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The figures above indicate not only that the amendment of 1898 has seriously reduced the output of amendments; they show also that the demand for amendments is increasing. The constitution is becoming more and more unadapted to the needs of the present century. The supply of amendments is falling farther behind the demand, and the discrepancy would appear to be much greater were it not for the fact that in recent years the legislature has purposely kept down the number of its proposals. In 1917 it proposed only one, the prohibition amendment. This was done in response to the demand of the prohibition forces who believed that if only this amendment were proposed they could so concentrate public opinion upon it as to bring about its adoption. The total vote in the election (1918) was 380,604; the majority necessary for adoption was 190,303. The vote for the amendment was 189,614, as against 173,665 votes opposed. The affirmative vote exceeded the negative by 15,949, yet the amendment was lost because it fell 689 short of the constitutional requirement.
Facts such as those herein related have caused many individuals to become deeply impatient with the present method of amending the constitution. In the election of 1914, eleven amendments were submitted to the voters. Every proposed amendment received a large majority of the votes cast thereon, yet only one, the "forestry amendment," received a majority of the votes cast at the election." 12 The total vote was 356,906; the vote necessary for the adoption of an amendment was 178,454; and the vote given to this one amendment was 178,954. Thus after a strenuous campaign of public education, in which the public press and the schools had given liberally of their aid, this beneficial amendment received but 500 votes more than were necessary for its adoption. Several of the defeated amendments received over a hundred thousand majority of the votes cast thereon. It is not surprising that Governor Hammond in his message of 1915 said:
At the last election there were submitted to the electors eleven proposed constitutional amendments, and all but one [were] defeated. The ordinary voter has not the time, or will not take the time, to familiarize himself with so large a number of propositions. Each one is worthy of much study and of earnest consideration. It is too much to expect that voters will give such study and consideration to eleven proposals in a single election. One or two of them might be submitted and the judgment of the people obtained upon these, but when a large number are proposed a great many voters will either not vote at all or vote "No" because they do not feel justified in voting "Yes." Of the amendments approved in the Legislature it is advisable that some method be adopted to determine the one most important, and submit that, and that alone, to the plebiscite."
Disregarding this good counsel, the 1915 legislature submitted eight amendments to the voters in the 1916 election. Only two were adopted.14 11 Leg. Man. 1919, p. 670, insert.
12 Ibid., 1915, p. 537.
18 Inaugural Message 1915, p. 5.
The six defeated amendments received majorities of the votes cast upon such amendments of from twenty-two thousand to one hundred and thirty-six thousand. The initiative and referendum amendment, which if adopted would have added a new method of changing the constitution, received a vote of 187,711 affirmative as against 51,544 negative, but it failed to receive a majority of the 416,215 votes cast at the election. The 1917 legislature did submit only one amendment, as has been recounted above, but the state was not ready for prohibition.
There can be no question that upon matters of fundamental importance the voters can be aroused to the point where the great majority of them will vote. Over ninety-five per cent of the voters expressed themselves upon prohibition in 1918 and over ninety-one per cent on the trunk highways amendment in 1920. Yet the Minnesota constitution has several unfortunate details which it is not easy to change. A good example is the difficulty which was experienced in extending the term of probate judges from two to four years. On two occasions a proposed amendment to this effect was defeated.15 Very little publicity was given to the proposal on either occasion. There was no group of active political workers to advertise its merits. It was finally adopted in 1920, but its success seems to have been due to extraneous
One state, Wyoming, permits amendments to become effective only when approved by a "majority of the electors." "Electors" has been held to mean "not only those who vote, but [also] those who are qualified yet fail to exercise the right of franchise." Wyoming thus requires a much higher vote than Minnesota, which requires only a majority of the electors voting at the general election. Nine other states require the same majority as is requisite in this state.18 The most common provision is that requiring a majority of the votes on the amendment, which was the original requirement in Minnesota also.
