Kansas Attorney General Opinion 2019-010

December 4, 2019
ATTORNEY GENERAL OPINION NO. 2019- 10
The Honorable Blake Carpenter
State Representative, 81st District
P.O. Box 350
Derby, KS 67037
Re: 	Constitution of the State of Kansas—Legislative—Majority for Passage of
Bills; Votes to Ratify Federal Constitutional Amendments or Apply for
Congress to Call a Federal Constitutional Convention
Synopsis: 	The supermajority requirement of Article 2, § 13 of the Kansas Constitution
is precatory language. The Kansas Legislature may by rule adopt a two-
thirds vote requirement to ratify federal constitutional amendments or apply
for Congress to call a federal constitutional convention. Cited herein: Kan.
Const., Art. 2, § 13; U.S. Const., Art. V.
* 	* 	*
Dear Representative Carpenter:
As State Representative for the 81st District, you request our opinion regarding the
supermajority requirement in Article 2, § 13 of our state constitution. Specifically, you ask
whether the Kansas Constitution may “provide for additional requirements” for ratification
of a federal constitutional amendment beyond what is required by Article V of the United
States Constitution. For the reasons discussed below, we believe the state constitution’s
supermajority requirement cannot bind the Legislature when it is exercising the federally
delegated power of ratifying an amendment to the federal constitution or applying for
Congress to call a federal constitutional convention under Article V. Rather, the effect of
the supermajority requirement is merely precatory, or in other words an expression by the
people of Kansas of their desire that the Legislature muster a two-thirds vote in each
house to ratify federal constitutional amendments or apply for Congress to call a
convention for proposing federal constitutional amendments.

Hon. Blake Carpenter
Page 2
The Nature of the Power to Ratify a Federal Constitutional Amendment
Article V of the United States Constitution provides the methods for proposing and
ratifying constitutional amendments:
The Congress, whenever two thirds of both Houses shall deem it necessary,
shall propose Amendments to this Constitution, or, on the Application of the
Legislatures of two thirds of the several States, shall call a Convention for
proposing Amendments, which, in either Case, shall be valid to all Intents
and Purposes, as Part of this Constitution, when ratified by the Legislatures
of three fourths of the several States, or by Conventions in three fourths
thereof, as the one or the other Mode of Ratification may be proposed by
the Congress . . . .1
Described 	by 	courts 	as 	“unwieldy 	and 	cumbrous,”2 	this 	process 	for 	altering 	the
Constitution has two stages—proposal and ratification.
In the first stage, proposal, either Congress or a national convention called
for the purpose may propose an amendment or amendments. In the second
stage, ratification, a supermajority of the several states, either through their
legislatures or state conventions, must approve the proposal for it to
become law.
The Constitution identifies two explicit roles for state legislatures, one at
each stage. At the proposal stage, a state legislature may apply to Congress
for the calling of a national convention. At the ratification stage, if Congress
chooses the legislative ratification route, a state legislature may assent to,
or reject, an amendment.3
In 1974, the people of Kansas voted to amend the Kansas Constitution to require:
Two-thirds (2/3) of the members then elected (or appointed) and qualified
in each house, voting in the affirmative, shall be necessary to ratify any
amendment to the Constitution of the United States or to make any
application for congress to call a convention for proposing amendments to
the Constitution of the United States.4
1 U.S. Const. Art. V (emphasis added). Alexander Hamilton viewed the Article V authority for state
legislatures to call a constitutional convention for proposing amendments to be important so “the national
rulers . . . will have no option” but to allow the states to consider constitutional amendments. “We may safely
rely on the disposition of the State legislatures to erect barriers against the encroachments of the national
authority.” (Federalist No. 85.)
2 E.g., Barron v. Baltimore, 32 U.S. 243, 250 (1833).
3 Howard Jarvis Taxpayers Ass’n. v. Padilla, 363 P.3d 628, 635 (Cal. 2016).
4 Kan. Const. Art. 2, Sec. 13; see L. 1974, ch. 458, § 1.

