UNIVERSITY OF ILLINOIS mmamammm Participants' Edition The Illinois Constitution Background Papers Assembly on the Illinois Constitution Robert Allerton House Monticello, Illinois January 25-26, 1962 THE INSTITUTE OF GOVERNMENT and PUBLIC AFFAIRS L I E> RARY OF THE ur ihl UNIVERSITY OT ILLINOIS 342.773 As7«l ILLINOIS IBTOWWl SPIN ILLINOIS hlolORY SUKVSt LIBRARY) The person charging this material is re- sponsible for its return to the library from which it was withdrawn on or before the Latest Date stamped below. Theft, mutilation, and underlining of books are reasons for disciplinary action and may result in dismissal from the University. To renew call Telephone Center, 333-8400 UNIVERSITY OF ILLINOIS LIBRARY AT URBANA-CHAMPAIGN THE ILLINOIS CONSTITUTION background papers for participants ASSEMBLY ON THE ILLINOIS CONSTITUTION Allerton House, Monticello, Illinois, January 25-26, 1962 Edited by Lois M. Pelekoudas Institute of Government and Public Affairs University of Illinois January, 1962 34<2. 773 ft £ ' ^C' ^ 11 «0 FOREWORD The Institute of Government and Public Affairs is pleased to sponsor the Assembly on the Illinois Constitution, a forum in which the broad problems of the Constitution will be discussed. Invited to parti- cipate in the Assembly have been some forty Illinois leaders from political life, journalism, business, labor, and the academic world. After the Assembly the group's findings and the papers in this volume will be made wiiely available. Several leading Illinois citizens who have over the years given much thought to the problems of the Illinois Constitution agreed to pre- pare background papers for the Assembly. In addition, the undersigned prepared a specialized paper on voting on constitutional amendments. Each paper was written for the purpose of stimulating discussion; none pretends to be exhaustive research analysis. The authors were given maximum freedom in preparing their papers, and the views expressed are their own, and not thos^ of the Institute. The Institute as such does not take stands on public issues. Assisting in the planning of the Assembly has been an advisory committee consisting of William G. Clark, Attorney General of Illinois; State Senator George E. Drach; Samuel W. Witwer, attorney-at-law; Richard G- Browne, formerly Executive Officer, Teachers College Board; Professor Rubin G. Cohn, University of Illinois Law School; and William L. Day, Director of Research, Illinois Legislative Council. The assistance of these people is greatly appreciated. Samuel K. Gove Acting Director Institute of Government and Public Affairs Ill TABLE OF CONTENTS Page FOREWORD ii LIST OF AUTHORS iv INTRODUCTION v THE SHAPE OF THE DOCUMENT 1 Samuel W. Witwer MODERNIZING A STATE CONSTITUTION s* Richard G. Browne THE CASE FOR A CONSTITUTIONAL CONVENTION 18 Robert L. Farwell THE CASE AGAINST A CONSTITUTIONAL CONVENTION 24 George E. Drach CONSTITUTIONAL AMENDMENTS AND THE VOTER 35 Samuel K. Gove APPENDIX 50 1 . LIST OF AUTHORS Richard G. Browne, formerly Executive Officer, Teachers College Board George E. Drach, State Senator, with the law firm of Drach, Howarth, and Terrell, Springfield Robert L. Farwell, Chairman, Chicago Bar Association Committee on Constitutional Revision, formerly Trust Officer of the Continental Illinois National Bank and Trust Company of Chicago Samuel K. Gove, Professor, Institute of Government and Public Affairs, University of Illinois Samuri w. Witwer , with the law firm of Witwer, Moran and Burlage, Chicago formerly President of the Illinois Committee for Constitutional Revision INTRODUCTION Constitutional reform is not a new topic in Illinois. Ever since the adoption of the present Illinois Constitution, in 1870, considerable time and energy have been spent in attempts to change specific articles or to revise the entire document by convention. However, only thirteen amend- ments have actually been adopted. The persistence of interest in revising the Illinois Constitution has led to the holding of this Assembly on the Illinois Constitution, which brings together some forty public officials, journalists, academics, and interest group representatives to discuss whether constitutional change is necessary or even desirable and, if it is, what method of change might be employed. The Assembly procedure will be to divide the participants into three round-table sections to discuss concurrently questions relating to the Illinois Constitution. In a final general session, the Assembly will adopt findings developed out of the section discussions. In the American political tradition, a constitution is a document setting forth the framework of government and delimiting its functions. It is the fundamental law of the state, and is thought of as something distinct from and superior to ordinary statute law; therefore, constitutions are made harder to change than ordinary laws. Generally, constitutional change in American states involves submission of amendments by the legislature oc a convention and ratification by the people. These cumbersome amendment procedures in themselves, however, do not fully account for the difficulty Delaware is the only one of the American states that does not re- quire ratification by the voters of proposed constitutional amendments. Ther< , the legislature can ratify amendments. VI of constitutional revision. No matter how difficult the procedure may be, a determined majority in any state can change a constitution or, indeed, can i^.scard it altogether. The real problem seems to be the resistance to change within the society and the consequent inability to put over any kind of constitutional revision. A constitution has no magic "rightness" in and of itself. However, it supports and legitimizes an institutional framework which, in turn, affects the decisions made by any group of