly authorized in nine state consti-tutions. A fourth method used to initiate and refer proposed constitutional amendments to the electorate, the constitutional commission (expressly authorized only in Florida's consti-tution) was not the source of any changes in 1988-89 or 1990-1991 or at any time during the 1980's.

Legislative Proposal Legislative proposal, the most commonly

employed method for initiating constitutional amendments, accounted for 197 of the 226 proposals referred to the voters during the biennium. Of those 197,134 were adopted (in-cluding two Delaware propositions), and 132 were approved by the voters (excluding the Delaware propositions) for a 67 percent ap-proval rate. Legislative proposals represented 87.1 percent of the total proposals by all meth-ods in 1990-1991. In 1988-89, the proportion was higher (92 percent) because there were fewer constitutional initiatives on the ballot, the only other source of measures in both biennia.

Constitutional Initiative The constitutional initiative, which empow-

ers citizens by petition to propose amendments

directly to the electorate (except in Massachu-setts where the indirect form is used) is avail-able in one-third of the states. Appropriate only for making limited constitutional change, a lively constitutional issue in the current biennium, the method accounted for a record number of proposals and adoptions during 1990-1991. Constitutional initiatives repre-sented 12.8 percent of all proposals and 7.5 percent of adoptions - an unusually high proportion compared with other years.

The number of initiative proposals and adoptions by state during 1990-1991 were as follows: Arizona (3-1), Arkansas (0-0), Cali-fornia (11-4), Colorado (3-2), Florida (0- 0), Illinois (0-0), Massachusetts (0-0), Michigan (0-0), Missouri (0-0), Montana (1-0), Nebras-ka (2-0), Nevada (1-1), North Dakota (2-0), Ohio (1-0), Oklahoma (2-2), Oregon (3-1), and South Dakota (0-0). As the figures indi-cate, California was the most prolific user of the device with 11 proposals and four adoptions.

During the biennium, state courts played an important role in the initiative process. Two proposals were denied a spot on the bal-lot by Oklahoma's Supreme Court. The Cali-fornia high court ruled invalid the most sig-nificant new section of a proposition on crime victims rights while upholding the constitu-tionality of a term limits initiative. In addi-tion, the Mississippi Supreme Court refused to allow a lottery proposition to be placed on the ballot by an initiative petition in the case of State Ex Rei. Moore v. Molpus, 578 So.2d 624 Miss. 1991}. The initiative and referen-dum had been approved by the voters in 1914, but was struck down as unconstitutional in 1922. In the 1991 decision, the Mississippi high court refused to revive the process, bas-ing its reasoning on the rule of collateral es-toppel. Following the decision, the attorney general, secretary of state and other political leaders agreed to support a new initiative and referendum amendment. If the amendment is on the 1992 ballot and it is approved, Missis-sippi would become the 18th state to autho-rize the constitutional initiative. (For more information on developmeqts in Mississippi see The Book of the States 1990-91.)

The Council of State Governments 3

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Constitutional Conventions The constitutional convention is the oldest,

best known and most traditional method for extensively revising an old constitution or writ-ing a new one. As of Jan. 1, 1992,233 con-ventions, including the 1982 convention in the District of Columbia, had been held in the United States. As was true of the last bienni-um, none was convened in 1990-1991. [The ta-ble on state constitutional conventions, which usually appears in this book has been omit-ted from this edition since no conventions were held in the biennium.]

Fourteen state constitutions require a popu-lar vote periodically on the question of call-ing a convention (see Table 1.4). Nine states mandate one every 20 years; one state, every 16 years; four, every 10 years; and one, every 9 years. During 1990-1991, mandated conven-tion calls were placed on the ballots of three states - Iowa, where a vote is taken every 10 years; Maryland, every 20 years; and Mon-tana, also every 20 years. Voters defeated the referenda in all three states. Oklahoma's con-stitution requires a vote every 20 years, but the legislation necessary to place the referendum on the ballot did not clear the legislative proc-ess and no vote was taken. On three previous occasions, Oklahoma voters rejected the ref-erenda.

To prepare for an automatic referendum on a call in November 1992, a conference on "The Future of the Alaska's Constitution" was held in Anchorage, Nov. 15-16, 1991. Sponsored by the office of the lieutenant governor (required by the constitution to place the call on the ballot every 10 years), the University of Alaska, the Alaska Federation of Natives, Commonwealth North, and the League of Women Voters of Alaska, the con-ference was expected to be only one of sever-al related activities scheduled before the election.

Constitutional conventions could be on the public agenda in one or two states during the next biennium. Gov. Mario Cuomo of New York and Gov. Ned McWherter of Tennessee have indicated strong support for conventions as a means of resolving problems facing their respective states. In his January 1992 State of


the State message, Gov. Cuomo spoke high-ly of the convention method as a "tool" for resolving problems with the budget, the elec-tion process, civil rights, public health and other issues. Although proposals for a limited convention were considered by the Tennessee General Assembly during an early 1992 special session and regular session, Gov. McWherter was unsuccessful in obtaining legislation to place a convention call on the ballot.

Constitutional Commissions Constitutional commissions generally serve

two major purposes: to study the constitution and propose changes; and prepare for a consti-tutional convention. Commissions in Oklaho-ma, Utah and Florida were operative during the biennium.

As reported in The Book of the States 1990-91, then-Gov. Henry Bellman organized the Oklahoma Constitution Study Commission in October 1988 with the assistance of U.S. Sen. David Boren and then-Attorney General Robert Henry. In July 1989, the commission approved three articles as proposed amend-ments to the state Constitution: Two were sub-stantial revisions of the executive article and the corporations article and the third was a new article on an ethics commission. A con-stitutional initiative petition drive obtained the requisite number of signatures to certify the three measures for the ballot in 1990. But in response to a legal challenge to the proposi-tions' "form:' the Oklahoma Supreme Court struck the executive and corporations articles from the ballot (In re Initiative Petition No. 344, 797 P.2d 326 [Okla. 1990] and In re Ini-tiative Petition No. 342, 797 P.2d 331 [Okla. 1990]). The court held that in both cases the "single-subject rule" of the Oklahoma Con-stitution had been violated. Under this rule, a proposed amendment must be limited to one general subject. The court said the execu-tive article covered at least 26 separate ques-tions and the corporations article, 11. The ballot language, moreover, was not written in a manner alerting the voter to the many changes, according to the court. However, the judges approved the form of the new article on the ethics commission, and the voters rati-fied the proposition in September 1990.

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The final meeting of the Oklahoma com-mission occurred on Oct. 21, 1991. The com-mission released its final report and approved unanimously its revised constitution for the state (see "The Constitution of the State of Oklahoma: Recommendations for Revision. Final Report of the Constitution Revision Study Commission:' October 21, 1991). The proposed document and commentary will be published in the Oklahoma City University Law Review in the summer of 1992.

The proposed constitution is much shorter, less statutory and more fundamental in char-acter than the current Oklahoma document. Although much of the present constitution has been retained, there are substantial revi-sions including: a completely revised or new article on the executive, corporations, and rev-enue and taxation; elimination of the insur-ance article; replacement of the social security and alcoholic beverages articles with short statements of principle; and a change in the amendment and revision article to allow the type of article-by-article revision struck down by the Oklahoma Supreme Court.

Utah's Constitutional Revision Commis-sion, a permanent body since 1977, is required by statute to submit recommendations for constitutional changes to the Legislature at least 60 days before each regular session. Rec-ommendations for a major revision of the labor article and two changes in the legisla-tive article were rejected by the Legislature in 1990. At the general election, however, a pro-posed amendment on emergency powers, ori-ginally recommended by the commission, was ratified by the voters. Major revisions of the corporations article and changes in executive offices, boards and commissions were sub-mitted to the 1991 Legislature, but no action was taken. The commission's most recent rec-ommendations, made to the 1992 Legislature, are all resubmissions: major revisions of the labor, corporations, legislative and executive articles; and two lesser changes, legislative eli-gibility and separation of powers and elimi-nation of the dedication of the income tax for the public schools. In addition, the commis-sion began a comprehensive study of the reve-nue and taxation article and completed studies

of term limitations, the prohibition ofpolyga-my, the executive branch (qualifications, eligi-bility and duties) and constitutional issues relating to the State Tax Commission.

The Florida Taxation and Budget Reform Commission was authorized by a constitu-tional amendment adopted in 1988 (see The Book of the States 1990-91 for information). The amendment required the establishment of the commission in 1990 and every 10 years thereafter. Like its predecessor, the Florida Constitution Revision Commission, the new body is empowered to propose constitution-al amendments directly to the voters, thus bypassing the Legislature. Unlike the earlier group, whose authority extended to any sub-ject, this commission has authority only over tax and budget issues, which were taken away from its predecessor. Also, unlike the other body, the tax and budget reform commission may recommend statutory changes of a fis-cal nature to the Legislature.