Hon. Blake Carpenter
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The Supremacy Clause 5 requires the provisions of a state constitution not to conflict with
the provisions of the United States Constitution. 6 Article V does not explicitly authorize or
forbid a state from adopting specific requirements for ratification of an amendment to the
United States Constitution by that state’s legislature. Therefore, in order to determine
whether a conflict exists, we must examine the nature of the ratification power itself.
We start with a prior opinion of this Office on a closely related subject, Attorney General
Opinion No. 1977-73, in which Attorney General Curt T. Schneider considered whether
the people of Kansas could, by popular referendum, direct the Legislature to rescind a
prior ratification of a federal constitutional amendment. That opinion includes the following
helpful quotations:
The ratification or rejection of an amendment to the federal Constitution is
a federal function derived from the federal Constitution itself. . . . When a
state Legislature performs any act looking to the ratification or rejection of
an amendment to the federal Constitution, it is not acting in accordance with
any power given to it by the state Constitution, but is exercising a power
conferred upon it by the federal Constitution. 7
[T]he state Legislature in ratifying the amendment . . . is not . . . acting in
the discharge of legislative duties and functions as a law-making body, but
is acting in behalf of and as representative of the people as a ratifying body,
under the power expressly conferred upon it by [Article V].8
It is because the state legislature’s ratification power is a grant of federal authority directly
from the federal constitution that the United States Supreme Court has said it “transcends
any limitations sought to be imposed by the people of a state,”9 including limitations in a
state’s constitution. 10 “[T]he people divested themselves of all authority and conferred the
power of proposal upon Congress or upon a national constitutional convention, and the
power of ratification upon the state Legislature or upon state constitutional conventions.”11
The United States Supreme Court has explained that when the Kansas Legislature is
considering ratification of a proposed federal constitutional amendment, “any or all of the
questions” that may arise “are exclusively federal questions and not state questions.” 12
This is because any such questions “ar[i]se under Article V of the Constitution . . . which
5 U.S. Const. Art. VI, Cl. 2.
6 The Kansas Supreme Court recognized this applies to provisions of the Kansas Constitution in Harris v.
Anderson, 194 Kan. 302, 306 (1965).
7 Attorney General Opinion No. 77-73, quoting State ex rel. Tate v. Sevier, 333 Mo. 662, 667 (1933), cert.
denied, 290 U.S. 679.
8 Id., quoting In re Opinion of the Justices of the Supreme Court of Maine, 118 Me. 544, 107 A. 673, 674
(1919).
9 Leser v. Garnett, 258 U.S. 130, 137 (1922).
10 Id. at 136-37 (holding that a state constitutional provision preventing women from voting could not prohibit
a state’s legislature from ratifying a federal constitutional amendment granting women suffrage).
11 In re Opinion of the Justices of the Supreme Court of Maine, 107 A. at 675.
12 Coleman v. Miller, 307 U.S. 433, 438 (1939) (emphasis added).

Hon. Blake Carpenter
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alone conferred the power to amend and determined the manner in which that power
could be exercised.” 13
The United States Supreme Court concluded the people of a state could not give this
power back to themselves in their state constitutions in Hawke v. Smith,14 	a case
regarding the Eighteenth Amendment 15 and Prohibition. In 1918, after the Eighteenth
Amendment had been proposed but before it had been ratified by the requisite number
of states, the people of Ohio adopted an amendment to their state constitution purporting
to “reserve to themselves the legislative power of the referendum on the action of the
General Assembly ratifying any proposed amendment to the Constitution of the United
States.”16 The Supreme Court observed the language of Article V “is plain, and admits of
no doubt in its interpretation.” 17 Reading the plain language of Article V, the “only question
really for determination is: 	What did the framers of the Constitution mean in requiring
ratification by ‘legislatures’?” 18 In other words, could the people of Ohio reserve legislative
power over ratification of amendments to the United States Constitution and become part
of the “Legislature” referred to in the United States Constitution, requiring ratification to
be decided by referendum? The Supreme Court concluded the answer was “no,” resting
on the observation that ratification is not a legislative action. 19 Ratification is the
“expression of assent or dissent to a proposed amendment to the Constitution. In such
expression no legislative action is authorized or required.”20
This distinguishes the ratification power from other federal grants of authority to state
legislatures that do invoke legislative action, such as the Election Clause, which directs:
“The Times, Places, and Manner of holding Elections for Senators and Representatives,
shall 	be 	prescribed 	in 	each 	State 	by 	the 	Legislature 	thereof.”21 	Hawke 	therefore
recognized that redistricting is a “legislative action” which can be shared between a state’s
legislature and its people, notwithstanding the grant of this authority to the “Legislature”
of each state. 22 This view was recently affirmed by the United States Supreme Court when
it upheld the delegation of congressional redistricting in Arizona to an independent
commission established by ballot initiative. 23 Because the people of Arizona “reserve the
power to propose laws . . . and to enact or reject such laws” in their state constitution,24
the U.S. Supreme Court found “the people may delegate their legislative authority over
13 Coleman v. Miller, 307 U.S. at 438 (emphasis added).
14 Hawke v. Smith, 253 U.S. 221 (1920).
15 U.S. Const. Amend. XVIII (repealed 1933).
16 Hawke, 253 U.S. at 225.
17 Id., at 227.
18 Id.
19 Id. at 228-29. Legislative action is that “relating to, or involving lawmaking or . . . enact[ing] laws;
concerned with making laws.” See Black’s Law Dictionary, 11th ed. (2019).
20 Hawke, 253 U.S. at 231.
21 U.S. Const. Art. I, Sec. 4, Cl. 1.
22 Hawke, 253 U.S. at 231, citing Davis v. Hildebrant, 241 U.S. 565 (1916).
23 Arizona State Legislature v. Arizona Independent Redistricting Comm’n, __ U.S. __, 135 S. Ct. 2652
(2015).
24 Ariz. Const. Art. IV, pt. 1, § 1.