officeholders at any time. In addition, a constitution articulates political and social values dominant at the time of its adoption, such as the belief that government can not be trusted and that its power must therefore be limited and diffused among a number of branches (the whole idea of a written constitution is a monument to the fear of unlimited governmental power). To put it another way, the constitution formally establishes institutions and sets out governmental precepts representative of the values of its framers and of the social unit (the state) which adopted it. Although external conditions change--for example, industrialization and urbanization create undreamed of problems in a previously rural society — the values of the social unit, kept alive by the institutions established to perpetuate them, change more slowly and sometimes do not change at all. "Efficiency" and "modernization" are not in themselves compelling reasons for change; only when traditional instJ tutions no longer promote currently dominant values is there hope- -or need-- for constitutional revision. Even when a disparity exists between legitimacy as put forth in the document and the currently held values of the society, no constitutional reform is likely until the disparity becomes apparent to grea. numbers of people, and until no alternative remains to constitutional cha\: but flagrant constitutional evasic... Open evasion is not easily VI 1 countenanced, for it violates the widely held belief in the basic, in- violable nature of a constitution. To illustrate, the revenue article of the Illinois Constitution restricts taxing power to a uniform levy on property. This limitation has dictated reliance on the sales tax (state) and the property tax (local) for revenues, resulting in a de facto limitation on the amount of revenue that can be raised (e.g., a political limit on the tax rate). The Constitution is r^aded by making no effort to collect a tax on intangible property, whi ch constitutionally must be taxed uniformly with tangible property. As the demand grows for increased governmental expenditures, the revenue article, designed for a state with a dispersed population and limited need for governmental action, becomes inadequate in terms of currently held idsab of what government should be doing and how its activities should be financed. Tax rates increase, and the groups who carry the brunt of state and local taxes begin to see a need for redistributing the tax burden. However, fear of giving state government power to levy any taxes it desires Is still strong throughout the state, and a number of politically powerful groups profit from keeping the tax system exactly as it is. Although the need for more state revenue has caused the real political controversy to shift from whether the revenue article should be amended to how it should be amended, the absence of any consensus on which goals should be pursued, on which values should be institutionalized in an amended revenue article, ma/- constitutional change unlikely to occur. The recognition of a constitution as a document legitimizing cer- tain institutions forces a lock at the nature - !: the^e institutions and their place in the total society. Much of the opposition to constitutional change may be attributed to a vague fear of how such change might affect viii institutions and traditions which may not be explicitly mentioned in the document (for example, elimination of cumulative voting for members of the Illinois House would not only change the composition of the legislature, but might also force changes in political parties). If this is the case, proponents of constitutional "modernization" are obligated to assess the oossible consequences of any change much more thoroughly than they have, to now, shown much sign of doing. To date, most reform literature rests on the major premise that all reasonable men who are for "good government" will support any given constitutional change if they can only be educated to realize how important it is. Little attention is given to the possi- bility of effecting some changes in governmental structure and policies by legislation (e.g., the 1959 General Assembly made justices of the peace county officers, reduced their number, and changed the method of paying them from fees to salaries). Constitutional revision tends to become, in the minds of its supporters, an end in itself, and the emphasis is on what techniques will bring about revision instead of on whether revision is really necessary or desirable. The fundamental questions implicit in the background papers con- tained in this volume, and to be discussed at the Assembly, appear to be, What institutions and traditions are supported by the Illinois Constitution, and would they be threatened by changes proposed? Is the kind of govern- mental activity expected by Illinois citizens possible without constitu- tional change? And finally, if constitutional change is desirable, what method--constitutional convention, piecemeal amendment, or something else altogether--seems most likely to succeed? IX Summary of the Papers To aid Assembly participants in the discussion of the Constitution, five background papers have been prepared. Each of these papers is intended to point up possible topics for discussion on one aspect of the need for and techniques of constitutional change; none is intended to be an in- clusive treatment of a particular set of problems. Mr. Witwer, in "The Shape of the Document," suggests several re- spects in which the Illinois Constitution may adversely affect the practical effects of government. He cites, as specific sections of the Illinois Constitution which need immediate overhaul, the articles on the judiciary (up for amendment in November, 1962), revenue, the executive department, local government, and