The purpose of the commission is to pro-vide citizen analysis and recommendations for tax and budget reforms. According to one account, many view it as the best hope for improvement in the fiscal system. 1 The 29-member commission was appointed in early 1990. Of the 25 non-legislative voting members, 11 were appointed by the governor, and seven each by the speaker of the House and the Senate president. Of the four non-voting legislators, the speaker appointed one majority and one minority representative and the president of the Senate appointed one majority and one minority senator. At the first meeting of the commission on April 16, 1990, Thompson L. Rankin, Tampa business and civic leader, was elected chairman. The commission was made up almost entirely of business, professional and government lead-ers. Initially, there were five female members and one black member.

The Legislature appropriated $1.5 million to the commission for the two years it has been in operation. In addition, administrative support has been provided by the Florida Center for Public Management at Florida State University. Members receive per diem and travel expenses.


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An active commission, the group has held numerous meetings (26 between April 16 and October 1990 alone) and many public hear-ings, has made recommendations to the Leg-islature, and has published two major reports: "A Program for Reform of Florida Govern-ment" (1991) and "Florida's Fiscal Future: Balancing Needs and Taxes" (1992). In the 1992 volume, the commission made recommen-dations for eight new constitutional amend-ments, among them a taxpayers' bill of rights, a revenue cap on state revenues, a limited in-come tax (which the Florida constitution cur-rently prohibits), and more fiscal freedom for local governments. During April 1992, the commission met weekly to prepare its final recommendations for constitutional amend-ments, as May 7 was the deadline for inclu-sion on the November general election ballot. To be referred, each proposed amendment had to be approved by two-thirds of the vot-ing members of the commission and, addi-tionally, by a majority of each of its three voting subgroups (identified by their appoint-ing authority). The commission is required by law to cease operations on June 30, 1993.

Substantive Changes

In 1990-1991, no general revision proposals and no revisions of an entire article were on the ballot of any state. In some instances, however, a new article or major sub-article

was approved, as was the case with the Okla-homa ethics article. The biennium was event-ful, nonetheless, with several significant mea-sures on state ballots. One was the "Crime Victims Justice Reform Act:' ratified by Cali-fornia voters. According to the California Su-preme Court, which struck down the major section, it would have altered the fundamen-tal character of the state constitution and the state judiciary. Another major development in which California played a key role was the adoption of term limits for the state legisla-ture and the executive branch.

Two important public school reform pro-posals also were on state ballots. An Oregon amendment, subsequently defeated by the voters, would have established an open enroll-ment plan and income tax credits for students attending private schools or receiving home instruction. An Arizona proposal, also reject-ed at the polls, would have followed in the footsteps of California's Proposition 98 by ensuring a higher level of school spending. As in the past, there were numerous fiscal mea-sures that would have effected far-reaching changes. With the possible exception of an Oregon proposal to reduce school property taxes substantially, however, no really major changes were approved.

Table B offers an overview of the general subject matter of state constitutional change in 1990-1991 and three preceding biennia. Propositions are placed in two major categor-

Table B

Substantive Changes in State Constitutions: Proposed and Adopted, 1984·85, 1986-87, 1988-89 and 1990-91

Total proposed

1984 1986 1988 1990 Subject mailer -85 -87 -89 -91

Proposals of statewide applicability 228 251' 228' 195' Bill of Rights 9 12' 21 13 Suffrage & elections 5 II 12 3 Legislative branch 37 49 44 45 Executive branch 30 23 22 9 Judicial branch 19 18 18 13 Local government 16 17 14 7 Finance & taxation 67 45 54 58 State & local debt 21 12 6 4 State functions 17 29 22 29 Amendment & revision 2 0 5 0 General revision proposals 0 14 0 0 Miscellaneous proposals 5 22 12 15

Local amendments 10 24 39 31

• Excludes Delaware where proposals are not submitted to the voters. t Includes Delaware.

Total adopted

1984 1986 1988 -85 -87 -89

154 184t l64t 7 10 19 5 10 8

19 35 33 20 19 14 16 15 14 13 II 10 43 29 33t 16 8 5 9 22 17 2 0 2 0 8 0 4 17 9 4 20 35

t Excludes one Nevada constitutional initiative whose final adoption requires a second favorable vote.


1990 -91

121t 8 2

28 8 7 3

36 3

18 0 0 9

24

Percentage adopted

1984 1986 1988 1990 -85 -87 -89 -91

67.1' 72.9' 71.6' 61.5' 77.7 81.8' 90.5 61.5

100.0 90.9 66.7 66.6 51.5 71.4 75.0 62.2 66.7 82.6 63.6 88.8 78.9 83.3 77.8 53.8 75.0 64.7 71.4 42.8 64.2 64.4 62.9t 62.0 76.2 66.6 83.3 75.0 52.9 75.8 77.3 62.0

100.0 0 40.0 0 0 57.1 0 0

80.0 77.2 75.0 60.0' 40.0 79.1 89.7 =74.1*

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ies: those of general statewide application, which are, by far, the most numerous and in-volved 41 states in 1990-1991; and proposed local amendments considered in seven states (Alabama, Colorado, Delaware, Louisiana, New York, North Dakota and Ohio) during the same period. The local amendments ap-ply to only one or a few political subdivisions. Of the 195 statewide propositions, 121 were adopted (including one in Delaware). Exclud-ing Delaware, the voters approved 61 percent of these measures. Of the 31 local amend-ments, 24 were accepted (including one Dela-ware proposition). Excluding Delaware, 74 percent were approved.

In Table B, statewide amendments are fur-ther classified under the principal topics of state constitutions, identified for convenience by the titles of articles found in most constitu-tions. The use of article titles does not provide a complete guide to the number of proposi-tions on the same subject, however, as indi-vidual constitutions are internally inconsistent and state constitutions also differ from one another.

As indicated by Table B, finance drew the most propositions of all articles (58), which is typical, and the legislative article the next highest (45), also customary. The executive ar-ticle, however, registered the highest approval rating (89 percent), unlike two years ago, when the Bill of Rights was at the top of the list with a 90 percent success rate. The lowest approval rate was left to the local government article (43 percent), the only article to fall be-low 50 percent.

Bill of Rights, Suffrage and Elections The number of proposals to alter state bills

of rights dropped from a 1988-89 record of 21 for the decade to 13 in 1990-1991. Adoptions also were much lower, eight instead of 19, for a modest approval rate of 61 percent in 1990-1991. Almost half of the proposals con-cerned crime, and four of these were designed to protect the rights of crime victims. Voter-approved measures in New Jersey and Arizo-na were typical and included the rights to be informed, heard, present at trials and to re-ceive restitution.

The two California propositions were of a different character altogether. The major sec-tion of both initiatives was identical except for a provision retaining the right of reproductive choice under the California Constitution, which was incorporated in the proposition re-jected by the voters. The California measure that passed, the "Crime Victims Justice Re-form Act" (Proposition 115), was designed to restrict the rights of criminal defendants to those upheld by the U.S. Supreme Court under the U.S. Constitution. In other words, the California courts would have been prohibited from providing greater protection of defen-dants' rights under the state constitution than under the federal document. The California Supreme Court in the case of Raven v. Deuk-mejian, 801 P.2d 1077 (Calif. 1990), declared the provisions unconstitutional on the ground that they constituted a "revision" rather than an "amendment" (to which constitutional ini-tiatives are restricted under the state constitu-tion). According to the high court, the provi-sions amounted to a revision because they destroyed the California Constitution as "a document of independent force and effect" and deprived the courts of their traditional ju-dicial functions. The court said that at least 32 state constitutional rights would have been eliminated by the proposition. The court left standing three other sections of the initiative: one conferred on the state for the first time the rights of due process and a speedy and public trial; the others prohibited various procedures preliminary to trial that would have favored the defendant. To date, these have not been held unconstitutional.

Of the other crime proposals, a South Caro-lina amendment that would have reduced the state grand jury's jurisdiction was defeated, while an Oklahoma measure that made changes in criminal and civil juries was adopted.

Other alterations to the state bills of rights included a Florida "right to keep and bear arms" provision that was adopted; it requires a three-day waiting period for handgun pur-chases. Voters in Oregon rejected an initiative that would have limited abortion except in


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cases of rape, incest and possible death of the mother. The electorate also defeated an Ari-zona initiative providing for a no-fault auto-mobile insurance program that limited recovery for damages under tort law. In Geor-gia, voters approved a change establishing a state torts council that would make it easier to sue the state. Of two "eminent domain" propositions, both changing the method of property valuation, one passed (Oklahoma) and one failed (South Dakota). Maryland voters adopted an exception to a dual office-holding prohibition by allowing judges and legislators to serve in the military. Other rights-related changes not located in the states' bills of rights were: the approval of English as the official language of Alabama; an exemption from the property tax for most church property in Wisconsin; and the repeal of vestiges of segregation in Mississippi and Arkansas. The Mississippi amendment re-moved the requirement of racial segregation in prisons; the Arkansas measure repealed an amendment directing the state to fight racial desegregation in the public schools.

