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Chapter II. State Constitutional Obstructions Mary Summer Boyd

At its last session the Arkansas Legislature passed a Woman Suffrage bill by a generous majority; in Kentucky a bill passed both houses and one house in five other states. One of these was Arkansas where a constitutional provision that only three amendments can be submitted to the people at once rendered of no avail the passage of the Legislature. In the five other states the enormous Constitutional majorities required in a legislative vote on amendments defeated the measure.

This is the story of a typical year and these are two of the difficulties which beset the gaining of suffrage “state by state.” Year after year labor is thrown away and money wasted because actual minorities in legislatures can defeat constitutional amendments; or because once past the legislature, constitutional technicalities can keep them away from the polls; or because, safely past these hazards, a minority vote of the people can defeat a bill that has successfully reached the polls.

Theoretically an amendment to a state constitution must have the approval of the Legislature, ratified by the approval of the people. This ratification is what differentiates it from a statutory law. This is the actual requirement, however, in but two of the male suffrage states, South Dakota and Missouri. In all the rest, except Delaware and New Hampshire, which have special methods of amending, much more than simple passage and ratification is required.

There are some half-dozen classes of technical requirements which make the amending of many state constitutions wellnigh impossible. Some states have never been able to amend; others have had to submit the same amendment again and again before it passed, even in the case of measures which were not unpopular. The Legislatures of Nebraska and Alabama have occasionally succeeded in passing amendments favored by politicians, by resorting to clever tricks to circumvent the constitutional handicaps. Only by outwitting the framers have they been able to make changes in their constitutions.

Among the common technical requirements are the passing by a set proportion much larger than a mere majority of the legislature; the passing of the people's vote by a majority of those voting for candidates and not merely of those voting on the amendment itself; the setting of special time and other limits for the submission of amendments, etc. Many states combine three or more of these requirements.

No impediment seems more vexatious than that which prevented the Arkansas bill from coming before the people after the Legislature of 1915 had approved submission. Nor is Arkansas alone in limiting the number of amendments to be submitted to the people at one time; Kentucky goes farther and makes the limit two and Illinois allows but one at a time.

The other six states whose bill failed at the last session belong to a group of fifteen which require a special “constitutional majority” of two-thirds or three-fifths favorable in the vote of both houses on an amendment bill. [2]* In South Carolina and Mississippi it must pass two legislatures by this large vote, one before and one after the referendum; in Mississippi this means four year's delay for its sessions are quadrennial. In thirteen states the amendment bill must pass two legislatures, in some by a constitutional majority at one passage. [3]†

Alabama is one of the states whose bill failed through the constitutional majority rule in 1915. In that state another suffrage bill must wait four years for the next legislative session. If this time it surmounts the hazard of a three-fifths favorable vote it will be faced by another hazard; for Alabama is one of nine states in which an amendment must pass the referendum not by a majority on the amendment but by a majority of all voting for candidates at this general election. [4]*

This requirement by itself is regarded by one authority on the state constitutions [5]† as making amendment practically impossible for it means that the indifference and inertia of the mass of the voters can be a more serious enemy than active opposition; the man who does not take the trouble to vote is as much to be feared as the man who votes against.

A majority vote is required by the constitution of Indiana that is so extravagant as to have caused contradictory decisions in the courts. The constitution reads: “The General Assembly * * * (shall) submit such amendment * * * to the electors of the state, and if a majority of said electors shall ratify.” This was interpreted in one case (156) Ind. 104) to mean a majority of all votes cast at the election, but in a later case (in re Denny) it was taken, exactly as it reads, to mean all the people in the State eligible to vote—and this in the face of the fact that the number of people eligible to vote is unknown even to the Federal Census Department. Indiana also requires that while one amendment is under consideration no other can be introduced. She is, needless to say, one of the states whose constitution has never been amended.