Hon. Blake Carpenter
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redistricting to an independent commission.” 25 But the Article V ratification power, in which
“no legislative action is authorized or required,” 26 may not be reserved by the people of a
state.
We observe that only one court has reviewed a state constitution’s supermajority
requirement 	for 	ratification 	of 	a 	federal 	constitutional 	amendment.27 	That 	opinion
addressed but did not rule on the constitutionality of the supermajority requirement
imposed by the Illinois Constitution, noting only that “the Illinois constitutional provision
may only be precatory in its effect on the federal process, and [the legislative houses] are
free to accept or reject the three-fifths requirement” imposed by Article XIV, § 4 of the
Illinois Constitution. 28
Under the weight of authority described above, we conclude the two-thirds supermajority
requirement in the Kansas Constitution is merely precatory, or in other words an
expression by the people of Kansas of their desire that the Legislature ratify federal
constitutional amendments by a two-thirds supermajority rather than by simple majority.
This holding is analogous to Justice Kennedy’s observation in Cook v. Gralike that states
(and citizens through state constitutional amendment or otherwise) are free to request or
urge certain actions authorized by the federal Constitution but may not impose binding
requirements on the exercise of federally delegated authority. 29
This conclusion, however, begs another question: is the Legislature free to establish by
its own procedural rules a vote requirement for ratification of federal constitutional
amendments that reflects the intent of the people of Kansas expressed in Article 2, § 13
of the Kansas Constitution?
The panel in Dyer concluded the procedural supermajority imposed by the rules of the
Illinois Legislature passed constitutional muster:
If the framers had intended to require the state legislatures to act by simple
majority, we think they would have said so explicitly. When the Constitution
requires action to be taken by an extraordinary majority, that requirement is
plainly 	stated. 	While 	the 	omission 	of 	a 	comparable 	requirement 	in
connection with ratification makes it quite clear that a bare majority is
permissible, it does not necessarily indicate that either a simple majority or
a constitutional majority must be accepted as necessary. We think the
25 Arizona State Legislature, 135 S. Ct. at 2671.
26 Hawke, 253 U.S. at 231.
27 See Dyer v. Blair, 390 F. Supp. 1291 (N.D. Ill. 1975) (approving the results of the Illinois House and
Senate votes regarding ratification of the Equal Rights Amendment, even though both houses adopted
rules that imposed a three-fifths vote requirement that could not be found in the United States Constitution).
28 Id. at 1309. The panel avoided ruling on the constitutionality of Illinois Const. Art. XIV, Sec. 4 under the
doctrine of constitutional avoidance because the issues presented in the case could be decided on the
Illinois Legislature’s failure to pass the subject resolution under its own procedural rules. The panel’s
decision rests on the conclusion that those procedural rules are constitutional.
29 Cook v. Gralike, 531 U.S. 510, 527-530 (2001) (Kennedy, J, concurring).

