STATE CONSTITUTIONAL OBSTRUCTIONS[A]
[Footnote A: Table of difficulties in each state is to be found in the
Appendix.]
MARY SUMNER 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.[A] 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 years' 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.[B]
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
[Footnote A: 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.]
[Footnote B: 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.] referendum not by a majority on
the amendment but by a majority of all voting for candidates at this
general election.[A]
[Footnote A: 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."]
This requirement by itself is regarded by one authority on state
constitutions[B] 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.
[Footnote B: Dodd, W.F. Revision and Amendment of State
Constitutions.]
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.[A]
[Footnote A: The five states are Illinois (four years), Pennsylvania,
New Jersey and Kentucky (five years), and Tennessee (six years).]
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[A] 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.
[Footnote A: Louisiana, Texas, Mississippi, North Dakota, Arkansas,
Connecticut, Indiana, Massachusetts, New Jersey, Pennsylvania, Rhode
Island and Virginia.]
New Hampshire amends by constitutional convention alone and these
conventions are held infrequently.
Only in Delaware is the Constitution amended 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[A] 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.[B]
[Footnote A: 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.]
[Footnote B: 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.]
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.