Other states besides Indiana have time requirements to insure the immutability of their inspired state document. Thus the Vermont Constitution can be amended only once in ten years—it was last amended in 1913—and five others set a term of years before the same amendment can be submitted again. Among these are New Jersey and Pennsylvania, which having submitted the Woman Suffrage amendment in 1915 cannot do so again till 1920. [6]*

In no state is the Constitution so safeguarded from change as in New Mexico, whose iron-bound rules are in a class by themselves. For the first twenty-five years of statehood a three-fourths vote of both houses of the Legislature ratified by three-fourths of the electors voting, with two-thirds at least from each county, will be required to change the suffrage clause. After twenty-five years the majority will be reduced to two-thirds. This is the state whose Constitution provides that illiteracy shall never be a bar to the suffrage; her democracy falls short only in the matter of women whom she makes it constitutionally impossible ever to add to her electorate.

Where constitutions can be revised by the convention method as well as by amendment there is some hope; if amendment fails revision holds out a chance. But twelve states [7]† hold no constitutional conventions; in Maryland conventions are twenty years apart and in many other states it is as difficult to call a constitutional convention as to revise the Constitution by amendment.

New Hampshire amends by constitutional convention alone and these conventions are held infrequently.

Only in Delaware is the Constitution amendment to-day by act of the Legislature without the people's vote and without any technical requirements except a large Legislative majority.

Yet in twenty-four states [8]* before the Civil War the foundations of male suffrage were laid by legislature or constitutional convention alone, and in many cases, furthermore, the conditions of suffrage were dictated by the Federal Government. Even as late as the ‘90's five State Constitutions were adopted, suffrage clause and all, by State Legislatures or constitutional conventions without the referendum. [9]†

In the other states universal male suffrage came easily at a time when thinly populated states wanted to hold out inducements to male immigrant labor. To-day any male once naturalized, and in some states before he is naturalized, becomes automatically a voting citizen of any state in the Union after he has fulfilled the state residence requirements and, in some states, an educational requirement.

The one word “male” shut women out in the old days from these easy avenues to citizenship and to-day her path by the state by state method is beset by almost insuperable difficulties.

1

* Table of difficulties in each state is to be found in the Appendix.

2

* South Carolina, Georgia, Illinois, Maine, Michigan, West Virginia, Louisiana, Texas and Mississippi—all a two-thirds vote, and Alabama, Florida, North Carolina, Ohio, Maryland and Kentucky a three-fifths vote.

3

† In Connecticut, Massachusetts, Tennessee, Vermont by a two-thirds majority of one Legislature or of one house or both; in Iowa, Indiana, North Dakota, Pennsylvania, Virginia, Wisconsin, New Jersey, New York and Rhode Island by majorities. All but the last three have biennial Legislatures.

4

* These states are Arkansas, Illinois, Minnesota, Mississippi, Nebraska, Oklahoma, Rhode Island and Tennessee. Rhode Island sets a definite majority (three-fifths) of those voting at the election. Probably Texas and North Carolina should be included but the amendment clause in their constitutions is misleading and they may be given the benefit of the doubt; their clause reads: “An amendment shall be submitted to the voters and adopted by a majority of the votes cast.”

5

† Dodd, W. F. Revision and Amendment of State Constitutions.

6

* The five states are Illinois (four years, Pennsylvania, New Jersey and Kentucky (five years), and the Tennessee (six years.)

7

† Louisiana, Texas, Mississippi, North Dakota, Arkansas, Connecticut, Indiana, Massachusetts, New Jersey, Pennsylvania, Rhode Island and Virginia.

8

* New Hampshire, South Carolina, Virginia, Pennsylvania, North Carolina, Georgia, New York, Rhode Island, Connecticut, New Jersey, Delaware, Maryland, Vermont, Kentucky, Florida, Tennessee, Ohio, Louisiana, Indiana, Mississippi, Illinois, Alabama, Missouri and Arkansas.

9

† Many reconstruction constitutions also but these were not permanent. The five constitutions in the 90's were Mississippi, South Carolina, Delaware, Louisiana and Virginia, and Kentucky made changes after the constitution had been submitted.


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