Hon. Blake Carpenter
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omission more reasonably indicates that the framers intended to treat the
determination of the vote required to pass a ratifying resolution as an aspect
of the process that each state legislature, or state convention, may specify
for itself.30
We find this analysis persuasive. Although we note the United States Supreme Court
warned “[t]he choice of means of ratification was wisely withheld from conflicting action in
the several states,”31 this statement appears to be used to buttress the court’s conclusion
that ratification is not a legislative action. The panel in Dyer noted that “the several states
have actually adopted a wide variety of ratification requirements,”32 and included a list
demonstrating that a bare majority of states had in place ratification requirements other
than a “constitutional majority,” or a simple majority of the elected representatives:
[Twenty four] states require a majority of the elected representatives (a
constitutional majority); 17 states require a majority of those present and
voting (a simple majority); 3 states require a majority of those elected to the
state 	senate 	and 	two-thirds 	of 	those 	elected 	to 	the 	state 	house 	of
representatives; 2 states require two-fifths of the members elected and a
majority of those voting; Louisiana requires a majority of those elected to
the state senate and a majority of those present and voting in the state
house; Tennessee requires a majority of the authorized membership of
each house notwithstanding the possible existence of vacancies; Idaho
requires two-thirds of those elected. 33
As the panel in Dyer wryly observed, “were we to conclude that Article V does mandate
a particular majority vote in each state legislature, we would then have to choose among
the myriad of possibilities set forth above.” 34 Instead, we conclude Article V allows each
house of the Legislature to choose its own vote threshold. 35 This conclusion is analogous
to, and consistent with, the holding of the United States Supreme Court in Coleman v.
Miller , a case involving the Kansas Legislature’s attempt to ratify a child labor amendment
to the United States Constitution twelve years after rejecting the same amendment. The
U.S. Supreme Court held that the final determination whether a proposed federal
constitutional amendment has been properly ratified by a state’s legislature is a political
question reserved for Congress, not for the judiciary. 36 So too, it seems to us, the vote
30 Dyer, 390 F.Supp. at 1306.
31 Hawke, 253 U.S. at 230.
32 Dyer, 390 F. Supp. at 1307 (citing n. 34 at 1305).
33 Id. at n. 34. The figures, prepared by the Illinois Legislative Council and submitted to the panel by the
legislator-defendants, presumably omit Illinois itself.
34 Id., at 1307.
35 The United States Supreme Court has not approved a ratification vote threshold lower than a simple
majority. See Dyer, 390 F. Supp. at 1305-06.
36 See Coleman v. Miller, 307 U.S. at 452-456. In Coleman, the U.S. Supreme Court considered whether
Congress had authority to establish a time limit within which an amendment proposed by Congress must
receive the required state ratification. The Court’s reasoning, that Congress and not the judiciary has “the
final determination” of whether a time limit for ratification may be imposed, seems to us similarly applicable
here. Just as Article V grants Congress “the final determination” how to exercise its power to propose

Hon. Blake Carpenter
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threshold required for ratification of a federal constitutional amendment is a political
question reserved to the ratifying body, or perhaps to Congress, but not to the judiciary
or to a state’s constitution.
In summary, the case law indicates that the Kansas Constitution cannot impose a
supermajority voting requirement on the Legislature’s decision to ratify a proposed
amendment. Although the people of Kansas have expressed their desire that the
Legislature not ratify amendments to the United States Constitution except by a vote of
at 	least 	two-thirds 	of 	the 	members 	of 	each 	house, 	that 	expression 	is 	precatory.
Nevertheless, the Kansas House of Representatives and the Kansas Senate have both
adopted a two-thirds vote requirement for a resolution ratifying an amendment to the
United States Constitution, and those rules appear to be constitutionally sound. 37 Thus,
the Kansas Legislature is in fact required to attain a two-thirds vote to ratify a proposed
federal 	constitutional 	amendment, 	but 	the 	Legislature 	is 	bound 	to 	that 	two-thirds
requirement by the rules the Legislature itself has adopted, not by Article 2, § 13 of the
Kansas Constitution.
Application for Congress to Call Constitutional Conventions
The United States Supreme Court has recognized a federal constitutional limit on the
ability of a state, through state constitutional amendment, to direct members of its
congressional delegation to propose an amendment to the federal constitution pursuant
to Article V. In Cook v. Gralike, 38 citizens of Missouri adopted an amendment to their
state’s constitution providing that each member of that state’s congressional delegation
must “use all of his or her delegated powers to pass” a federal constitutional amendment
limiting service in the U.S. House of Representatives to three terms and in the Senate to
two terms.39 Any Senator or Representative from Missouri who failed to take certain
specified federal actions in support of proposing such an amendment would have printed
on future primary and general election ballots adjacent to his or her name the phrase
“DISREGARDED 	VOTERS’ 	INSTRUCTION 	ON 	TERM 	LIMITS.” 	Similarly, 	any
nonincumbent congressional candidate who failed to pledge similar support would have
printed on the ballot “DECLINED TO PLEDGE TO SUPPORT TERM LIMITS.”40 After the
federal district court found this scheme to be “an indirect and unconstitutional attempt by
the people of Missouri to interject themselves into the amending process authorized by
Article V of the Federal Constitution” 41 and the federal court of appeals found this Missouri
scheme a “violation of Article V,” 42 supporters of the state constitutional amendment
amendments to the Constitution, so too Article V grants a state Legislature “the final determination” how to
exercise its federal constitutional power to apply to Congress for a convention to be called – including the
power, by legislative rule, to determine what constitutes a sufficient majority for exercise of that power.
37 Rule 2707(b), Permanent Journal of the House, January 23, 2019 at lxxix; Rule 35, Permanent Journal
of the Senate, January 17, 2019 at xliv.
38 Cook v. Gralike, 531 U.S. 510 (2001).
39 Id. at 514.
40 Id. at 514-515.
41 Id. at 516.
42 Id. at 517, citing Gralike v. Cook, 191 F.3d 911, 918, 924, 925 (8th Cir. 1999).

