In his majority opinion in Dobbs v. Jackson Women’s Health Organization two years ago, Justice Samuel Alito said the court overturned Roe v. Wade so that abortion-related questions could be decided by the nation’s democratic processes. “It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives,” he declared in the ruling.
More than a few state Republican lawmakers disagree—not with the overturning Roe part, but with the part where the American people get to decide what their abortion laws should look like. The latest and perhaps most troubling effort to curtail the people’s will comes from Missouri, where anti-abortion legislators are leading an effort that would radically change how the state amends its constitution—and perhaps even make it impossible without the GOP’s exclusive assent.
Since it joined the Union in 1821, Missouri’s amendment process has required only a simple majority of voter support. The new proposals would require what is known as a “concurrent majority” in addition to a majority of statewide voters. A concurrent majority would require the approval of voters in a majority of Missouri’s legislative or congressional districts, depending on which of the GOP amendment proposals is pursued. While Democratic lawmakers have filibustered the move in an attempt to defeat it in recent weeks, their GOP counterparts appear eager to push forward nonetheless.
The law’s proponents have compared the move to mechanisms in the federal Constitution that occasionally award the presidency to someone who doesn’t receive the most votes. “This will change the way we actually campaign on these issues,” Tim Jones, the director of the state legislature’s Freedom Caucus, told the Missouri Independent earlier this month. “This, to me, is a very similar concept to the Electoral College.” He apparently meant that as a good thing.
It is not uncommon for states to put higher thresholds on amending their state constitutions. Some states require a supermajority of state lawmakers to approve a prospective amendment. Others demand that voters pass an amendment in multiple elections before it can take effect. The federal Constitution, for its part, requires the assent of three-quarters of the states before an amendment can be ratified.
But the concurrent-majority provision is unusual because it would link the state’s amendment process to its legislative maps, which are vulnerable to gerrymandering. That, in turn, would make it easier for the party in power to pass its preferred amendments and more difficult for others to pass amendments they support. It would also have deeply antidemocratic effects: The Missouri Independent estimated that just 20 percent of voters would be able to defeat an amendment if a concurrent majority were required.
The state’s battles over mapmaking and political power trace back to the Clean Missouri Amendment, which was passed by the state’s voters in 2018. The amendment created a nonpartisan system for redrawing state legislative seats, which transferred the state legislature’s power to a nonpartisan state demographer. It also imposed a series of restrictions on gifts from lobbyists, which it capped at $5, and on campaign donations, which it limited to $100 for Senate candidates and $500 for House candidates.
State Republican leaders opposed that amendment, which ultimately passed with more than 60 percent of the vote. That led them to back an amendment in the 2020 election that would repeal some of its most important provisions before they could take effect after the 2020 census. Among them were the abolition of the state demographer position, scrapping the nonpartisan map-drawing system in favor of one led by politically appointed commissions. At least some of the GOP lawmakers who supported Amendment 3 said they worried that without it, they would lose political influence.
“Over the past two years, I have heard numerous concerns from my constituents regarding the redistricting aspect of Clean Missouri,” Senator Jeanie Riddle told a local news outlet in 2020. “If enacted, I fear the new redistricting process outlined in Clean Missouri will have a drastic effect on the residents of the 10th Senatorial District. If my district was redrawn under the guidelines of Clean Missouri, I believe the composition of the 10th Senatorial District would change in a way that would result in my rural and suburban constituents losing representation in the state capital that reflects their views and concerns.”
Missouri voters narrowly approved Amendment 3 that year with a 51 percent majority. Some voter support was driven by approval of ancillary features of the amendment, including a provision that zeroed out the threshold for lobbyist gifts to elected officials. Its requirements for map drawing have also led to legal disputes between different groups of state Republican lawmakers, who have contested how certain counties were drawn and divided into certain districts.
One proponent of the concurrent-majority amendment has argued that it would be fairer in the sense of giving different geographic regions a voice. “I believe [Senate Joint Resolution] 28 respects simple majority thresholds while ensuring that all Missouri citizens have a voice independent of their geographical area,” Senator Jill Carter said in a statement this week. That would nonetheless run counter to the one person, one vote principle, which prioritizes people over land.
Other state senators have proposed a similar measure with an important twist: Instead of requiring the support of a majority of state legislative districts, it would require the support of a majority of the state’s congressional districts. That difference would be a troubling one. While state legislative maps are drawn by the bipartisan commissions, Missouri’s congressional districts are drawn by the state legislature, where partisanship is the lodestar. Only one of the state’s eight districts is competitive, and Republican lawmakers used the last census to give GOP candidates in it a little more help, according to local news outlets.
Requiring majority approval from the state’s congressional districts would effectively lock Democrats and their preferred proposals out of the constitutional amendment process, while posing no hurdle to Republican-favored ones. In the hopes of winning public approval, the amendments again included ancillary provisions that have little to do with their actual substance. One GOP-backed proposal would ban amendments that imposed sales taxes on food and property taxes. Another would prohibit amendments that would defund police departments or make it harder to “[assist] in the defense of the national borders.”
State Democratic lawmakers derided those provisions as “ballot candy,” meaning that they had been intentionally added to distract from the substance of the amendment. “They put the most important part at the very end, but they put all the other things in front, the candy, the stuff that they see first, and they know that’s why because it’s gonna do well that way,” Senator Doug Beck, a Democrat, told St. Louis Public Radio earlier this week.
What’s driving the urgency for state GOP lawmakers over restricting the amendment process? Abortion rights. In neighboring Kansas, voters rejected a constitutional amendment in 2022 that would have allowed the state legislature to enact an abortion ban in the wake of the Supreme Court’s ruling in Dobbs earlier that year. Ohio voters recently trounced a proposed amendment that would have raised the approval threshold for future amendments from 50 percent to 60 percent, which had been drafted in hopes of staving off a potential legalization amendment in upcoming elections.
In Missouri, Planned Parenthood and other reproductive rights groups are organizing for an amendment that would establish a right to obtain an abortion in the state constitution while also allowing state lawmakers to pass certain regulations on it. Republicans tried to organize a competing constitutional amendment on the ballot but abandoned that effort earlier this month, citing the likelihood of voter confusion. That shift, in turn, has accelerated efforts to make it harder to pass an amendment in the first place.
Warping the state’s amendment procedures for just one issue is troubling enough. But a concurrent-majority requirement could affect a much wider range of amendment proposals than just abortion rights. That, in turn, would make it far more difficult—and perhaps even impossible—for the state’s voters to see their preferences reflected in the state constitution. And since the requirement would only be able to be removed by an amendment that meets that threshold, Missouri lawmakers and voters risk locking themselves out of the amendment process altogether. Self-government shouldn’t have to be that hard.