In the 1990-1991 biennium, only three changes were proposed for state suffrage and election articles, and none concerned the right to vote. Georgia voters approved an amend-ment extending the time persons convicted of a felony involving moral turpitude would be ineligible for public office. The other two changes involved initiative and referendum sections or articles. In Montana, voters adopt-ed a constitutional change that would auto-matically restore to the ballot a certified propo sition after certain technical corrections were made. California voters rejected a proposal that would have required an election before changes in the initiative and referendum pro-cedures could be adopted.

Three Branches of Government Proposals to change the legislative, execu-

tive and judicial articles amounted to about one-third of the statewide propositions in 1990-1991. Those related to the legislative ar-ticle overshadowed the others, claiming two-thirds of the proposals. But only 62 percent of the legislative measures were approved, a lO-point drop from the last biennium. While


the approval rate of executive article measures was unusually high, that of the judiciary ar-ticle propositions was uncharacteristically low. Moreover, the number of proposed judiciary changes was lower than usual.

The most significant proposals concerned term limitations. Of four on the ballot, all were approved by the voters except one that was on the same ballot in California as Proposition 140. (It is of interest that Wash-ington voters defeated a statutory initiative that would have applied term limits to the state legislature, the governor and lieutenant governor, and members of Congress.)

California's Proposition 140, the "Political Reform Act of 1990:' was the most far-reach-ing and controversial of the term limit pro-posals. It limited the terms of legislators and elected executive officers (except the insurance commissioner); prohibited legislators from earning state retirement benefits; and reduced substantially the total amount of legislative expenditures for salaries and operations (a 38 percent cut the first year). The proposition's constitutionality was challenged almost im-mediately. In Legislature of California v. Eu, 816 P.2d 1309 (Calif. 1991), the California Su-preme Court sustained the constitutionality of all of the provisions, except one that ter-minated all rights to pensions by incumbent legislators. However, the ban on pensions for future legislators was upheld. The high court refused to hold that the proposition violated the single-subject rule or was a revision and not an amendment, that it violated federal and state voting and office-holding rights, or that it was a bill of attainder. The court agreed that the right of contract had been abridged by the pension section. The U.S. Supreme Court denied certiorari in 1992.

Under the California term limits, a person may not serve more than two terms in the state Senate or in the executive offices listed in the amendment and may not serve more than three terms in the lower house. While it constitutes a life-time ban on service in a giv-en office, there is no prohibition against ser-ving in another office for the time allowed. In Oklahoma, the first state to adopt term limits (Sept. 18, 1990), the constitutional ini-

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tiative imposed the ban solely on legislators and limited their service to 12 years, however acquired - in one house or both. However, current legislators would be allowed 12 more years. Colorado's ban applies only to consecu-tive terms. No person may serve more than two consecutive terms; following a four-year break, an individual would again be eligible for office. The provision applies to legislators and certain elective executive branch officials.

Of four provisions on legislative compensa-tion, two failed - a New Mexico measure to give legislators a monthly salary and increase per diem rates, and an Arkansas proposal for a compensation commission. California voters approved creation of a Citizens' Compensa-tion Commission, which is empowered to de-termine salaries and medical, dental and other benefits of legislative and executive branch officers. In Texas, voters adopted an unusual approach to resolve the perennial problem of changing the legislative salary fixed by the state constitution. As part of the amendment establishing the Texas Ethics Commission, the proposal gives the commission the authority to recommend to the voters an increase in the annual legislative salary of $7,200, and larger increases for the presiding officers. Upon the voters' approval, the recommended new sala-ries would go into effect at the beginning of the next odd-numbered year. The amendment also allows the commission to set per diem amounts.

The Texas Ethics Commission was one of two created by constitutional amendment during the biennium. The other was in Okla-homa. Both are bipartisan commissions with enforcement power, whose members are ap-pointed by several officers, and whose duties include conducting investigations and prom-ulgating rules. In Texas, the new body will be responsible for campaign and lobby regula-tions. Oklahoma's commission can make rules applying to political campaigning, including that for initiative and referendum elections. A third ethics amendment during the bienni-um, a South Dakota proposal to relax conflict of interest regulations to a limited extent, was defeated.

Seven propositions dealt with apportion-ment. However, only two passed: the repeal of a separate state census in Massachusetts, and a Connecticut measure extending the time for adopting an apportionment plan after census figures are available. Two California amendments would have changed significant-ly the apportionment process; but embroiled in partisan politics, they were defeated. Three Hawaii proposals, all of which failed, would have replaced registered voters with popula-tion and made changes regarding island rep-resentation.

Of six proposals concerning legislative ses-sions, four passed. South Dakotans agreed to let their legislature call itself into special ses-sion, but Kentucky voters refused to do so. Also defeated was an effort to move from biennial to annual sessions in Oregon. Earli-er convening dates for regular sessions of the Florida and Louisiana legislatures were ap-proved by the voters of these states. In Hawaii, however, the voters denied the legislature dis-cretion over recesses. Five proposed amend-ments concerned some aspect of legislative procedures. The most significant was a Florida "sunshine" measure, approved by the voters, which requires certain meetings to be open to the public, but gives the Legislature power to enforce compliance. Louisiana voters defeated a proposal that would have changed proce-dures for handling local and special bills, and North Dakota voters disapproved a change in the effective date for legislation. Others, which were approved, concerned the reading of bills (Mississippi) and various deadlines for guber-natorial review (California).

Among the remaining proposals to change the legislative article was the North Dakota proposition to remove the lieutenant governor as the presiding officer of the state Senate, which failed, and a Kentucky measure to al-low the legislature to review administrative rules, which also was defeated. Adopted were a Mississippi amendment removing the legis-lative election of U.S. Senators and presiden-tial electors and a Utah provision extending emergency powers to natural and manmade disasters.


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Of the nine proposed amendments to the executive article, only one was rejected - a North Dakota proposal to transfer the audi-tor from the executive to the legislative branch. Three measures concerned with gubernatorial powers involved: clarifying state Senate action on recess appointments by the governor (Tex-as); ending the practice under the governor's partial veto power of forming new words by striking out letters (Wisconsin); and remov-ing three minor officers from the governor's appointment power (Wyoming). Several of the proposals to change the administrative structure or powers were significant. Missouri voters approved creation of a state Depart-ment of Insurance that includes an Office of Consumer Affairs. In Louisiana, two civil service changes were adopted - one creating a separate police service and the other remov-ing legislative authority to supplement uni-form civil service pay. A Mississippi provision requiring the treasurer and the governor to count state revenues by hand twice a year was repealed.

Fundamental reforms were absent from the judicial article during the 1990-1991 bienni-um. However, new courts were authorized in two states - a family court in Nevada and a new appellate court in Nebraska. Moreover, various changes in jurisdiction were approved. In Arizona, justices of the peace and other in-ferior judges are allowed to hear cases based on an increase in the dollar amount for civil jurisdiction; and in Georgia, municipal courts are allowed to try state officers if they have legislative approval. The removal of workers' compensation from district courts to an ad-ministrative hearing officer was approved in Louisiana. In Georgia, a change in the filing of divorce cases was approved, and in Mary-land, courts of appeals were given powers over clerks. Voters defeated proposals to: require more years of legal experience for district judges (Hawaii); give a judge who fills a va-cancy more time to serve before standing for election (North Dakota); allow the legislature to regulate local court costs (Alabama); in-crease the number of commissioners (Washing-ton); and allow the legislature to confer equity jurisdiction on more courts (Washington).


Local Government Five proposed amendments promised sig-

nificant organizational reform of local gov-ernment (including one in the judicial article). Oregon voters ratified a measure that confer-red the power of self-government on metro-politan service districts by means of district charters and included initiative and referen-dum powers. But significant changes in Ken-tucky, Washington and Mississippi failed to secure passage. The Kentucky amendment would have removed various constitutional limits on the state legislature by allowing it to grant municipal home rule, classify and regu-late cities, and make other rules. One of the Washington propositions would have added new methods to make it easier for counties to adopt home rule charters. A second amend-ment from that state would have clarified how counties may be created and, for the first time, would have allowed counties to combine. In Mississippi, the requirement for five county supervisors would have been repealed, as well as the freeholder requirement for supervisors. Not a major reform, a sixth amendment, which was adopted, reduced the population needed to amend home rule charters in Texas.

State mandates were the subject of amend-ments approved by the voters of Louisiana and Florida. The provisions restricted the states' authority to impose burdens on local governments. The Louisiana amendment al-lows mandates provided the state appropriates money to cover costs borne by the local gov-ernments, opens up new revenue sources for them, or acts on approval by the local govern-ing body. In Florida, the provisions are similar with the exception that, in general, mandates may be imposed by two-thirds of the state legislatures and local governments carry the legal burden of challenging illegal mandates.

Among local government proposals from other constitutional articles was a Missouri proposition, approved by the voters, that au-thorizes the state legislature to establish neigh-borhood improvement districts, and a Wyo-ming amendment that requires fees collected by sheriffs to be deposited in the county gen-eral fund. Other amendments concerned local finance.

