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VOL. 38 | NO. 44 | Friday, October 31, 2014

Changing state constitution no easy task

By Sam Stockard

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Amending Tennessee’s Constitution isn’t as rare as it was in the state’s first 200 years, and yet it remains a tough, drawn-out task, even if the most popular process, the legislative method, is used.

And if you’re backing an amendment, just when you think you’ve won, you still could fall short of the number of votes needed because of one last hurdle.

Not only does it take two sets of votes by the General Assembly and a majority vote of Tennesseans to pass a constitutional amendment, but the ultimate number of ‘yes,’ votes must be greater than half the number of votes cast for governor.

For that reason, Tennesseans can double their influence on passing constitutional measures by voting for an amendment in the referendum and then not casting a gubernatorial vote.

Conversely, they can vote against an amendment and cast a vote in the governor’s race, whether they prefer a candidate or not, to double their impact at the ballot box.

U.S. Rep. Steve Cohen, a Memphis Democrat who served for years in the General Assembly, was well aware of the difficulty of passing an amendment when he sponsored legislation that amended the state Constitution to set up the Tennessee lottery for education. He worked on it for 18 years, shepherding it through the Senate and House before it finally passed in 2002.

Even though the idea of a lottery was popular, it still had to outpace the governor’s race when Phil Bredesen and former U.S. Rep. Van Hilleary ran for office.

“It’s not an easy process,” Cohen recalls, noting people who vote in the governor’s race raise the threshold for the number of votes needed to pass a referendum and those who don’t participate lower the threshold.

Memphis largely supported the lottery when the measure was placed on the ballot 12 years ago, and Cohen recalls radio talk-show hosts in the city encouraging people not to vote for governor that year in order to pass the measure. Of course, others who opposed the lottery measure encouraged people to vote in the governor’s race, he says.

Cohen isn’t sure if that strategy worked either way, but he points out that even though 57 percent of Tennessee’s voters supported the lottery amendment, 849,232 to 659,979, it passed by only about 4 percentage points because of the number who voted in the governor’s race, 1,669,157.

In fact, another constitutional referendum that year – a measure giving the General Assembly authority to prescribe maximum fines that could have been assessed without a jury – received a majority vote, 702,434 to 623,535 but failed to pass because it didn’t garner 50 percent plus one vote of the governor’s election total.

State Sen. Brian Kelsey says he agrees with Cohen that “it’s very difficult to get a constitutional amendment on the ballot” and notes that the process takes a minimum of three years and usually more.

Kelsey, a Memphis Republican, is the sponsor of Amendment 3 on the Nov. 4 ballot, a measure that would prohibit the Legislature from voting to enact a state income tax.

“I feel we will receive a majority of votes for the amendment,” he says, “but I am very concerned that we may not reach a majority of those who vote in the governor’s race.”

The General Assembly has two methods for changing the state Constitution, a constitutional convention and the legislative method.

Under the latter process, the House and Senate must pass the constitutional amendment legislation on majority votes in one session, followed by passage on two-thirds votes in both chambers during the next session. During the ensuing election that includes a gubernatorial race, the matter can be placed on the ballot for a statewide referendum.

For passage, a majority vote is required by Tennesseans that also exceeds 50 percent plus one of the number participating in the governor’s vote.

Kelsey began sponsoring the anti-income tax resolution in 2005 when he entered the Legislature and kept pushing it for nearly a decade until it reached the ballot.

“Certainly having the Republican super-majority has helped,” he says, noting the two-thirds Republican control of each body.

Kelsey says those backing the constitutional amendment prohibiting a state income tax are running a grass-roots campaign for “Yes on 3,” and they’ve talked to thousands of people, telling them of the importance of voting for the amendment, because if people vote for the governor and skip an amendment, then that counts as a no vote for the amendment.

Primarily, he is concerned that people won’t understand the ballot language. That’s why his group’s message is simple: “Yes on 3, income-tax free.”

With the highly popular Gov. Bill Haslam facing only token opposition from Democratic candidate Charlie Brown and Independent John Jay Hooker, for example, lack of interest in the gubernatorial race could be a booster for amendment passage.

Kelsey says he isn’t sure how the governor’s race will play out as far as the number of votes, but he says he is supporting Haslam 100 percent.

History lesson

Tennessee has adopted three constitutions since it was formed in 1796, the last one receiving approval in 1870. It saw no amendments until 1953, with more following in 1960, ’66, ’72 and ’78. Starting with 1998, Tennessee has amended the Constitution every four years, and four more constitutional questions are on the Nov. 4 ballot. Those deal with abortion restrictions, setting the process for electing Supreme Court and appellate judges, prohibiting an income tax and allowing charitable gaming for 501(c)(19) organizations.

MTSU political scientist John Vile says the legislative method makes it relatively easy to pass constitutional amendments once they reach the referendum stage, despite the requirement that they top 50 percent of the governor’s race participation.

Compared to the federal process for amending the U.S. Constitution, which requires two-thirds passage in both houses and three-fourths ratification of all states, Tennessee’s method isn’t as stringent, Vile says.

Vile points out that the Equal Rights Amendment passed Congress but didn’t become law because it failed to receive enough support from the states.

“In 227 years of history, you have 27 amendments at the national level,” he says. The last one came in 1992 when the method for congressional pay raises was amended, some 203 years after it was first proposed.

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