15 See p. 177.
10 Upon being submitted a third time this amendment was adopted in the election of 1920 by a vote of 446,959 to 171,414 in a total vote of 797,945. Its adoption came as a great surprise to all observers, for it did not receive adequate publicity. The newspapers, which devoted whole pages to the trunk highways amendment, gave almost no attention to the probate-judge measure. Several factors quite apart from the merits and importance of the amendment are entitled to credit for having brought about its final adoption, which was accomplished in spite of the feebleness of the campaign in its favor. In the first place, the newly enfranchised women, urged on and instructed in a quiet way by their leaders in various organizations, approached their task of voting with a fresh zeal and interest. It appears that they voted in large numbers and that they did not neglect the pink ballots. In the next place, the great publicity given to the trunk highways amendment directed the attention of all voters to the constitutional-amendment ballot, with the result that over ninety-one per cent of the electors voted upon the highways amendment, and over seventy-seven upon the probate-judge question. Furthermore, the voters had already had the latter measure before them on two recent occasions, and they were in consequence already partially informed as to its merits. Finally, it must be recognized that the Republican "landslide" in the national election carried other things with it in a most irrational way, not only in Minnesota but in other states.
17 State v. Brooks 14 Wyo. 393; 84 Pac. 488; 6 L. R. A. (n. s.) 750, (1909). See also State v. Swift, 69 Ind. 505, (1880), and see contra, Green v. State Board of Canvassers, 5 Ida. 130; 47 Pac. 259; 95 Am. St. Rep. 169, (1896).
18 See Index Dig. of St. Const., p. 16; Dodd, Revis. and Amend. of St. Const., pp. 185-209.
Those who are
4. PROPOSED IMPROVEMENTS IN THE AMENDING PROCESS. dissatisfied with the present method of amending the Minnesota constitution are, very naturally, casting about for some remedy for what they consider a bad situation. The most honest and straightforward method would be to amend the present clause. Such an amendment might take the form of a complete return to the original provision of the state constitution upon this point, under which a mere majority of those voting upon the amendment was sufficient to carry it. This plan is somewhat objectionable, however, since amendments might often be adopted by small minorities, in cases where the greater number of voters took no interest in the proposal. Less objectionable would be an amendment in the form proposed by a representative in the 1919 legislature. His plan was a compromise between the former and the present methods of amendment in that, had it been adopted, a majority of sixty per cent of those voting upon the proposed amendment would have been sufficient to ratify. Somewhat different, but also effective, would be a plan whereby a majority of those voting upon the proposition would be sufficient only in case such majority was at the same time equal to not less than say forty per cent of the total vote cast at the election. Such a plan would prevent the adoption of amendments by slender minorities, and would at the same time permit the passage of almost any popular amendment of considerable importance.20
Professor Dodd, who is a severe critic of the plan of requiring a majority of all the votes cast at a general election to ratify an amendment, calls attention to the manner in which the Alabama legislature has succeeded in evading the ordinary result of such a provision. The legislature in that state provided that "any elector desiring to vote for said amendment shall leave such words intact upon his ballot, and any elector desiring to vote against said amendment shall evidence his intention to so vote by erasing or striking out said words with pen or pencil." This resulted in all ballots not marked in the negative being counted in favor of the amendment, the reverse of the practice in Minnesota. It would be very unfortunate indeed to be compelled to resort to such a subterfuge in Minnesota, yet circumstances can be imagined in which even such a practical nullification of the amendment of 1898 might be more desirable than the alternative of having a constitution which was almost unamendable. Indeed, a close examination of section of article 14 gives some ground for the belief that the Alabama method may be entirely constitutional in Minnesota. There is nothing, for example, to prevent the legislature from requiring the proposed amendments to be printed upon the same ballot with the candidates for the important state offices. This would
19 House bill 289, introduced by Representative Lauderdale. The bill was indefinitely postponed. A similar provision has just been adopted in Nebraska, but the percentage was fixed at thirty-five.
1 Dodd, op. cit., p. 191.
prevent indifferent voters from entirely ignoring or even throwing away their amendment ballots. The legislature could then further enact that all such ballots had been cast for the amendments unless the voter had, in some distinct way, marked a negative upon them. In order to be entirely fair to the voter, the legislature might even go so far as to have a warning notice printed at the head of the ballot, informing the voter of the effect of his not marking any choice upon the amendments, but this would probably not be necessary to establish the constitutionality of such an enactment. The special reason for believing that this plan would be constitutional lies in the fact that the section in question says that "if it shall appear in a manner to be provided by law, that a majority of all the electors voting at said election, shall have voted for and ratified such alterations or amendments, the same shall be valid to all intents and purposes, as a part of this constitution." In the past the law has been that a failure to vote should be counted as a negative vote; there is but little reason why, in the future, the legislature could not provide that a failure to vote, under the conditions specified above, should count as an affirmative vote.