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Finance Proposed amendments to the finance article

are always numerous and invariably outnum-ber those to any other article in state consti-tutions. In 1990-1991, there were 62 proposals, including four from the debt article, which in a few state documents is separate from reve-nue and taxation or finance. Of these, 39 were approved, for a 63 percent success rate. In ad-dition, proposed amendments to other arti-cles also concern finance.

Taxes were the target of most amendments in the 1990-1991 biennium. There were a total of 34 tax measures, 27 on the property tax and seven on other taxes. The most restrictive of the state proposals were rejected. A Colora-do proposition, the Taxpayers Bill of Rights, modeled in many respects after California's Proposition 13 (see The Book of the States 1990-1991), was defeated for the second time. The California Taxpayers Right-to-Vote Act, which would have placed additional restric-tions on state and local governmental tax powers, also was rejected. By way of example, charter cities would not have been able to levy a general tax without a two-thirds vote of the governing body and a popular vote; also any state special tax enacted through the initiative process would have required a two-thirds vote of the electorate.

The most radical tax proposal was on the Montana ballot. It would have replaced most taxes (sales, property and income) with a 1 percent tax on financial transactions, but was not approved. The voters also killed a South Dakota proposition that would have imposed a maximum annual 2 percent increase on real property taxes. Oregon voters approved an amendment that substantially reduced prop-erty taxes dedicated to the public schools, but also provided for replacement revenue from state revenues. The measure sets up two cate-gories of dedicated property taxes: taxes dedi-cated to the public schools and taxes dedicated for any other purpose. The maximum tax rate for schools will drop from $15 per $1,000 valu-ation to $5 in five years by stages. The maxi-mum rate for the other category is to be maintained at a constant $10 per $1,000 valu-ation. The measure further directs the legis-

lature to use the state general fund to replace revenue lost by the schools because of the tax limitations, but the replacement money would not be required after five years and would be limited by a 6 percent growth factor.

Three propositions prohibited certain taxes. Nevada voters approved for the second time a ban on the personal income tax (two approv-als are necessary to effectuate a constitutional initiative). Louisiana voters adopted a prohi-bition against the local inheritance tax. But South Dakota voters rejected a proposition that would have prohibited the income tax un-less revenues were dedicated to elementary and secondary education and a replacement for their property tax was levied.

Although the most restrictive tax measures failed, voters also were reluctant to adopt new taxes. California voters defeated two amend-ments that would have raised taxes on alco-holic beverages. In Georgia, voters rejected a measure that would have authorized the state legislature to allow local governments (whose ad valorem taxes were restricted by constitu-tional provisions) to impose a local use tax without a corresponding limit on the property tax. One approved tax measure will distribute one-third of the proceeds from the tax on lig-nite to parishes (counties) in Louisiana.

Amendments to add exemptions or tax breaks to property tax laws are most popular with the voters. In 1990-1991, there were 13 such proposals, of which 11 were approved. Examples of adopted exemptions include a California proposition to allow exemptions for earthquake-related repairs and construc-tion, a Louisiana measure to use exemptions to help the homeless, and a Georgia proposi-tion to encourage conservation. Two rejected measures concerned assistance for low-income housing in Washington and a free port exemp-tion in free enterprise zones in Texas.

Among other tax proposals was a Louisiana measure authorizing a single local use and sales tax collector, which passed. Two others that would have changed vote requirements to make it easier to levy taxes or exceed cer-tain limits failed in Missouri and Washington.

With respect to expenditures, ballot propo-sitions in Louisiana, Nebraska and Colorado


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provided for general spending limits. Only the Louisiana proposal passed. It imposes an expenditure limit, and requires a balanced budget. The state legislature is given the re-sponsibility for setting an expenditure limit determined by the prior year's expenditure level and a growth factor based on personal income growth. An Estimating Revenues Con-ference has the duty of providing for an offi-cial estimate of revenues every year; legislative appropriations are not to exceed the estimate. The conference is composed of the governor, the House speaker, the Senate president (or these officers' designees) and a university fac-ulty member who is an expert on revenue fore-casting. A unanimous vote of the members is necessary to make the estimates official. If the state legislature is unable in regular session to balance the budget, the governor must call a special session. Revenues in excess of the ex-penditure limit are to be deposited in a Reve-nue Stabilization/Mineral Trust Fund.

The defeated Nebraska amendment would have curbed state and local government spend-ing by allowing a maximum 2 percent increase over the previous year's appropriations. The state limits could have been exceeded by a four-fifths vote of the state legislature, and the local limits, by a majority vote of the people in the locality. The Colorado provision was part of the Taxpayers Bill of Rights that went down to defeat.

On the other side of the spending coin, there were attempts to relax existing spending limits and to increase spending. California voters passed the Traffic Congestion Relief and Spending Limitation Act, which raises the expenditure limits and increases spending for transportation projects. But a second measure on an alcohol surtax was defeated. In addition to raising taxes, that measure also would have established spending levels on health and certain other programs above those prevailing before the surtax was levied. The most ambitious effort to guarantee lev-els of spending and exceed existing spending levels was the Arizona school reform meas-ure (see discussion under Functions, Amend-ments and Revisions, and Miscellaneous, page 13).


Several proposed amendments focused on specific programs. Three concerned transpor-tation. Voters in California and Oregon re-jected measures to begin or increase spending on light rail or mass transit. In Texas, voters approved state spending on turnpikes, a change from the constitutional provisions that limit-ed financing to toll revenues. Two Louisiana amendments to permit assistance for eco-nomic development failed. One would have allowed state and local governments to pro-vide grants, loans and investments for educa-tion and economic development, if approved by two-thirds of their respective governing bodies. The other would have permitted local dedicated funds to be used for industrial development. A Wisconsin amendment that would have allowed the state to acquire or construct affordable housing for low- or mod-erate-income people was rejected, but a Geor-gia measure to indemnify licensed emergency research specialists killed or permanently in-jured while on duty was approved.

Several new funds were added to state con-stitutions during the 1990-1991 biennium. Five concerned natural resources. Two such funds were approved in North Dakota: the Resources Trust Fund and the Permanent Coal Develop-ment Fund. The first consists of a percentage of oil tax revenues and is to be spent on water projects and energy conservation. The second is a depository for coal severance tax proceeds, up to 50 percent of which are to be spent on lignite research, development and marketing. Louisiana voters approved the Mineral Reve-nue Audit and Settiement Fund to hold pro-ceeds from legal settlements on mineral reve-nues. The money could be used for several purposes, including retiring the state debt. The Louisiana Revenue Stabilization/Mineral Trust Fund is to include a portion of mineral revenues, such as royalty payments and sever-ance tax proceeds, in addition to excess reve-nues above the expenditure limit. The fifth fund is Alaska's Budget Reserve Fund, which also was adopted. It is to receive moneys resulting from litigation over taxes on miner-als and mineral lease payments. Other funds approved by the voters were: the Higher Edu-cation Louisiana Partnership Fund, the Geor-

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gia Emerging Crop Loan Fund, and the Ala-bama Penny Trust Fund. The Alabama fund is to receive voluntary donations from citizens, with the income from the perpetual trust fund used to promote public health and education.

A few amendments concerned the adminis-tration of funds. Texas voters agreed to give veterans loan program administrators more discretion in investments, but not state retire-ment fund administrators. Louisiana voters agreed to place limits on the state's Quality Education Support Fund.

State constitutions typically mclude debt limits, which are frequently changed for specif-ic projects requiring borrowed money. During the 1990-1991 biennium, the Texas Constitu-tion was amended to substitute a mandatory referendum on debt for constitutional amend-ments to incur debt. In addition to the refer-endum, bond issues will also require the ap-proval of two-thirds of the members of the state legislature. In this way, the constitution will not be filled with authorizations for bonds. Acting under the provision before the new amendment, Texas voters approved a $1.1 billion bond issue for the construction ofvari-ous public facilities such as prisons. They also approved an increase in the proportion of a current bond program for water and sewer projects in the "colonias;' economically-dis-tressed areas primarily in South Texas. After an initial rejection of a proposal for addition-al bonds to finance college student loans, the Texas electorate supported the bonds in a sec-ond election. An Alabama proposition to al-low state bonds for the improvement of docks and a federal channel was adopted, but Vir-ginia propositions to use bonds for transpor-tation projects at the state and local level failed at the polls. The remaining proposals concerned local debt and borrowing. The voters said "no" to new debt or extended debt periods in New Mexico and Arizona, but "yes" to allowing bonds for the purchase of public utilities and for economic development in Oklahoma.

Functions, Amendments and Revisions, and Miscellaneous

Most contemporary state constitutions con-tain separate articles on governmental policies

or functions important to the particular state, primarily in the areas of education, corpora-tions, health and welfare and natural resources/ conservation. But policy provisions also are in other articles. As a result, amendments that alter the education and other policy articles are not indicative of all policy changes in a given biennium.

The total number of proposed changes to the policy articles in 1990-1991 increased to 29, seven more than two years ago. The num-ber of approvals was about the same (18 in-stead of 17), for a current approval rate of 62 percent. Education proposals accounted for more than half (15) of the proposals and about half (eight) of the approvals as well. The subjects of the other amendments were so varied that no significant patterns are dis-cernible.

