by Rudi Keller, Missouri Independent
Since the start of 2003, Missouri voters have amended the state constitution 26 times.
They approved a mix of conservative and liberal ideas that include making English the state’s official language, prohibiting same-sex marriage, legalizing medical marijuana and expanding Medicaid eligibilty. The conservative ideas generally flow from the Republican-led General Assembly; the liberal proposals often take the initiative petition route.
But nearly 1,750 proposals never reached the ballot, victims of legislative inaction or failure during the expensive and time-consuming chore of gathering signatures.
This fall, voters have a once-in-20-years chance to bypass both the General Assembly and the initiative petition process. Because of an automatic referendum clause, voters in the Nov. 8 election will be asked if Missouri should hold a Constitutional Convention, with power to submit an entirely new constitution or a series of amendments.
If the convention is approved, it will set off a potentially heated fight to shape the convention’s outcome in the elections that will choose 68 delegates from partisan state senate district balloting and 15 nonpartisan at-large delegates in a statewide vote.
The power of a Constitutional Convention is beyond the reach of the governor or the legislature. No veto can block its work and no sanction is needed from lawmakers.
“When a convention is assembled, it has all the power that the people could have if they had all assembled in one vast plain, unless there has been some limitation upon the power,” Hamilton Gamble, a former Missouri Supreme Court judge, said to the 1861 State Convention called to consider whether Missouri should secede from the Union.
Instead of seceding, that body threw the Confederate-sympathizing governor and General Assembly out of office. Gamble was selected as provisional governor.
If voters agree in November to convene a constitutional convention, it won’t have that much power. The limit will be any idea supported by a majority of the 83 delegates that doesn’t violate the U.S. Constitution.
The current constitution is in need of revision, said Bob Priddy, retired after a career as news director for Missourinet and a past president of the State Historical Society Board of Trustees.
“In the last 20 years,” Priddy said, “there has been a lot of stuff added to the constitution that shouldn’t be there.”
The state constitution approved by voters in February 1945 was just under 27,000 words long. An amendment protecting stem cell research, added by initiative in 2006, was about 2,000 words long. The medical marijuana amendment, another initiative approved in 2018, is almost 8,000 words.
The thought of bypassing both regular paths to constitutional revision is an attractive idea, said former state archivist and historian Ken Winn. But the divisive nature of current politics makes him question if now is the time.
“A constitutional convention right in the middle of a culture war would bring out ideologues of all stripes, and you would have the fiercest political strife,” Winn said. “Everybody with an agenda would be trying to write their ideas into the constitution.”
The 77 years since the current constitution was enacted is the longest period in state history without a new document.
The automatic referendum is similar to that used in 13 other states. Since the adoption of the 1945 Constitution, Missourians have voted three times, in 1962, 1982 and 2002, on the question of whether to hold a convention.
The “yes” side on the last vote was less than 35%.
Legislation on a fast track in the Missouri House would make it harder to put initiatives proposing constitutional amendments on the ballot and require a supermajority of voters to approve them.
State Rep. Mike Henderson, R-Bonne Terre, wants to require petitioners to collect signatures from 10% of the registered voters in all eight congressional districts. To become part of the constitution, two-thirds of voters would have to agree.
Henderson’s proposal could be debated as early as this week in the Missouri House. If passed in both chambers, it would become part of the constitution on a simple majority vote, as has every other amendment — and full constitution — considered favorably by voters.
Currently, an initiative proposing a constitutional amendment needs signatures from 8% of registered voters in two-thirds of the state’s congressional districts. That is the standard chosen by lawmakers who offered initiatives as a constitutional amendment in 1908.
Because the constitution can only be changed by a vote, putting an initiative idea in the constitution protects it from lawmakers who may not like the policy enacted. That played out last year on Medicaid expansion, when the General Assembly tried not to fund it, and in 2020 on legislative redistricting, with lawmakers sending a successful proposal to the ballot to gut an initiative passed in 2018.
Requiring a supermajority to approve constitutional amendments would make Missouri just the seventh state to have a threshold higher than a simple majority.
“We have one of the easiest procedure processes in the country for amending our constitution,” Henderson said during a January hearing on his proposal.
If passed as written, Henderson’s proposal would increase the number of signatures needed to qualify a constitutional amendment for the ballot by 75%, from just over 170,000 to a little more than 300,000.
During a Jan. 26 hearing on a similar proposal, lobbyist Sam Licklider of the Missouri Realtors Association said getting an initiative to the ballot is not easy.
“You don’t just wake up one morning and say I am going to amend the constitution,” Licklider said. “Well, you can, but you will fail.”
It is a time-consuming, expensive process, Licklider said.
“You have got to have a fairly large, robust organization in order to get through all of the pitfalls that are there right now,” he said.
The House Elections and Elected Officials Committee was hearing a proposal from state Rep. David Evans, R-West Plains, that would, along with making changes similar to Henderson’s legislation, prohibit people who don’t live in Missouri from working as petition circulators.
“Many people in this state believe that there are special interest groups outside the state of Missouri funding many of those,” Evans said.
State Rep. Joe Adams, D-University City, told Evans that proposals making it harder to petition for an amendment are a reaction to ideas Republicans don’t like.
“I see these ideas as a way to prevent citizens from getting a change,” Adams said.
Some of the most enduring parts of the state constitution resulted from initiative campaigns. The Conservation Commission, created in 1936 with authority over the fish, wildlife and forestry resources of the state, and the sales tax passed in 1976 that supports it, are examples. So is the Nonpartisan Court Plan, enacted in 1940.
And so is the provision that requires the regular vote on a Constitutional Convention, enacted in 1920.
In the first election asking voters to authorize a convention, 58% voted yes.
