A new effort from the Missouri GOP to create what amounts to an “Electoral College” for constitutional amendments is one of the most aggressive moves yet by Republicans anywhere to undermine direct democracy. But this latest attempt to restrict voters’ power—just as reproductive-rights advocates are working to place an abortion-rights measure on the ballot—could be dead on arrival because there’s a good chance it violates the U.S. Constitution.
The proposal, passed by the state Senate last week on a party-line vote, would require that voter-initiated constitutional amendments be approved by both a majority of voters statewide and a majority of votes “in each of more than half of the congressional districts in the state.” If the state House signs off, the measure would go before voters later this year—possibly in August, ahead of a potential abortion vote in November.
Missouri Republicans seem to have reached a consensus that they should make the process of amending the constitution harder, but they’ve gotten bogged down in a debate over how best to do so. As it stands now, the state constitution requires a simple majority of voters statewide to approve constitutional amendments, whether proposed by the legislature or initiated by voters.
But with abortion-rights supporters already gathering signatures to put an initiative before voters that would roll back the state’s near-total ban on the procedure, Republicans are impatient to act after their previous attempt to restrict direct democracy last year died thanks to GOP infighting.
Notably, their new approach would raise the requirement for ratification of amendments proposed by voters, but it would not alter the requirement for any amendments advanced by the legislature. As a consequence, voter-initiated measures would need to win a majority statewide and in a majority of the state’s congressional districts—which were gerrymandered by Republicans.
That means that any voter-backed ballot measures would need to carry five of the state’s eight districts. That would be especially tough for most progressive-backed amendments since it would require winning significant crossover support on some extremely red turf: While Joe Biden lost Missouri to Donald Trump by 57-41, Biden’s fifth-best congressional district, the 6th, gave him just 31 percent of the vote, according to data compiled by Daily Kos Elections.
Conservative measures, by contrast, would not face a similar hurdle: Trump won his fifth-best district, the 3rd, with 62% of the vote, meaning that a statewide victory would all but guarantee majorities in a sufficient number of congressional districts.
However, while the practical effect of the amendment could be devastating for liberal campaigns, it could very well be unconstitutional under the U.S. Supreme Court’s long-standing doctrine of “one person, one vote.” That’s because, under the GOP’s proposal, voters’ votes would count unequally.
An additional vote in favor of a measure in the dark-blue 1st District, for example, would not help its passage if it were lagging in red districts. However, an additional vote in favor of the same measure in the 6th District would.
On top of that, different numbers of voters would cast ballots in each district, yet each district overall would get one “vote” in this bizarro Electoral College. In 2020, for instance, voters in the liberal 5th District cast only 80% as many votes in the presidential race as did those in the conservative 2nd District.
Few cases have been brought that have challenged requirements like this one, so there isn’t much precedent to rely on. The most recent example is likely a New Mexico case from 1968, when the state Supreme Court struck down a requirement that certain amendments to the constitution receive at least two-thirds support in every county in the state.
While that requirement was more egregious than the measure backed by Missouri Republicans—congressional districts are drawn to be of equal population, but counties aren’t—the court’s conclusion that it ran afoul of “one-person, one-vote” jurisprudence relied on logic that would be applicable here, too.
The now-defunct system used for more than a century to elect statewide officials in Mississippi offers another useful analogy. The “double-majority” requirement adopted in the state’s 1890 Jim Crow constitution required that statewide candidates receive a majority of the vote statewide and in state House districts. If no candidate received such a double majority, the election was thrown to the state House to pick a winner, with no requirement that lawmakers choose the candidate who’d won the most votes.
Four elections in state history triggered this backup provision, prompting a group of Black voters to challenge its constitutionality in the leadup to the competitive 2019 gubernatorial election. A federal judge concluded that there was a strong case that the requirement violated “one person, one vote” and suggested that the legislature rectify the problem. The following year, it finally did so when Mississippi voters ratified a constitutional amendment that tossed the rule.
But regardless of the constitutionality of the Missouri GOP’s latest proposal, it would first need to be approved by a majority of Missourians, and there are good reasons to think that voters would reject such a blatant effort to limit their own power.
Over the past several years, Republican legislatures have repeatedly attempted to persuade voters to surrender their right to engage in direct democracy, but those efforts have been repeatedly rejected. The latest repudiation came just last year, when Ohioans voted down an amendment that would have raised the threshold for future amendments from a simple majority to a 60% supermajority—just months before an amendment recognizing abortion rights was set to go before voters.
Ohio voters turned back the GOP’s bid to curtail their powers and enshrined in their constitution the right to abortion by landslide 57-43 margins both times. The size of those margins explains why Missouri Republicans are so desperate to prevent something similar from happening in their state—and in their desperation, they’re forging ahead with a plan that might be stillborn.