Two significant public education reforms, one in Oregon and the other in Arizona, were rejected. The Oregon reform would have pro-vided for "open enrollment" in which public school students could attend schools outside their districts. Parents of students who attend-ed private school (secular, religious, or institu-tional) or received "home basic instruction" would have been eligible for income tax cred-its. To cover the costs of the program, an edu-cation choice fund would have been establish-ed. In addition, voter approval would have been necessary for new, more restrictive laws on "non-government basic education:'

The three goals of the Arizona Classroom Improvement Program were: to improve stu-dent performance on basic skills, to reduce drop outs, and to prepare students better for employment and higher education. To reach the goals, school districts, with the participa-tion of parents, teachers and others, would have been required to prepare annual report cards on their progress toward achieving the goals. Constitutional expenditure limits would have changed, with guaranteed levels of mini-mum funding established. Specifically required was an increase in funding by $100 per student per year compounded annually over the next 10 years. According to the pamphlet distribut-ed to voters, the proposition was supported by "one of the largest coalitions of parents,


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educators, business leaders and taxpayers in Arizona's histor),!' Former U.S. senator and Republican presidential standard bearer Bar-ry Goldwater was one of the supporters.

At the higher education level, Georgia voters approved an innovative plan which has been considered by a number of states recently. Its purpose is to assist students and parents in financing a college education by establishing an Education Trust Fund to guarantee advance payment of tuition contracts with state reve-nues. The contracts are made with the fund. Another successful higher education measure was a Nebraska proposition establishing the Coordinating Commission for Post Secon-dary Education, with authority to coordinate the campuses of the University of Nebraska, the state colleges and the community colleges. It authorizes comprehensive planning and other activities. Louisiana voters, on the other hand, defeated a reorganization of the Loui-siana Board of Regents that would have in-cluded the development of a comprehensive plan. Also defeated for the second time was a North Dakota measure to change the com-position of the State Board of Higher Edu-cation.

Oklahoma voters defeated the proposed re-organization of the State Board of Education, but Kansas voters agreed to let their state leg-islature decide whether the state school board should be elected or appointed. Other ap-proved proposals involved: permitting elected school superintendents to become members of the teachers' retirement system (Alabama); diverting income from forfeitures from the Literary Fund to law enforcement (Virginia); and increasing the investment discretion of the permanent school fund (New Mexico). Oklahoma voters disapproved a proposal that would have allowed the legislature to change the compulsory school age.

Three adopted amendments changed prison administration. A California measure allows private contractors to hire prison and jail inmates for employment subject to various regulations. Previously, the state constitution prohibited such contracts. A Mississippi amend-ment authorizes a non-profit corporation to manage prisons and run reform schools. A


third provision, previously mentioned, repeals compulsory racial segregation of inmates.

Two New York propositions were adopted: one increases the amount of bonds the state can guarantee under the Job Development Authority; the other removes a 109-year ban on canal tolls and allows the state to grant leases for occupancy or use of barge canal lands.

California voters approved a proposition on marine resources, which provides among other things for the establishment of a marine protection zone, the eventual prohibition of certain nets, and the formation of new ocean water ecological reserves. Another pro-envi-ronmental measure was approved in Oregon. It expands the use of general obligation bond proceeds for pollution and waste control fa-cilities to include the clean-up of hazardous waste sites. A third resources item that was re-jected in Alabama would have promoted for-estryand fire protection on forest property by means of a special fund. In Oklahoma, two measures were on the ballot to amend the ar-ticles on alcoholic beverages: one allowing liquor stores to stay open during franchise elections was defeated; a second giving more discretion to the state to regulate state workers in alcohol-related businesses was passed.

During the 1990-1991 biennium, no amend-ments were proposed to change the articles on amendment and revision of state constitutions. Two years ago, five amendments, two of which were approved, were on the ballot. No gener-al revision propositions were on the ballot in either the 1990-1991 or 1988-1989 biennia.

Most state charters contain a miscellaneous or general provisions article for propositions that apply to more than one article or that do not fit anywhere else. For convenience, the 1990 Colorado clean-up amendment, affect-ing six articles, is classified here as "miscel-laneous~' Counting the Colorado measure, there were 15 proposed amendments to the miscellaneous article and nine adoptions, compared with 12 proposals and nine adop-tions two years ago.

Three constitutional amendments concerned state retirement systems and two were adopt-ed. Voters in Wyoming and Maine approved

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protection of the rights of system members and their beneficiaries. Although not explicit-ly mentioned, the proposals would protect the systems from legislative raiding of their funds for purposes such as balancing the budget. The defeated Texas amendment would have allowed more discretion in the investment of the funds specifically in real estate, which was perceived as too risky.

Other significant proposals: authorize the state legislature to create a private, nonprofit corporation to provide workers compensation (Louisiana, approved); would have allowed the state to insure payment of mortgage loans for affordable housing (Maine, rejected); and would have provided for controls on interest rates, including consumer loans (Arkansas, rejected). In Mississippi, voters approved two amendments to remove outdated provisions, one on confederate pensions and the other on boundaries.

The remaining provisions concerned lotter-ies and gambling. Included in this review are propositions on these subjects from other ar-ticles. In 1990-1991, six lottery proposals were on the ballot, and all but one were adopted. Voters approved the establishment of state lotteries in Texas and Louisiana. In Nevada, they approved raffles and drawings that are called lotteries, without changing the ban on a state lottery. In Nebraska, voters rejected a "Nebraska State Lottery System;' which would have allowed certain nonprofit organizations to conduct "electronic lotteries" through 1995. The proposal would have set up a Nebraska State Veterans Aid Fund. The remaining two ballot propositions dedicate state lottery pro-ceeds for certain purposes: 40 percent to the environmental fund (Minnesota) and 100 per-cent for education (New Hampshire).

Five propositions concerned gambling, and a sixth, bingo. Three were local amendments. Only two of the six were passed. North Dako-ta voters rejected two amendments, one local and one statewide. The local amendment would have allowed games of chance for prof-it in one township only. The statewide propo-sition would have required the legislature to authorize private citizens and groups, as well as nonprofit organizations, to conduct games

of chance on electronic video gaming devices that would be placed only in establishments licensed to sell alcoholic beverages. Ohio vot-ers turned down a local amendment to allow a casino resort hotel in one city as a pilot project. A Colorado local amendment permit-ting gambling in three cities was approved, as was a Delaware amendment allowing wager-ing on horse races by parimutuel machines. Missouri voters rejected a proposal that would have removed advertising restrictions for bingo games.

Sources and Resources

In 1990-1991, significant new publications were added to the large and growing body of literature on state constitutions and state con-stitutionallaw. This is a good indicator of the renewed interest in and vitality of state con-stitutions today.

The U.S. Advisory Commission on Inter-governmental Relations, whose support for research on state constitutions was mentioned in this review two years ago, featured state bills of rights in the fall 1991 issue of Intergov-ernmental Perspective (Vol. 17, No.4). Enti-tled, "Federalism and Constitutional Rights;' the issue contains 11 articles, among them: "Rights: The States and the Federal Govern-ment;' "The Legacy of 19th Century State Bills of Rights;' "The State Foundations of the U.S. Bill of Rights;' and "Amending State Bills of Rights: Do the Voters Reduce Rights?" State Constitutional Law Bulletin, a month-ly periodical first published in December 1987 by the National Association of Attorneys General, began its fifth year in 1992. However, the attorneys general ceased publication of Emerging Issues in State Constitutional Law, an annual law review, in 1991 after four vol-umes. Future coverage of emerging issues will appear annually in the Temple Law Review (Temple University Law School). Also, the attorneys general no longer hold an annual seminar on state constitutional law; the third and final meeting took place in San Francis-co in 1990. The first two volumes (eight is-sues) of State Constitutional Commentaries and Notes, a quarterly review published by the Edward McNall Burns Center for State


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Constitutional Studies at Rutgers University in New Brunswick, N.J., have been completed; the third volume is underway. An anthology of essays on state constitutions also is plan-ned. Following the inaugural review of state constitutional law in the 1989 Rutgers Law Journal (Rutgers University School of Law at Camden, N.J.), two more annual reviews have been published, the latest in 1992.

During 1990-1991, the Montana and the Texas constitutions were highlighted by spe-ciallaw review editions. The summer 1990 is-sue of the Montana Law Review (Vol. 51, No. 2), "Law School Symposium of the 1972 Con-stitution;' was an outgrowth of "Constitu-tional Symposium '89:' a conference attended by legal scholars and citizehs prior to the No-vember 1990 election at which a referendum on a convention call was on the ballot. The Texas Law Review in the issue, "Symposium on the Texas Constitution:' (June 1990, Vol. 68, No.7) printed papers originally presented at an October 1989 conference on the state's constitution at the University of Texas Law School. The Oklahoma City University Law Review is scheduled to feature the Oklahoma Constitution and commentary in the summer of 1992. Also of interest is a review of New York constitutional law in Tuoro Law Review (Fall 1991, Vol. 8, No. 1): "Annual Issue on New York State Constitutional LaW.'