the amending process. Methods of "Modernizing a State Constitution" are discussed by Mr. Browne, who, after demonstrating the need for revising the Illinois Constitution, describes the two obviously available methods--constitutional convention and legislative action--and a third device which has been em- ployed elsewhere, the constitution study commission. Mr. Farwell, in his "Case for a Constitutional Convention," sets forth the weaknesses of the piecemeal approach to constitutional revision in terms of its inability to put forth a unified revision of the document and its tendency to succeed only where what is to be made is a drastic reform that captures the public imagination. The other side of the convention versus legislature question is argued by Mr. Drach, who questions the need for any wholesale revision of the Constitution. He raises the question of whether statutory change alone might not solve most problems, with piecemeal amendment as a way to major changes. Mr. Drach questions the representativeness of a conventioi X ir.ade up as it would be of two delegates from each senatorial district, and suggests that the Illinois experience with constitutional revision makes the chances for its success appear slight, except for individual amendments that are generally felt to be necessary. Recent experience with constitutional change in Illinois is dis- cussed in some detail by Mr. Gove in "Constitutional Amendments and the Vottr." By analyzing the vote on proposed amendments since the adoption oi Gateway in 1950, Mr. Gove finds that in a few Illinois counties, notably Cook County and those surrounding it, voters approve most con- stitutional amendments, while in a number of downstate counties, voters almost always vote against proposals for constitutional change. Ques tions for Discussion The following list of possible discussion questions has been derived from the background papers. The list is not intended to confine discussion to the topics covered; rather, the questions should serve as general guides to the kinds of topics that might be treated in the round-table discussions. 1. In what ways, if any, does the Illinois Constitution actually hamper the operation of the Illinois state government? Is constitutional revision the answer to these problems? 2. Aside from the arguments of age or length, what reasons are sifc ificant for effecting constitutional revision? 3. Is it accurate to assucce that one's sense of urgency about the need for constitutional revision is dependent upon one's views of the importance of state government in our federal system? XI 4. In the case of judicial reform, the General Assembly moved to erase some of the problems following the electorate's rejection of a pro- posed judicial reform measure. Are there other areas in state government where the General Assembly might act within constitutional limits to ease some of the "problems" created by the Constitution? 5. Should the Constitution be "brought up to date" by a complete constitutional change, or is a system of individual offerings for the various sections within the Constitution more appropriate? 6. Assuming that some changes need to be made, would the commission syster of study and recommendation as described in several of the background pape. -. :;e a satisfactory expedient in such a study? What are the problems which seem to be resolved by setting up such a commission to precede (or preclude) a constitutional convention? Is this system without its own inherent problems? 7. Is there general agreement that the biggest hurdle to amending the state constitution by convention would be getting two-thirds of the members of both houses of the General Assembly to submit the question of calling a convention to the voters? Has this proven to be the case? 8. A number of techniques for the submission of amendments to the electorate has been suggested. Is this a real problem in the relative unwillingness of the electorate to accept constitutional change? 9. If a new constitution should be presented to the electorate for possible adoption or rejection, should it be presented in totality or so that every section is treated independently of the others? What problems aris^ vom each of these techniques? 10. In an analysis of voter acceptance or rejection of constitutional amendment proposals, is there any significant difference in the subject matter of amendments which are rejected or accepted? What reasons might xii lie behind this pattern, if such a pattern exists? 11. There is some suggestion that if a new constitution or amend- ments to the Constitution were submitted in elections separate from primary or general elections, they would stand a better chance of passage. Wha ; ; are the problems implicit in such a proposal? What are the problems present in the current system? THE SHAPE OF THE DOCUMENT Samuel W. Witwer If anything may be said with assurance concerning Illinois government, it is this: The state of our state Constitution is bad, and thoughtful citizens know it. While opinions differ as to just how bad the situation is and what may be done to remedy it, few informed persons would question the need for a general overhaul of the state's basic law. Only those who believe in a relatively static society should find satisfaction in the pre- sent shape of the document. To this observer, the state of our Constitution is shockingly bad and a reproach to the people of Illinois. This is no theoretical conclusion based on comparisons with the "ideal" or model state constitution which was recently formulated by political scientists. Actually, the situation is too urgent and ominous to permit the luxury of theoretical considerations. It is in the practical operating effects of the Illinois Constitution—or more accurately, in its failure to operate in the interests of good government- -that any meaningful evaluation of the Constitution should be made. So tested, the condemnation expressed above seems fully warranted. Even a casual study will show that the virus under- lying the many political illnesses of the state is to be found in rigid, antiquated, and unworkable provisions of the Constitution of 1870. Justice Cardozo once wrote, "A constitution states, or ought to state, not rules for the passing hour but principles for an expanding future." The Illinois document was not so drafted. Instead, it was fashioned as an instrument of restraint and inhibition, reflecting the Benjamin N. Cardozo, The Nature of the Judicial Process (New Haven: Yale University Press, 1921), p. 24. 