Rights in California and Florida
I was reading some depressing news about California voters likely banning gay marriage via a constitutional amendment and found a surprising footnote about Florida’s ballot measures.
Among the more unusual measures on this year’s ballots was one in Florida that would repeal an old clause in the state constitution that allows legislators to bar Asian immigrants from owning land. The repeal would be symbolic, as equal protection laws would prevent lawmakers from applying the ban. With 78 percent of precincts reporting just before 11 p.m., the vote was close, with 52 percent voting to preserve the clause.
So, can a constitutional amendment be declared unconstitutional? That is, I assume that there is some statement regarding equality in most state’s constitutions. A constitutional amendment that promotes inequality would then run afoul of other portions of the constitution.
Alternatively, can the US Supreme Court declare that a state constitutional amendment runs afoul of the greater federal constitution?
Also, is it seriously only a 50% majority that’s needed to amend most state’s constitutions? That seems a bit low. Even Florida’s 60% seems low. I’d expect it to be a full 2/3 or 3/4 requirement.
The US constitution requires that the amendment be proposed and approved by 2/3 of both houses, followed by approval by 3/4 of the states, which seems about right to me.
I’m not sure what happens if the state constitution is ruled internally inconsistent, or by what means such a ruling could happen.
I do know that the ACLU is suing the government claiming that Prop 8 changes the constitution in a fundamental way and so counts as a constitutional “revision” rather than a simple amendment. By state law, such revisions must be approved by the legislature prior to being sent to the public, and Prop 8 was submitted by a group of citizens directly to the Secretary of State for inclusion on the ballot rather than being submitted by the legislature.
Or something like that.
There are also other groups suing the state, potentially each with a different strategy.
The US Supreme Court can certainly rule that a state’s constitution is unconstitutional (with respect to the US constitution). As I understand it, though, no one’s wanted to take the issue to the US Supreme Court for fear of a bad, precedent setting ruling.
And I agree about the %50 thing.