New books on state constitutions were re-leased during the biennium. Five volumes of the projected 52-volume series on state consti-tutions edited by G. Alan Tarr and published by the Greenwood Publishing Group were completed. They are: New Jersey, by Robert F. Williams; New York, by Peter G. Galie; Tennessee, by Lewis L. Laska; Florida, by Talbot D'Alemberta; and Louisiana, by Lee Hargrave. Another book published by Green-wood but not in the series is State Constitu-tions and Criminal Justice by Barry Latzer. Ready for publication in 1992 is Idaho's Con-stitution: The Tie That Binds by Dennis C. Colson, to be published by the University of Idaho Press. In 1991 Banks-Baldwin Law Publishing released the Ohio Constitution Handbook by Thomas R. Swisher. Also made available during the biennium was Toward a


Usable Past: Liberty Under State Constitu-tions, Paul Finkelman and Stephen Gottlieb, editors, published by the University of Geor-gia Press. Scheduled for release in 1992 is a new case book from Carolina Press by Ronald K.L. Collins, David Skover, Niel Cogan and David Schuman entitled State Constitutions and Individual Rights: Constitutions, Cases, and Commentaries.

Proceedings of the two-day conference in Anchorage on "The Future of Alaska's Con-stitution;' Nov. 15-16, 1991, are expected to be made available in 1992. At the conference a bibliography on state constitutions was dis-tributed and copies of Gordon S. Harrison's Alaska's Constitution, A Citizen's Guide were exhibited. The first edition of the Guide was prepared in 1982 to provide useful informa-tion in time for the mandatory referendum on a convention call in November 1982. Publish-ed in 1986, the second edition was written in response to a demand for basic information about state government and will provide a resource for the 1992 election. The Guide is published by the University of Alaska. An-other publication designed for citizens is Our Texas Bill oj Rights, written by James C. Har-rington in 1991. The Texas Civil Rights Pro-ject is the publisher. The 39-page booklet includes a comparison of the U.S. Bill of Rights with the Texas Bill of Rights.

An important development during the bi-ennium was the creation in May 1991 of the Committee on State Constitutional Rights by the Individual Rights and Responsibilities (IR&R) Section of the American Bar Asso-ciation. According to Human Rights (Winter 1992, Vol. 19, No.1), a publication of the IR&R Section, the goal of the committee "is to ensure the continued growth and protec-tion of human rights in this nation by enhanc-ing the bar's awareness, use and development of state constitutions:'

The selected list of references at the end of this summary analysis includes several works of particular significance: Sources and Docu-ments oj United States Constitution (edited and annotated by William F. Swindler with Donald Musch) designed to integrate national and state constitutional documents into a

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reference collection on American constitution-al developments; Model State Constitution, first published by the National Municipal League in 1923 and since revised six times; and the Index Digest of State Constitutions prepared by the Legislative Drafting Research Fund of Columbia University. The selected list necessarily excludes many specific items developed for constitutional reform of par-ticular state constitutions, including official documents, special studies, and a vast quanti-ty of ephemeral material stored in state librar-ies and archives. Of particular value are the complete, annotated, and comparative ana-lyses of the Illinois and Texas constitutions, prepared for delegates to the constitutional conventions of those states. Also excluded from the list are numerous materials prepared by groups long identified with state constitu-tions, the League of Women Voters, the Na-tional Civic League, and The Council of State Governments. Excepting the holdings of the Library of Congress, probably the most exten-sive collection of fugitive and published ma-terials are those of the National Civic League and The Council of State Governments.

Sources of periodic reviews and updates of state constitutional developments include the biennial summary of official activities in The Book of the States. The 1982-83 volume fea-tured a 50-year review of state constitutional history and bibliography. From 1982-1986, Ronald K.L. Collins authored articles on state constitutional law that appeared periodical-ly in The National Law Journal. From 1970 through 1985, Albert L. Sturm contributed an annual survey of state constitutional develop-ments to the National Civic Review.

Note

1 Donna Blanton, "The Taxation and Budget Reform Commission: Florida's Best Hope for the Future;' Florida State University Law Review 18 (Winter 1991): 437-465. At p. 442 editorials express-ing hopes for the commission are quoted.

Selected References

"Annual Issue on State Constitutional LaW.' Rut-gers Law Journal 20, 4 (Summer 1989): 877 -11l3. Includes Bibliography, 1980-89. Two subsequent

annual issues have been published: Vol. 21, 4 (Summer 1990) and Vol. 22, 4 (Summer 1991).

Bamberger, Phylis Skloot, ed. Recent Develop-ments in State Constitutional Law, New York, N.Y.: Practicing Law Institute, ]985.

Brammer, Dana B. and John Winkle III, eds. A Contemporary Analysis oj Mississippi's Con-stitutional Government: Proceedings oj a Forum May 2-3, 1986. Oxford, Miss.: The Public Poli-cy Research Center, University of Mississippi, October 1986.

Brown, Cynthia E., compo State Constitutional Conventions: From Independence to the Com-pletion oj the Present Union, A Bibliography. Westport, Conn.: Greenwood Press, 1973.

Clem, Alan L., ed. Contemporary Approaches to State Constitutional Revision. Vermillion, S.D.: Governmental Research Bureau, University of South Dakota, 1970.

Collins, Ronald K.L., compo and ed. "Bills and Declarations of Rights DigesC' The American Bench, Judges oj the Nation. 3rd ed. Minneapo-lis, Minn.: Reginald Bishop Forster and Associ-ates, Inc., 1985, 2483-2655.

Constitutions oj the United States: National and State, 2nd ed. 2 vols. Dobbs Ferry, N.Y. Oceana Publications, 1974. Loose leaf. Updated peri-odically.

Cornwell, Elmer E., Jr. et al. Constitutional Con-ventions: The Politics oj Revision. New York, N.Y.: National Municipal league, 1974. (In Sec-ond series of the National Municipal League's State Constitution Studies.)

Dishman, Robert B., State Constitutions: The Shape oj the Document. Rev. ed. New York, N.Y.: National Municipal League, 2968 (In first series of the National Municipal League's State Constitution Studies.)

Edwards, William A., ed. Index Digest oj State Constitutions 2nd ed. Dobbs Ferry, NY.: Oceana Publications, 1959. Prepared by the Legislative Drafting Research Fund, Columbia University.

Elazar, Daniel J., ed. Series of articles on Ameri-can state constitutions and the constitutions of selected foreign states. Publius: The Journal oj Federalism 12, 2 (Winter 1982): entire issue.

Emerging Issues in State Constitutional Law. An-nual Law Review. Washington, D.C.: National Association of Attorneys General 1988-1991.

Friedelbaum, Stanley H. ed. Human Rights in the States, New Directions in Constitutional Policy-making. Westport, Conn.: Greenwood Press, 1988.

Grad, Frank P., The State Constitutions: Its Func-tion and FormJor Our Time. New York, N.Y.: National Municipal League, 1968. Reprinted


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from Virginia Law Review 54,5 (June 1968). (In first series of the National Municipal League's State Constitution Studies.)

Graves, W. Brooke, "State Constitutional Law: A Twenty-five Year SummarY.' William and Mary Law Review 8,1 (Fall 1966): 1-48.

__ , ed. Major Problems in State Constitution-al Revision. Chicago: Public Administration Service, 1960.

Harrington, James C. The Texas Bill of Rights: A Commentary and Litigation Manual. Austin, Texas: Butterworth, 1987.

Kincaid, John, special ed. "State Constitutions in a Federal System:' The Annals of the American Academy of Political and Social Sciences 496 (March 1988): entire issue.

Leach, Richard H., ed. Compacts of Antiquity: State Constitutions. Atlanta, Ga.: Southern Newspaper Publishers Association Foundation, 1969.

Leshy, John D. "The Making of the Arizona Con-stitution:' Arizona State Law Journal 20, 1 (Spring 1988): 1-113.

May, Janice C. "Constitutional Amendment and Revision Revisited:' Publius: The Journal of Fed-eralism 17, 1 (Winter 1987): 153-179.

__ . "The Constitutional Initiative: A Threat to Rights?" In Human Rights in the States, New Directions in Constitutional Policymaking, Stanley H. Freidelbaum, ed.: 163-184.

__ . "Texas Constitutional Revision: Lessons and Laments:' National Civic Review 66, 2 (Febru-ary 1977): 64-69.

__ , The Texas Constitutional Revision Ex-perience in the Seventies. Austin, Tex.: Sterling Swift Publishing Company, 1975.

McGraw, Bradley D., ed. Developments in State Constitutional Law, The Williamsburg Confer-ence, St. Paul, Minn.: West Publishing Co., 1985.

Model State Constitution. 6th ed. New York, N.Y.: National Municipal League, 1963. Revised 1968.

