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Feb. 5, 2024 | By: Rudi Keller - Missouri Independent
By Rudi Keller - Missouri Independent
Every vote cast on a constitutional amendment would be counted two ways under a proposal Missouri Republicans are trying to push to an August vote.
The first way would be the traditional method, where all the votes are tallied to determine if the ballot measure has a statewide majority.
The second way would be to determine whether the proposal has a majority in 82 Missouri House districts, the same number it takes to pass a bill in the 163-member chamber.
Called a concurrent majority, proponents argue it will require measures to have broad support to win at the polls instead of concentrated support in the most populated parts of the state. An analysis of voting patterns by The Independent shows that the change would make it mathematically possible for as few as 20% of voters to determine the outcome of statewide ballot measures.
“This will change the way we actually campaign on these issues,” said Tim Jones, state director of the Missouri Freedom Caucus, the group of GOP senators who have demanded initiative petition changes in order to allow the chamber to function. “This to me is a very similar concept to the electoral college.”
The proposal is taking on new urgency for GOP leaders because a proposal to overturn Missouri’s abortion ban could be on the ballot in November. Republicans see changing the rules as the only way to defeat it.
Opponents claim the idea undermines majority rule, which has determined the outcome of constitutional questions in Missouri since 1846.
“Their goal is to make sure that if an overwhelming majority in urban areas supports a measure, the rural voters can defeat it nevertheless,” said Chuck Hatfield, an attorney representing Protect Majority Rule, which is raising money for a possible campaign against the amendment.
The proposal represents a shift in tactics from last year, when the favored proposal would have simply increased the majority needed to pass constitutional amendments from half the vote plus one to as much as two-thirds. Voters in Arkansas in 2022 and Ohio in 2023 soundly rejected increasing the majority needed in those states.
“Raising the threshold is a loser and various states have proven that’s a loser,” Jones said.
The Missouri Senate is expected this week to debate the proposed constitutional amendment after a month of factional warfare over when it would reach the floor and which lawmaker’s proposal will be debated.
The Freedom Caucus originally demanded not only for the proposed changes to be fast tracked to the full Senate, but according to emails obtained by The Independent through Missouri’s Sunshine Law, also wanted one of its members to carry the bill.
Instead, the measure to be debated is sponsored by state Sen. Mary Elizabeth Coleman, a candidate for Congress who has sided with leadership in the factional disputes.
Democrats in the Senate, who have been content to let the GOP civil war play out without interfering, are “vehemently” opposed to any effort to alter the use of a majority for ballot measures, Senate Minority Leader John Rizzo, a Democrat from Independence, told reporters last week.
“We are not for taking away people’s voice at the ballot box,” Rizzo said. “And the fact that that is… the top priority of the Republican Party when all these other issues are on the table, shows you exactly what the Republican Party thinks of people voting.”
Determining what, if any, impact such a proposal would have had on the outcome of recent constitutional amendments is difficult. There are no compiled official records of the outcome of constitutional amendments by Missouri House district.
Voters have approved three constitutional amendments with majorities of 53% or less in the 2020 and 2022 election cycles — two proposed by initiative and one placed on the ballot by lawmakers..
A constitutional amendment legalizing adult use marijuana received 53.1% statewide in 2022. It passed in counties that have all or part of 95 House districts.
An expansion of Medicaid coverage to adults aged 18-64 received 53.3% in 2020, winning in counties with all or part of 86 House districts.
Revisions to the legislative redistricting process won with 51% statewide in 2020 and passed in counties with all or part of 89 House districts.
But because some districts are less than a full county, or cover multiple counties, no precise conclusions can be drawn.
One effort, by the person behind a social media account named Missouri Mapper, used precinct results, aligning those records with legislative district boundaries, for the marijuana initiative petition in 2022. The calculations concluded it would have passed if concurrent majorities were based on state House or Senate districts and failed if it needed a majority of congressional districts.
The proposal set for Senate debate wouldn’t just change how constitutional amendments are approved. There are several other provisions, added as “ballot candy,” to entice voter support.