Over the next 18 months, from May 1922 to November 1923, the convention produced 21 amendments. In a special election held in February 1924, voters approved seven.
One of the most significant changes took away voting rights from immigrants who had declared their intent to become citizens. The amendment struck down a right foreign-born residents of Missouri had enjoyed since it was included in the 1865 constitution that also abolished slavery in the state.
The second election on whether to hold a Constitutional Convention, in November 1942, also won support from 58% of voters.
The previous year, voters had been treated to the spectacle of a Democratic legislature refusing to accept the election of a Republican governor, with the impasse ultimately resolved by the Missouri Supreme Court. Many reformers thought the state was locked into the post-Reconstruction 1875 Constitution that did not meet modern needs.
In an interview, Winn said the 1875 Constitution “was so constricting it almost made state government unfunctional.”
After the affirmative vote, reformers hoped for a liberal gathering. But political parties, with control over nomination of most delegates, selected a body that was not held in high esteem.
“Many candidates, for example, were chosen simply as a reward for long party service,” Winn and Paul Otto, former chief hearing officer of the Missouri Personnel Advisory Board, wrote in a 2016 Missouri Historical Review article. “This, along with the noncompetitive elections that followed, led to the convention’s initial reputation as a gathering of the state’s political hacks.”
The delegates themselves, however, saw themselves as representative of the state.
“That image would be true if Missouri were a late-middle-aged Protestant white man from a small rural community,” Winn and Otto wrote.
There were two women — four women were delegates to the 1922 Convention — and a few Catholics. There were no Jews and no Blacks.
The Democratic State Committee, Winn and Otto wrote, issued a press release soon after it began meeting that “concluded that the crooks and incompetents running the convention could not win electoral approval for the Ten Commandments, much less draw up a viable new constitution.”
The document produced by the convention was long, but when delegates finished, Winn and Otto wrote, “the vilification had ended, but reformers felt no sense of triumph. Still, the newspapers recommended voting for it, as if swallowing the soggy half-loaf was better than not eating at all.”
The new constitution retained the initiative process, modified with a prohibition on direct appropriations of state funds, along with the Conservation Commission, the Nonpartisan Court Plan and regular referendums on another convention.
The upcoming vote
The provision sending voters the question of whether to hold a constitutional convention is obscure enough that some political operatives who started working since the last vote don’t know about it.
It isn’t listed yet on the ballot measures certified for the November ballot, but Secretary of State Jay Ashcroft has months before that routine action must be taken.
State Rep. Peggy McGauh, R-Carrollton and former clerk of Carroll County, said she thinks it is time for a convention.
“We need a constitution that will help us move forward,” said McGaugh, who is vice-chair of the elections committee.
But voters need education on what they are voting on, she said.
“What I remember is massive confusion” in 2002, she said.
A convention would consider everything about how the state is governed. Along with a Bill of Rights and stating the qualifications, power and limitations on state officials, the constitution organizes the executive branch, describes the organization of local governments, states who is eligible to vote and directs when elections occur.
There are articles on education, taxation, corporations and the process of amendment.
And, Winn said, it is loaded down with policy directives like medical marijuana and campaign contribution limits that in the past were done by statute, mainly because of mistrust of the legislature.
“The 1945 constitution is a mess in that there have been a lot of amendments to it and it has grown like Topsy,” Winn said.
Adams, a retired history professor, agrees with Winn that the time is not ripe for a constitutional convention because of the bitterness and factionalism in modern politics.
“I’m fearful of who would be in that convention,” Adams said. “Being a representative and seeing some of the ideas that have floated around as possibilities, I’m fearful that that convention could be stacked and we could have a very strange document coming down.”
Priddy said he sees a convention deluged by lobbying interests to make special provisions in any new document.
“If there is a convention called, it is going to be a very high pressure situation,” he said, “because there will be so many people who have something they want to put in the constitution.”
Former Missouri Supreme Court Judge Michael Wolff said there is a good argument for revising the constitution. But he’s not ready to support the idea.
Voting yes is a good way to register dissatisfaction, he said.
“Whenever that thing is on the ballot about having a Constitutional Convention, I always vote yes,” Wolff said, “unless it comes to a point where I think it might pass, and then I will vote no.”
How would a convention work?
Voters will be faced with a question on the November ballot: “Shall there be a convention to revise and amend the constitution?”
If a majority of Missourians vote “yes,” it would trigger the process of selecting 83 delegates.
Gov. Mike Parson would be responsible for the first step, calling an election in “not less than three nor more than six months” — in other words as early as February or as late as May 2023.
The political party committees for the state’s 34 Senate districts would each be allowed to nominate one candidate to carry the party label in the election. There are five recognized political parties in the state – Republican, Democratic, Libertarian, Green and Constitution – with authority to make nominations.
No independent candidates are allowed in the district elections, where the top two vote-getters go to the convention.
There are 15 at large delegate positions, elected on a nonpartisan ballot. Anyone who wanted to run for an at-large slot would seek nomination by circulating a petition within their home state Senate district. The 15 candidates receiving the highest number of votes statewide would be seated.
After the election, the governor sets a date, within six months, for convention to begin in Jefferson City. The legislative chambers and workspaces are given over to its use.
The constitution sets no time limit on deliberations. The pay, unchanged since the 1865 Constitution, is $10 per day, plus the same mileage rate paid to lawmakers for travel to and from Jefferson City.
The convention’s work can be presented to voters as a whole package, or as a series of amendments to be voted on individually. The election, on a date set by the governor, would be as early as 60 days or as long as six months after the convention adjourns.
The section describing the operation of the convention leaves virtually everything about managing the convention to the delegates themselves. They set their own rules, settle contested elections, hire staff and appropriate money to cover their expenses.
There is only one very specific requirement.
“The sessions of the convention shall be held with open doors,” the constitution states.