Hon. Blake Carpenter
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appealed to the United States Supreme Court and presented alternate theories of why
they thought the scheme was authorized by the United States Constitution. The U.S.
Supreme Court rejected those claims of authority and invalidated the state constitutional
amendment as an impermissible intrusion on the amendment process established by the
U.S. Constitution, concluding the state constitutional amendment exceeded the Election
Clause’s grant of authority to regulate the procedural mechanisms of federal elections. 43
In a concurring opinion, Justice Kennedy explained that the U.S. Constitution allows
states and citizens to request and urge their preferred actions by federal officials but not
to bind them to action and penalize a failure to act.44
Thus, 	the 	U.S. 	Supreme 	Court 	has 	invalidated 	efforts 	to 	use 	state 	constitutional
amendments to govern the ratification of federal constitutional amendments pursuant to
Article V (Hawke) and to direct the proposal of federal constitutional amendments by a
state’s congressional delegation pursuant to Article V (Gralike). Turning to the specific
question before us, we see no logical reason a state constitutional amendment attempting
to govern a state legislature acting under authority of Article V to apply for Congress to
call a federal constitutional convention would meet with a different outcome.
No federal constitutional convention has been convened since the 1787 convention that
resolved to create a new system of government and replace the Articles of Confederation
with the text of the United States Constitution. Accordingly, there are no published cases
that squarely address whether a state constitution can impose voting requirements on a
state legislature’s decision to apply for Congress to call a federal constitutional convention
to propose amendments to the United States Constitution. However, because the power
to apply for Congress to call a constitutional convention under Article V, like the power to
ratify constitutional amendments proposed by Congress, also lies with the legislatures of
the several states, we find the same analysis applies. We therefore reach the same
conclusion: 	the supermajority vote requirement to apply for Congress to call a federal
constitutional convention in Article 2, § 13 of the Kansas Constitution is precatory
language. We likewise conclude the Legislature may adopt rules requiring a two-thirds
vote to apply for Congress to call a federal constitutional convention. 45
In conclusion, the power to ratify amendments to the United States Constitution or apply
for Congress to call a constitutional convention to consider amendments to the United
States Constitution is a federal power granted to the Kansas Legislature by the federal
constitution which cannot be constrained by the people of Kansas through the text of their
state constitution. Consistent with Article V of the United States Constitution, and
notwithstanding Article 2, § 13 of the Kansas Constitution, the Kansas Legislature may
determine for itself the number of affirmative votes required to exercise the federally
43 Gralike, 531 U.S. at 518-527 (analyzing and rejecting Election Clause and Tenth Amendment
arguments).
44 Id. at 527-530 (Kennedy, J, concurring).
45 See Rule 2707(b), Permanent Journal of the House, January 23, 2019 at lxxix. We note Senate Rule 35
omits explicit reference to a concurrent resolution to call a convention for proposing amendments to the
United States Constitution. See Permanent Journal of the Senate, January 17, 2019 at xliv.

Hon. Blake Carpenter
Page 9
delegated power to ratify a proposed amendment to the United States Constitution or
apply for Congress to call a federal constitutional convention.
Sincerely,
Derek Schmidt
Kansas Attorney General
Craig Paschang
Assistant Attorney General
DS:AA:CP:sb