Pisciotte, Joseph P., ed. Studies in Illinois Consti-tution Making. 10 vols. Urbana, Ill.: Universi-ty of Illinois Press, 1972-1980.

Report of the Special Commission on Constitu-tional Revision. Research Report No. 226. Frankfort, Kentucky: Legislative Research Com-mission, September 1987.

Sachs, Barbara Faith, ed. Index to Constitutions of the United States: National and State. Lon-don, Rome and New York: Oceana Publications. 1980. Prepared by the Legislative Drafting Re-search Fund. Columbia University. The first two in the series are: Fundamental Liberties and Rights: A Fifty-State Index (1980), and Laws,


Legislatures and Legislative Procedures: A Fifty-State Index (1982).

Schrag, Philip G., Behind the Scenes: The Politics of a Constitutional Convention. Washington, D.C.: Georgetown University Press, 1985.

Southwick, Leslie H. "State Constitutional Revi-sion: Mississippi and the South:' The Mississip-pi Lawyer 32, 3 (November-December 1985): 21-25.

__ and C. Victor Welsh, III. "Method of Con-stitutional Revision: Which Way Mississippi?" Mississippi Law Journal 56, 1 (April 1986): 17-71.

State Constitutional Commentaries and Notes, A Quarterly Review. New Brunswick, N.J.: Edward McNall Burns Center for State Constitutional Studies, Fall 1989-.

State Constitutional Conventions, Commissions, and Amendments, 1979-1988. Annotated Bib-liography and Microfiche Collection, Part 5. Bethesda, Maryland: Congressional Informa-tion Service, 1989. Parts 1-4 (1776-1978) pub-lished irregularly. For annotated bibliography published separately for Part 1(1776- 1959) see Cynthia Brown entry.

State Constitutional Convention Studies. 11 vols. New York, N.Y.: National Municipal League, 1969-1978.

State Constitutional Studies. 10 vols. in two series. New York, N.Y.: National Municipal League, 1960-1965.

State Constitutional Law Bulletin. Monthly from July-August. Washington, D.C.: National As-sociation of Attorneys General, Dec. 1987.

Sturm, Albert L., A Bibliography on State Con-stitutions and Constitutional Revision, 1945-1975. Englewood, Colo.: The Citizens Con-ference on State Legislatures, August 1975.

__ . Annual summary analyses of state constitu-tional developments. Published in the January or February issues of the National Civic Review 1970-1985.

__ . "The Development of American State Con-stitutions:' Publius: The Journal of Federalism 12.2 (Winter 1982): 57-98.

__ . Thirty ~ars of State Constitution Making, 1938-1968. New York, N.Y.: National Municipal League, 1970.

Swindler, William E, ed. Sources of Documents of United States Constitutions. 10 vols. Dobbs Fer-ry, N.Y.: Oceana Publications, Inc. 1973-1979.

__ ed. (vol. 1), with Donald Musch (vols, 2-4). Sources and Documents of U.S. Constitutions, Second Series 1492-1800. 4 vols. dobbs Ferry, N.Y.: Oceana Publications, Inc. 1982-1986.

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''A Symposium on State Constitutional Revision:' Oregon Law Review 67, 1 (1988): 1-238.

"Symposium on the Arizona Constitution:' Ari-zona State Law Journal 20, 1 (Spring 1988): 1-368.

"Symposium on Constitutional Revision in Mis-sissippi:' Mississippi Law Journal, 56, 1 (April 1986): 1-163.

"Law School Symposium of the 1972 Constitu-tion:' Montana Law Review 51, 2 (summer 1990): 237-508.

"Symposium: The Emergence of State Constitu-tional LaW.' Texas Law Review 63, 6 and 7 (March/April 1985): 959-1375.

"Symposium on the Texas Constitution:' Texas Law Review 68, 7 (June 1990): 1337-1671.

Tarr, G. Alan and Mary Cornelia Porter, eds. "New Developments in State Constitutional LaW.' Publius: The Journal of Federalism 17, I (Win-ter 1987): entire issue.

Tarr, G. Alan, ed. Reference Guides to the State

Constitutions of the United States (Projected 52 Vols.) Westport, Conn.: Greenwood Publishing Group. Thlbot D'Alemberte, The Florida State Constitution, A Reference Guide, 1991. Peter G. Galie, The New York Constitution, A Reference Guide, 1990. Lee Hargrave, The Louisiana State Constitution, A Reference Guide, 1991. Lewis L. Laska, The Tennessee State Constitution, A Reference Guide, 1990. Robert F. Williams, The New Jersey State Constitution, A Reference Guide, 1990.

Wheeler, John P., Jr. The Constitutional Conven-tion: A Manual on Its Planning, Organization and Operation. New York, N.Y.: National Mu-nicipal League, 1961.

__ . ed. Salient Issues of Constitutional Revision. New York, N.Y.: National Municipal League, 1961.

Williams, Robert F. State Constitutional Law: Cases and Materials. Publication M-159. Wash-ington, D.C.: Advisory Commission on Inter-governmental Relations, 1988.


CONSTITUTIONS

Table 1.1 GENERAL INFORMATION ON STATE CONSTITUTIONS

(As of January 1, 1992)

Effective date Number 0/ amendmenJs State or other lVumber oj oj present Estimated length Submitted jurisdiction constilUtions'" Dales of adoption constilution (number of words) to volers Adopted

Alabama. 1819,1861,1865,1868,1875,1901 Nov. 28, 1901 174,000 759 538 Alaska. 1956 Jan. 3, 1959 13,000 32 23 Arizona 1911 Feb. 14, 1912 28,876 (a) 204 III Arkansas 1836, 1861, 1864, 1868, 1874 Oct. 30, 1874 40,720 (a) 167 77 (b) California. 1849, 1879 July 4, 1879 33,350 800 480

Colorado 1 1876 Aug. 1, 1876 45,679 243 118 Connecticut. 4 1818 (c), 1965 Dec. 30, 1%5 9,564 27 26 Delaware 4 1776, 1792, 1831, 1897 June 10, 1897 19,000 (d) 121 Florida 6 1839, 1861, 1865, 1868, 1886, 1968 Jan. 7, 1969 25,100 83 57 Georgia 10 1777,1789,1798,1861,1865,1868, July I, 1983 25,000 44 (e) 32

1877, 1945, 1976, 1982

Hal\'aii I (f) 1950 Aug. 21, 1959 17,453 (a) 98 82 Idaho 1 1889 July 3, 1890 21,500 188 108 Illinois. 4 1818, 1848, 1870, 1970 July I, 1971 13,200 12 7 Indiana 2 1816, 1851 Nov. 1, 1851 9,377 (a) 70 38 Iowa. 2 1846, 1857 Sept. 3, 1857 12,500 51 48 (g)

Kansas 1 1859 Jan. 29, 1861 11,865 116 88 Kentuck) 4 1792, 1799, 1850, 1891 Sept. 28, 1891 23,500 62 30 Louisiana II 1812, 1845, 1852, 1861, 1864, 1868, Jan. I, 1975 51,448 (a) 74 46

1879, 1898, 1913, 1921, 1974 Maine. 1819 March 15, 1820 I3,500 188 158 (h) Maryland 1776, 1851, 1864, 1867 Oct. 5, 1867 41,349 (a) 235 202

Massachusetts. I 1780 Oct. 25, 1780 36,690 (a, i) 144 117 Michigan 4 1835, 1850, 1908, 1963 Jan. I, 1964 20,000 47 16 Minnesota I 1857 May II, 1858 9,500 207 113 Mississippi 4 1817, 1832, 1869, 1890 Nov. I, 1890 24,000 140 108 Missouri 4 1820, 1865, 1875, 1945 March 30, 1945 42,000 \19 76

Montana. 1889, 1972 July I, 1973 \I ,866 (a) 27 16 Nebraska 1866, 1875 Oct. 12, 1875 20,048 (a) 289 193 Ne\'ada. 1864 Oct. 31, 1864 20,770 178 \II (g) !'ie", Hampshire 1776, 1784 June 2, 1784 9,200 277 Ul 143 OJ ~ew Jersey. 1776, 1844, 1947 Jan. I, 1948 17,086 53 40

~ ... w Mexico 1911 Jan. 6, 1912 27,200 236 121 New York 1777, 1822, 1846, 1894 Jan. 1, 1895 80,000 277 210 North Carolina. 1776, 1868, 1970 July I, 1971 \I ,000 34 27 North Dakota . 1889 Nov. 2, 1889 20,564 231 (k) 127 (k) Ohio 1802, 1851 Sept. I, 1851 36,900 248 147

Oklahoma 1907 Nov. 16, 1907 68,800 287 (I) 141 (I) Oregon. 1857 Feb. 14, 1859 26,090 375 192 Pennsylvania 1776, 1790, 1838, 1873, 1968 (m) 1968 (m) 21,675 25 (m) 19 (m) Rhode Island 1842 (c) May 2, 1843 19,026 (a,i) 99 53 South Carolina . 1776, 1778, \790, 1861, 1865, 1868, 1895 Jan. I, 1896 22,500 (n) 648 (0) 463

South Dakota . 1889 Nov. 2, 1889 23,300 190 98 Tennessee 17%, 1835, 1870 Feb. 23, 1870 15,300 55 32 Texas 1845, 1861, 1866, 1869. 1876 Feb. 15, 1876 62,000 499 339 Utah 1895 Jan. 4, 1896 11,000 128 79 Vermont. 1777, 1786, 1793 July 9, 1793 6,600 208 50

Virginia. 1776,1830,1851,1869,1902,1970 July I, 1971 18,500 27 22 Washington 1889 Nov. \I, 1889 29,400 156 86 West Virginia 1863, 1872 April 9, 1872 25,600 107 62 Wisconsin 1848 May 29, 1848 13,500 169 125 (g) W)oming. 1889 July 10, 1890 31,800 101 61

American Samoa 1960, 1967 July I, 1967 6,000 14 7 !'io. Mariana Islands 1977 Jan. 9, 1978 1\ ,000 47 (p) 45 (p,q) Puerto Rico 1952 July 25, 1952 9,281 (a) 6 6


CONSTITUTIONS

GENERAL INFORMATION ON STATE CONSTITUTIONS-Continued

• The constitutions referred to in this table include those Civil War docu~ rnents customarily listed by the individual states.