2 popular distrust in 1870 of the executive and legislative departments of government and of the judicial as well. Replete with restrictive provi- sions, the document embodied not only the traditional and wise federal system of checks and balances, but also an inner structure of additional checks and balances. Written in the context of a rural and agrarian society, it was fashioned to meet the needs of the times and not for the complex urbanized and industrialized society of the twentieth century. For that matter, who then could have foreseen the vast and sweeping changes in Illinois life which were to come in the ensuing ninety-two years? In fairness to the 1870 draftsmen, it must be said that our present problems are not so much the result of the originally restrictive character of the document as they are the consequence of the rigidity which was built in after 1870. Under the balloting procedures in force at the time of the adoption of the Constitution, amendments and revisions were not herculean tasks. However, as a result of an unforeseen change in the ballot laws in 1891 (the adoption of the Australian ballot, which deprived the amending process of the aid of "party-ticket" voting and direct partisan support), coupled with a doubtful decision of the Supreme Court of Illinois which held in effect, that electors going to the polls but failing to vote in a 2 constitutional referendum are to be counted as voting "no," the Constitution became extremely difficult, if not virtually impossible, to amend or revise. Since 1891, there has been an endless discussion of ways and means of modernizing the Constitution, and repeated efforts to revise it have failed. Now Illinois' constitutional problems are coming home to roost in a menacing manner not before experienced. The grave troubles which threaten a breakdown of the administration of justice in populous sections of the state and the 2 People v. Stevenson , 281 111. 17 (1917) 3 fiscal crisis which looms ahead in our state government illustrate what can happen when a state chooses to do business under "rules for the passing hour'" rather than under "principles for an ejcpanding future." Almost twenty years ago, Professor Kenneth Sears, a leading constitutional scholar, said, "Illinois, everything considered, is in the worst position of any state in the Union." His challenge remains valid today. If anything, the situation is twenty years worse. No attempt will be made to catalog all the respects in which the document is deficient or to do more than summarize briefly major constitu- tional problems. One thing not lacking in Illinois is a literature of con- stitutional reform. Many studies have been published relating to specific articles of the Constitution to which reference may be made for a more 4 comprehensive analysis than is presented in this paper. Article VI, the judicial article, is so defective that it requires complete revision. With the exception of the Chicago charter amendment of 1904, which permitted the abolishment of justice of the peace courts in Chicago, it has never been changed. Only by makeshift efforts has it been 3 Kenneth C. Sears and Charles V. Laughlin, "A Study in Constitutional Rigidity," Part II, The University of Chicago Law Review , 11 (June, 1944), p. 439. 4 Chicago Bar Association, A Constitutional Convention for Illino is, 1947; Kenneth C. Sears, "Constitutional Revision and Party Circle Bills," The University of Chicago Law Review , 14 (December, 1946), pp. 200-214; Walter J. Cummings, Jr., "Amending the Revenue Article of the Illinois Constitution," Chicago Bar Record , 29 (July, 1948), pp. 259-268; Samuel W. Witwer, Jr., "A Constitutional Convention for Illinois," Illinois Bar Journal , 37 (September, 1948), pp. 9-16; Barnabas Sears, "Constitutional Revision: A Must," Illinois Bar Journal , 38 (February, 1950), pp. 247-251; Way land B. Cedarquist, "The Continuing Need for Judicial Reform in Illinois," DePaul Law Review , IV (Spring-Summer, 1955), pp. 153-172; Robert S. Cushman, "The Proposed Revision of Article IX of the Illinois Constitution," University of Illinois Law Forum , Summer, 1952, pp. 226-247; Louis A. Cohn, "The 1955 Jud'oial Article Amendment," Chicago Bar Record , 36 (February, 1955), pp. 229-:<30. Samuel W. Witwer, Jr., "The Illinois Constitution and the Courts," The University of Chicago Law Review , 15 (Autumn, 1947), pp. 53-77. 