State ratifying conventions
State ratifying conventions are one of the two methods established by Article V of the United States Constitution for ratifying proposed constitutional amendments. The only amendment that has been ratified through this method thus far is the 21st Amendment.
Constitutional text
Article V reads in pertinent part (italics added):
The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths thereof, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress....
Use of the convention ratification option
Ratification of a proposed amendment has been done by state conventions only once—the 1933 ratification process of the 21st Amendment.[1] The 21st is also the only constitutional amendment that repealed another one, that being the 18th Amendment, which had been ratified 14 years earlier.
As is true for a state legislature when ratifying a proposed federal constitutional amendment, a state ratifying convention may not in any way change a proposed constitutional amendment, but must accept or reject the proposed amendment as written.
Purpose
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The convention method of ratification described in Article V is an alternate route to considering the pro and con arguments of a particular proposed amendment, as the framers of the Constitution wanted a means of sometimes bypassing the state legislatures in the ratification process.
To some extent, the convention method of ratification loosely approximates a one-state, one-vote national referendum on a specific proposed federal constitutional amendment, thus allowing the sentiments of registered voters to be somewhat more directly felt on highly sensitive issues. The theory is that the delegates of the conventions—who presumably would themselves be average citizens—might be less likely to bow to political pressure to accept or to reject a given amendment than would be the case with state legislators. The United States Supreme Court has ruled that a popular referendum is not a substitute for either the legislature or a ratifying convention—nor can a referendum approve of, or disapprove of, a state legislature's, or a convention's, decision on an amendment (Hawke v. Smith, 253 U.S. 221, [1920]). This ruling was challenged in Arizona State Legislature v. Arizona Independent Redistricting Commission, in which the United States Supreme Court defined the term "legislature" broadly to include "the power that makes laws", which the court held included direct lawmaking by the people of the state.[2] The majority opinion stated that the Article V use of the term "legislature" applied only to the representative body of the states as a "federal" function, as opposed to a "state" function of the legislature as prescribed in Article 1, Section 4 of the U.S. Constitution. This conflict over the interpretation of the word "legislature" creates potential constitutional questions over the role that popular referendums could play in state ratifying conventions.
New Mexico law provides that the members of its legislature would themselves be the delegates and form such a ratifying convention—if Congress were to again select that particular method of ratification. The issue having never come before the federal courts, it is unknown whether this New Mexico state law violates Article V.
Applicable state laws
In a state's legislature, the ratification method is procedurally simple—merely propose a resolution, memorial, or proclamation of ratification and vote it up or down in each chamber of that state legislature. But using the convention method of ratification is a bit more complicated because it is, by necessity, separate and different from a state legislature. As early as the 1930s, state lawmakers enacted laws to prepare for the possibility of Congress specifying the convention method of ratification. Many laws refer to a one-off event, with an ad-hoc convention convened solely for the purposes of the 21st amendment. Other laws, however, provided guidelines for ratifying conventions in general.
Vermont example
Once Congress has proposed a federal constitutional amendment which Congress specifies is to be ratified by the convention method, Vermont's governor has 60 days to call for an election of delegates to that convention, and the setting of a date for those elections.[3] Note that the Vermont code does not contemplate the calling of ratifying conventions from a national amendment convention, though the same procedures would likely be followed.
Fourteen persons are elected to be members of the ratifying convention. Those 14 would be elected statewide, meaning that each voter would cast votes for fourteen people, with the top fourteen vote-getters being elected. The election must take place from three to twelve months after the governor's call. The convention must begin 20 to 30 days after the election. The convention itself is held in the Senate chamber in the state capital.
The candidates who are seeking to become delegates are selected from a list of 28 possible Vermont citizens. All 28 candidates are selected by the governor, lieutenant governor, and speaker of the house. The persons selected must agree to be placed on the ballot - 14 of whom are opposed to ratification, 14 of whom are in favor. The ballots are to be plainly marked so that voters can decide based on the candidate's stand on the issue, or on name recognition. The state has 14 counties - each county is to have one "pro" and one "con" candidate. Voters can vote for all "For" or all "Against", or any combination thereof.
The elected delegates meet on the appointed date, with the majority of those elected being a quorum. The Vermont code does not detail how the convention is to conduct its business aside from the fact that there will be a chairman and that the secretary of state will be the secretary of the convention, and those two persons will certify the results of the convention's vote. The convention might only last 15 minutes, or it could drag out for several days for debate. However long the convention takes, delegates are provided a stipend of $10.00 and reimbursement of actual expenses.
Florida example
In Florida, the convention is made up of 67 members.[4] The governor has 45 days to call an election to be held from five to ten months after Congress proposes the constitutional amendment. Anyone can apply to be a member of the convention, with the state qualifications for the Florida House of Representatives used as an eligibility test. Candidates can officially declare that they are "for" or "against" the proposed amendment, or they may apply as unannounced. An application fee of $25 and a 500-name petition are also required. On the ballots, candidates are listed in three categories: "for", "against", and "undecided".[4] There is also provision for write-in candidates. The vote is at-large, meaning that the 67 top vote-getters statewide win the 67 seats in the convention. The convention begins on the second Tuesday following the election. Delegates are not compensated per diem or for expenses.
New Mexico example
The procedure in New Mexico is vastly different. To start, the governor has only 10 days to call a convention—with each sitting member of the New Mexico Legislature automatically a delegate to the convention.[5] Therefore, no special election is ever called for determining delegates. The convention is held in the chamber of the House of Representatives. New Mexico's code provides that, after three days, compensation to delegates will end.
References
- Everett S. Brown, Ratification of the Twenty First Amendment to the Constitution of the United States: State Convention Records and Laws (Ann Arbor: University of Michigan Press, 1938).
- "Court documents" (PDF). www.supremecourt.gov. 2014. Retrieved 2020-06-19.
- 17 VSC 1811 - 1825
- "Statutes & Constitution :View Statutes : Online Sunshine". www.leg.state.fl.us.
- 1-18-1 of the New Mexico Code