The extras in the Senate proposal include barring non-citizens from voting on constitutional amendments, something that hasn’t been allowed in Missouri since 1924, as well as banning foreign governments or political parties from sponsoring or spending in support of initiatives, a practice banned by federal law.
There is also a prohibition on initiatives to allow lobbyists to make gifts to lawmakers.
All three of those items will be listed ahead of changes to the majority requirements in the language voters would see if lawmakers send it to a statewide ballot.
“Concurrent majority ratification by itself will not carry this to victory,” Jones said. “It’ll have to be what the left usually does is have an initiative petition, but call it something else. So there will be proposals that this also include a prohibition on non-citizen voting, something of that sort.”
Amendments history
The first time Missourians voted on alterations to the state constitution was Aug. 3, 1846, when the white male electorate rejected an entirely new charter to replace the state’s founding document.
A majority of 57% voted against the proposal of a state constitutional convention, leaving the original method of amending the constitution in place until 1865.
For 45 years, approval by voters was indirect. If two-thirds of state lawmakers agreed on an amendment, it was published in newspapers repeatedly across the state prior to the next general election. If two-thirds of the lawmakers then elected also approved the change, it was added to the constitution.
In 1865, voters approved a new constitution abolishing slavery. The 1865 “Drake Constitution,” written by what were called Radical Republicans, took the vote away from former Confederates and extended it to immigrants who were not yet citizens but who had declared their intent to become one.
The provision rewarded the largest immigrant group in Missouri at the time, Germans, who were among the most anti-slavery, and therefore Radical Republican voters. The franchise was taken away from non-citizens in 1924, when newcomers were more likely to come from eastern and southern Europe, in an amendment proposed by a Constitutional Convention passed with 53.5% of the vote.
Taking away the votes of immigrants who had declared their intent to become citizens was favored heavily in large population centers like St. Louis, where it received more than 75% in the city and county, but it did not have broad support statewide. The majority in the city of St. Louis alone exceeded the majority statewide by almost 5,000 votes. It failed in at least 84 of Missouri’s then-151 House districts, which would have defeated it under the proposed concurrent majority standard.
The 1865 Constitution also provided for a direct vote on constitutional amendments for the first time, with a majority needed for approval. That has remained unchanged.
Missouri voters in 1908 approved, by majority vote, a legislative proposal to allow use of the initiative petition process to add amendments, enact statutes or subject legislative enactments to a referendum.
The method of securing a spot on the ballot and the majority needed for passage have remained essentially unchanged.
What has changed is what is being put in the constitution. In 2010, with backing mainly from the Humane Society of the United States, voters approved a new law regulating dog breeders, with a key provision limiting the number of breeding dogs. Missouri lawmakers responded the next year by changing key provisions, including removing the cap on the number of dogs allowed.
Since then, the strategy for groups pushing initiatives has been to put their ideas in the state constitution, where only another statewide vote can change what has been enacted.
“It was the puppy mills that got everybody to wake up and say, ‘Oh, we better not do it by statute, we better do it by constitution,’” said Michael Wolff, a former Missouri Supreme Court chief justice and dean emeritus at St. Louis University School of Law.
As a result of the tactical switch, some very long amendments have been added to the constitution over the last decade in order to prevent legislators from rolling them back.
Critics argue most of those changes should properly be state statutes.
The state constitution approved by voters in February 1945 was just under 27,000 words long. The medical marijuana amendment, approved in 2018, was almost 8,000 words. Legalizing recreational marijuana in November 2022 added 14,000 words in a new section and 2,000 more for revisions to the medical marijuana section.
Majority math
Not everyone who wants to raise the bar for approving constitutional amendments is sold on the idea of concurrent majorities.
Secretary of State Jay Ashcroft, a candidate for governor, said he’s got a simple standard that legislation must meet.
“It should be something that makes sure that if we’re amending our Constitution, it’s what the people of Missouri want and has broad agreement,” Ashcroft said. “If what they do supports making sure Missourians broadly are making that decision, I’m fine with that.”