(a) Actual word count. (b) Eight of the approved amendments have been superseded and are

not printed in the current edition of the constitution. The total adopted does not include five amendments that were invalidated.

(c) Colonial charters with some alterations served as the first constitu-tions in Connecticut (1638, 1662) and in Rhode Island (1663).

(d) Proposed amendments are not submitted to the voters in Delaware. (e) The new Georgia constitution eliminates the need for local amend-

ments, which have been a long-term problem for state constitution makers. (0 As a kingdom and a republic, Hawaii had five constitutions. (g) The figure given includes amendments approved by the voters and

later nullified by the state supreme court 1n Iowa (three), Kansas (one), Nevada (six) and Wisconsin (two).

(h) The figure does not include one amendment approved by the voters in 1967 that is inoperative until implemented by legislation.

(i) The printed constitution includes many provisions that have been an· nulled. The length of effective provisions is an estimated 24,122 words (12,400 annulled) in Massachusetts and, in Rhode Island before the "re-write" of the constritution in 1986, it was] 1 ,399 words (7,627 annulled).

U) The constitution of 1784 was extensively revised in ]792. Figures show proposals and CI.doptions since the constitution was adopted in 1784.

(k) The figures do not include submission and approval of the can· stitution of 1889 itself and of Article XX~ these are constitutional ques-tions included in some counts of constitutional amendments and would add two to the figure in each column.

(I) The figures include five amendments submitted to, and approved by the voters which were, by decisions of the Oklahoma or U.S. Supreme Courts, rendered inoperative or ruled invalid, unconstitutional, or illegal· ly submitted.

(m) Certain sections of the constitution were revised by the limited con· stitutional convention of 1%7·68. Amendments proposed and adopted are since 1968.

(n) Of the estimated length, approximately two·thirds is of general statewide effect; the remainder is local amendments.

(0) As of 1981, of the 626 proposed amendments submitted to the voters, 130 were of general statewide effect and 496 were local; the voters rejected 83 (12 statewide, 71 local). Of the remaining 543, the General Assembly refused to approve 100 (22 statewide, 78 local), and 443 (96 statewide, 347 local) were finally added to the constitution.

(p) The number of amendments is from 1984-1992. (q) The total excludes one amendment ruled void by a federal district

court.


CONSTITUTIONS

Table 1.2 CONSTITUTIONAL AMENDMENT PROCEDURE: BY THE LEGISLATURE

State or other jurisdiction

Alabama. Alaska. Arizona. Arkansas California ..

Colorado .. Connecticut Delaware Florida. Georgia.

Hawaii Idaho Illinois. Indiana. Iowa ..

Kansas Kentucky. Louisiana ... Maine. Maryland.

Massachusetts . Michigan Minnesota Mississippi . Missouri.

Montana. Nebraska. Nevada. New Hampshire . New Jersey ..

New Mexico. New York North Carolina. North Dakota. Ohio.

Oklahoma Oregon ..... Pennsylvania Rhode Island ........... . South Carolina

South Dakota Tennessee . Texas. Utah. Vermont.

Virginia. Washington West Virginia Wisconsin. Wyoming.

American Samoa No. Mariana Islands Pueno Rico.

Legislative vote required for proposal (a)

3/5 213 Majority Majority 213

213 (c) 213 3/5 213

(d) 213 3/5 Majority Majority

213 3/5 213 213 (h) 3/5

Majority (i) 213 Majority 213 (j) Majority

213 (h) 3/5 Majority 3/5 (k)

Majority (m) Majority 3/5 Majority 3/5

Majority (n) Majority (0) Majority 213 (p)

Majority (q) 2/3 2/3 (s)

Majority 2/3 2/3 Majority 2/3

2/3 3/4 2/3 (u)

Constitutional Provisions

Consideration by two Vote required for sessions required ratification

No Majority vote on amendment No Majority vote on amendment No Majority vote on amendment No Majority vote on amendment No Majority vote on amendment

No Majority vote on amendment (cj Majority vote on amendment Yes Not required No Majority vote on amendment No Majority vote on amendment

(d) Majority vote on amendment (e) No Majority vote on amendment No (0 Yes Majority vote on amendment Yes Majority vote on amendment

No Majority vote on amendment No Majority vote on amendment No Majority vote on amendment (g) No Majority vote on amendment No Majority vote on amendment

Yes Majority vote on amendment No Majority vote on amendment No Majority vote in election No Majority vote on amendment No Majority vote on amendment

No Majority vote on amendment No Majority vote on amendment (e) Yes Majority vote on amendment No 2/3 vote on amendment (k) Majority vote on amendment

No Majority vote on amendment (m) Yes Majority vote on amendment No Majority vote on amendment No Majority vote on amendment No Majority vote on amendment

No Majority vote on amendment No Majority vote on amendment Yes (0) Majority vote on amendment No Majority vote on amendment Yes (p) Majority vote on amendment

No Majority vote on amendment Yes (q) Majority vote in election (r) No Majority vote on amendment No Majority vote on amendment Yes Majority vote on amendment

Yes Majority vote on amendment No Majority vote on amendment No Majority vote on amendment Yes Majority vote on amendment No Majority vote in election

No Majority vote on amendment (1) No Majority vote on amendment No Majority vote on amendment


Limitation on the number of amendments submitted

at one election

None None None 3 None

None (b) None No referendum None None

None None 3 articles None None

None None None

None None None None None

None None None None None (I)





None None 3

CONSTITUTIONS

CONSTITUTIONAL AMENDMENT PROCEDURE: BY THE LEGISLATURE-Continued

(8) In all states not otherwise noted, the figure shown in the column refers to the proportion of elected members in each house required for approval of proposed constitutional amendments.

(b) Legislature may not propose amendments to more than six articles of the constitution in the same legislative session.

(c) Three-fourths vote in each house at one session, or majority vote in each house in two sessions between which an election has intervened.

(d) Two-thirds vote in each house at one session. or majority vote in each house in two sessions.

(e) Majority vote on amendment must be at least SO percent of the total votes cast at the election; or, at a special election, a majority of the votes tallied which must be at least 30 percent of the total number of registered voters.

(0 Majority voting in election or three· fifths voting on amendment. (g) If five or fewer political subdivisions of the state are affected. majority

in state as a whole and also in affected subdivision(s) is required. (h) Two-thirds of both houses. (i) Majority of members elected sitting in joint session. (j) The two-thirds must include not less than a majority elected to each

house. (k) Three-fifths of all members of each house at one session, or majori-

ty of all members of each house for two successive sessions. (1) If a proposed amendment is not approved at the election when sub-

mitted, neither the same amendment nor one which would make substan-tially the same change for the constitution may be again submitted to the

people before the third general election thereafter. (m) Amendments concerning certain elective franchise and education

matters require three-fourths vote of members elected and approval by three-fourths of electors voting in state and two-thirds of those voting in each county.

(n) Majority vote to amend constitution, two-thirds to revise ("revise" includes all or a part of the constitution).

(0) Emergency amendments may be passed by two-thirds vote of each house, followed by ratification by majority vote of electors in election held at least one month after legislative approvaL.

(P) Two-thirds of members of each house, first passage; majority of mem-bers of each house after popular ratification.

(q) Majority of members elected to both houses. first passage; two- thirds of members elected to both houses. second passage.

(r) Majority of all citizens voting for governor. (s) Two-thirds vote senate, majority vote house, first passage; majority

both houses, second passage. As of 1974, amendments may be submitted only every four years.

m~~t(~i~~iU ~~. d:~r:{~~~ ~~t~hea~~~~r:~~' f~rv~~~~~:l.st submit amend-(u) If approved by two-thirds of members of each house. amendment(s)

submitted to voters at special referendum; if approved by not less than three-fourths of total members of each house, referendum may be held at next

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