In concluding his discussion of the various methods of amending state constitutions, Professor Dodd says: "Of the methods of popular ratification most employed-(1) by a majority of those voting on the measure, even though it be a minority of those voting on other matters at the same time, (2) by a majority of those voting at the election when the proposal is submitted— the second has proven practically unworkable, without schemes for the counting of votes which practically nullify it; the first, on the other hand, often permits constitutional alterations by a small minority of the electors, and is objectionable for this reason. It is a question whether the second plan, aided by party endorsements or by the Alabama method of voting, is not better than final action by a minority. Under the Alabama plan an elector votes for an amendment unless he is definitely opposed to it; he is presumed to be for it rather than against it if he does nothing."23
5. THE COURTS AND THE ADOPTION OF AMENDMENTS. One of the interesting facts about the amending process is that the determination of the state canvassing board as to whether an amendment has been adopted or rejected is not necessarily final. It has been held that "whether a constitutional amendment has been properly adopted according to the requirements of an existing constitution is a judicial question."24 In the determination of such questions "the controlling presumption" is in favor of the statement and
22 Minn. Const., art. 14, sec. I. to the voters on separate pink ballots.
23 Dodd, op. cit., p. 198.
Italics mine. Constitutional amendments are today submitted
24 McConaughy v. Secretary of State, 106 Minn. 392, 409; 119 N. W. 408, (1909).
certificate of the state canvassing board. "In a collateral proceeding this certificate is conclusive, ... and in a direct attack it can be overthrown only by very clear and satisfactory evidence."25 The burden is upon the contestant. Any legal voter may institute a contest in a state district court, serving notice at the same time upon the secretary of state.26 There is provision for the inspection and recounting of ballots, also, although the almost insuperable difficulty in recounting the vote of the entire state must be evident to all.27 Nevertheless, such a recount was proposed in the case of the prohibition amendment in 1918 and might have been carried out had not the success of the national prohibition amendment been so fully assured at the time as to make the state amendment unnecessary. A very interesting contest, with unique results, followed the election of 1906. In that election there were submitted to the voters, among other propositions, the so-called "wide open tax amendment," and a new road and bridge fund amendment.28 On the ballots the tax amendment was number 2, and the road amendment number 1. On the tally sheets and in the tally books, however, this numbering was reversed. When the ballots were canvassed, the state canvassing board assumed that this error had not resulted in any material error in the returns. The total vote having been 284,366, the required majority for adoption of any amendment was 142,184. Upon this basis the tax amendment was declared adopted with a vote of 156,051, and the road amendment lost with a vote of 141,870.29 Two contests were immediately instituted in the St. Louis county district court. One of the contestants aimed to overthrow the tax amendment which the canvassing board had declared adopted; the other wished to have the road amendment declared adopted. Both came on for trial before the same judge. A recount of the ballots was begun. Some ballots were counted from all but two counties, and in all nearly half of the vote of the state was counted. However, this represented only 654 of the 2,670 election districts of the state, making it evident that the larger districts were the ones first inspected. In 71 districts the ballots had been destroyed; no effort was made to recount the votes in 1,945 precincts. It was evident from the recount that the error in printing the tally sheets and books had resulted in a considerable number of errors in counting the votes. On the other hand, there was no uniformity of error. In some precincts there was no error; in some the road amendment gained as a result of the recount, and in others the tax amendment gained. There was only what might be called an "average error," or a general tendency to error, in favor of the tax amendment and against the road amendment. So great was this average error that had it continued
Ibid., pp. 427-28.
26 R. L. 1905, sec. 336; Sess. Laws 1911, ch. 59; Gen. Stat. 1913, sec. 529.
Gen. Stat. 1913, sec. 530.
28 Sess. Laws 1905, ch. 168, 212. See pp. 189-90, 193, 240, 246-47 for further discussion and for the texts of the amendments.
Leg. Man. 1907, p. 489.