The key to understanding how concurrent majorities work is to know that the votes in districts that support a measure can be overwhelming, even 100%. But if it fails by a single vote in enough districts, it would thwart the statewide majority.
“I have not done the math on that,” Jones said. “People that I trust have done the math on that and they assure me that if it is a concurrent majority by House districts, that is better for folks on the right side of the political spectrum.”
The Independent performed calculations using election results available on the Missouri Secretary of State’s website.
Over 163 Missouri House districts, the total vote varies widely from election to election.
In November 2020, there were 2.76 million votes cast in state House races, with the fewest, 7,026, in the 19th District in Jackson County. The largest vote was 27,205, in the 16th District just across the Missouri River in Clay County.
To achieve a majority – 50% plus one vote – in the 82 districts with the fewest votes required just over 574,000 votes, or 20.7% of the total vote cast in all House districts.
In the November 2022 election, there were 1.87 million votes in state House races. The smallest vote in a House race was 3,671, in the 121st District in Pulaski County in south central Missouri. The largest was 18,150 votes, in the 90th District in St. Louis County.
To achieve a majority in the 82 districts with the fewest votes required just over 379,000 votes, or 20.2% of the total vote cast in all House districts.
A slightly larger percentage of the statewide vote, approximately 23%, could theoretically control the outcome if the concurrent majority requirement uses the state’s eight congressional districts. In that scheme, a vote against an amendment in four districts would be enough to defeat it statewide.
Is it legal?
There is an instance in Missouri where a concurrent majority is already used, but it is not the final say on an issue. When a city seeks to annex an area and there is opposition in the region to be added, it goes to a vote, with the city and the area to be annexed voting separately.
If there is a disagreement between the results where the city approves annexation and the area to be annexed does not, a second vote is held where the results are combined and a final decision, based on a two-thirds majority of the whole, is made.
But the question of whether the concurrent majority requirements under debate would be allowed by the courts presents problems that the annexation law doesn’t encounter. The most important, attorneys contacted by The Independent said, is the varying number of votes in each district.
Wolff, the former state Supreme Court judge, said he’s uncertain whether the courts would think it is more important that the districts are nearly equal in population or that the equality of people doesn’t result in similar numbers of votes.
The question will, he and others said, almost certainly be decided in federal court.
“I don't know where the U.S. Supreme Court's gonna go on this because the current court goes back and looks at well, what was the intent of the framers of the Constitution?” Wolff said.
In 1963, the Supreme Court threw out a concurrent majority law in Georgia that required statewide candidates to win in a majority of counties to be nominated in primaries. That case involved units that varied widely in population.
“The logic there is that you cannot allow some people's vote to count for more than others,” said Hatfield, the attorney for opponents of the proposed initiative petition changes.
That same logic would make a concurrent majority to approve constitutional amendments unconstitutional, Hatfield said.
“Those 20% of the people are essentially getting two votes each and they can defeat my one vote,” Hatfield said. “If you happen to live in your smallest House district, you get two votes and you can defeat my one vote. That's the problem.”
The other legal question is whether concurrent majorities would apply to constitutional amendments set for the November ballot if voters agree to it in August.
Unless they state otherwise, constitutional amendments go into force 30 days after voter approval.
That date, in early September, would be after the November ballot has been certified by Ashcroft. Signatures are already being gathered for several initiative petition campaigns and are due in May.
“Is this changing the rules of the game after it has begun?” Wolff said. “That's certainly going to be an interesting piece of litigation, isn’t it? I don't know. I would think that (the new majorities would apply), but the question as well is, when did the game begin?”
Hatfield said the question is a closer call for him than his expectation that concurrent majorities would ultimately be found unconstitutional.
“It's a close call, honestly,” Hatfield said. “So if you pass this in August, it's effective 30 days later. It is the law. And so if some initiative gets voted on in November, arguably that law applies.”
That is how Ashcroft, who will oversee both elections, views it. But he also is sure his opinion won’t be the final word.
“This sort of thing,” he said, “will eventually be decided by the courts.”
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