Kentuckians know a bad constitutional amendment when they see one, summarized or not | Opinion
The deep red, conservative state of Kentucky keeps defeating constitutional amendments that would uphold conservative ideals like banning abortion for everyone forever and diverting public tax dollars to private schools.
They haven’t been nail-biter contests, either. In 2022, voters handily rejected the idea of the General Assembly having the power to call itself into session without the Governor’s authority. In addition, 52.4% of voters rejected the abortion ban amendment. Then 2024, voters stomped on the school choice amendment, defeating it in every single county of the state by 64.8%.
Senate President Robert Stivers has apparently concluded the problem must be that Kentuckians don’t really understand what they’re reading. He’s proposing that we amend the constitution on how we amend the constitution — allowing summaries of the amendments on the ballot, rather than the actual language of how the constitution would be changed.
Senate Bill 262 will be up for its first vote on Wednesday, March 4 in the Senate State and Local Government Committee.
The bill would need three-fifths support in both the House and Senate as well as majority approval from Kentucky voters in November, who would be voting on the full text of the amendment.
Of course, it’s complicated
Now on some ballot amendments, Stivers has a point. The 2022 measure to allow the General Assembly to call itself into session was several pages long. It was confusing, and I’d guess people are much more likely to vote no on something they don’t understand. Especially about legislative meetings.
The Marsy’s Law amendment which expanded victims’ rights, was more than 500 words, nearly a full page. It also passed in 2018 but the Kentucky Supreme Court struck it down because the full text had not been included on the ballot.
Before Marsy’s Law, summaries for constitutional amendments had often been used on the ballot, especially in larger reforms of the 1891 Constitution, said Kentucky constitutional lawyer Sheryl Snyder.
When the judicial articles were reformed in 1975, which resulted in the modern court system, “the amendments were 25 pages long,” Snyder said. Those pages were distilled into a summary that the voters approved.
Snyder was deeply involved in the constitutional change allowing two terms for Kentucky governors in 1992.
“That completely rewrote the executive branch and changed the role of the Senate President’s office, so it was 20 pages long,” he said. “It would have been difficult to understand, and it would have backed up the voting lines.”
Back in those days, newspapers always printed the full text as part of legal notices. Nowadays with fewer newspapers, that’s more difficult, but with the internet, there would be more sources of what the amendment actually says. In addition, advocates raise huge amounts of money for public education campaigns on both sides of these issues.
“For a one-paragraph amendment, it would be difficult to write a fair summary that didn’t just copy it,” Snyder said. “The issue for me is in terms of truly lengthy, substantive changes.”
In addition, Snyder said, the summary text is subject to judicial review, so it couldn’t be written in a misleading way. SB 262 says amendment proposals “shall be submitted to the voters of the State in the form of a ballot question or summary that clearly and accurately states the substance and effect of the proposed amendment.”
Another constitutional historian and attorney, Denis Fleming, said the bill could be improved with more safeguards.
“I think Sen. Stivers is very much headed in the right direction, it’s consistent with what we’ve done in the past,” Fleming said. “To the extent they would entertain additional language, the safeguard of an advisory panel could make sure the summary accurately reflects the amendment.”
Clear and concise
The historical context is important. But two of the most decisive recent defeats had ballot language that was short and quite clear.
“Are you in favor of amending the Constitution of Kentucky by creating a new Section of the Constitution to be number Section 26A to state as follows: To protect human life, nothing in this Constitution shall be construed to secure or protect a right to abortion or require the funding of abortion.”
And:
“To give parents choices in educational opportunities for their children, are you in favor of enabling the General Assembly to provide financial support for the education costs of students in kindergarten through 12th grade who are outside the system of common (public) schools by amending the Constitution of Kentucky as stated below?
IT IS PROPOSED THAT A NEW SECTION BE ADDED TO THE CONSTITUTION OF KENTUCKY TO READ AS FOLLOWS:
The General Assembly may provide financial support for the education of students outside the system of common schools. The General Assembly may exercise this authority by law, Sections 59, 60, 171, 183, 184, 186, and 189 of this Constitution notwithstanding.”
I would humbly propose that Kentuckians are smart. They’re also stubborn and maybe somewhat resistant to change. Maybe, they think, the Constitution of Kentucky has been around since 1792, was rewritten three times, the last in 1891, and amended many more.
Maybe, just maybe, some ideas don’t sit well with the majority of voters. Both Democrats and Republican voters can wholeheartedly agree they don’t want the General Assembly passing more laws and spending more money any time they feel like it.
Maybe a lot of Kentuckians were alarmed by the idea of a constitutional ban on abortion without any exceptions for rape, incest or the life of the mother. Current laws ban all those things right now without the amendment.
And certainly, Kentuckians love their public schools, which in many rural places are the heart of the community, the major employer, and the only schools they got. They are smart enough to reject the idea of hurting their local schools to help wealthy kids in Lexington and Louisville go to private schools.
But! That same year, voters also overwhelmingly passed an amendment to limit voting to U.S. citizens. So they’re also capable of holding two thoughts at the same time.
Maybe the point is you can’t really fool Kentuckians even some of the time. So keep trying to change the Constitution, make sure you’re “clear and accurate” about it, and let the votes fall where they may.