4 possible to keep operative an archaic judicial system in a period of tremendous population growth and social change. The faults are many and serious. Most difficulties stem from the defective organization which pre- vents our many courts from coordinating their work and from operating in an efficient and businesslike manner. In Cook County particularly, numerous trial courts of overlapping jurisdiction bear peculiar and arbitrary rela- tions to each other. Here, as elsewhere in the state, failure to unify the system results in much waste, gross delays, excessive costs to litigants, and a growing backlog of cases which threatens breakdowns in the administra- tion of justice. In Cook County alone, almost 70,000 untried jury cases are docketed, and delays in trial are exceeding five years. The situation there is described as the worst in the nation. Article VI provides no effective means of removing judges who be- come mentally or physically disabled, and impeachment, the present constitu- tional means of removal for misconduct, is a dead letter. The partisan method of electing judges has not worked in major Illinois cities. In some cases, it has brought the courts into disrepute. As long as Illinois elects its judges, the constitutional terms of judges should be lengthened because relatively short terms of office, which require judges to campaign as partisans at regular intervals, impair judicial independence. The districts for electing judges of the Supreme Court are grossly unequal and should be revised. Because of archaic jurisdictional provisions, that Court has little control over the character of cases which it will re- view. It simply does not have sufficient time or opportunity to construe new statutes or to develop the common law and equity jurisprudence of our Louis Banks, "The Crisis in the Courts," Fortune , 64 (December, 1961), pp. 86-93i. 5 state to meet changing social and business conditions. The present statutory provisions affording the Supreme Court administrative superinten- dence of the courts will be effective only when buttressed by constitutional saactions. The Court should be freed of unnecessary burdens of review if it is to carry out this responsibility. In short, the fundamental weakness of the present judicial article is its rigidity and inelasticity. No department of state government requires more flexibility than the judiciary in meeting the momentous changes that have occurred in the flow of litigation. Fortunately, the amendment to the judicial article to be submitted to the voters at the November, 1962, elec- tion will deal effectively with all of the defects mentioned other than the elective method of choosing judges. It presents an opportunity for a major breakthrough for better government. If adopted, it will give Illinois as modern and efficient a court system as may be found anywhere. The revenue article, Article IX, competes with Article VI for imme'IJ.ate and over-all correction. Since 1891, six direct attempts to amend the revenue article have failed. Improvement of the article was probably the main reason underlying the five unsuccessful attempts to adopt a Gateway Amendment prior to the successful Gateway effort of 1950. The article has been the subject of endless and merited criticism. The requirement that all property be taxed uniformly is not and can not be observed under present economic conditions, for honest enforcement would drive intangible property from the state. We have "gotten by" under the clause by a pattern of individual and official evasions and falsifica- tions. Because intangible property has not borne its fair share of the tax burden, the only avenue open to the legislature has been to increase repeatedly the rate and scope of the Retailers' Occupational Tax. The revenue mainstay of local government has been the tax on real estate. It is 6 doubtful that Illinois can much longer pile the increasing load on these two work horses. A revised revenue article distributing the burden of taxation more equitably and providing the revenue to meet the legitimate needs of govern- ment should not necessarily require recourse to a net income tax. In the prevailing political climate of the state, substantial revision of the revenue article will be delayed many years if the work of revision must aw~. . agreement on including the net income tax in the tax structure. The provision limiting municipal indebtedness to 5 per cent of the assessed value of property has backfired in the results sought to be achieved. Its purpose has been evaded by the creation of overlapping local government units. This technique of evasion has pyramided expenses of municipal govern- ment and has resulted in a diffusion of operating responsibility. In some counties, it has proven a primary obstacle to achieving organization of unit school districts. There is no logical reason for electing all state officers as pro- vided in Article V, dealing with the executive department. In the national government, we take for granted the wisdom of electing only the president and vice-president. In Illinois, we carry the elective method to the ridiculous extent of electing the supe rintendent of public instruction. Political realities being what they are, it is perhaps wholly theoretical to consider an Illinois system which would completely parallel the national system. Certainly, considering the diminished status of the state auditor and the character of services performed by the superintendent of public in- struction, these two offices could well be made appointive by the governor. This would be a step toward shortening our present long ballot. Article X, on counties, affords little flexibility in county 7 and township government. It too is a relic of the past. It describes with particularity the types of local government, requires election rather than appointment of innumerable officers, and generally encourages in- efficiency and irresponsibility in local government. In 1913, a joint legislative committee reported to the General Assembly, after a survey of county and township government, that "the present decentralized and un- organized administrative machinery produces inefficiency and waste in the transaction of public business." That legislative committee recommended constitutional changes, but no changes were made. Almost half a century has passed, and the conditions described in that report are today even worse. The Chicago charter amendment, Section 34 of Article IV, is a bad example of draftsmanship and is out of date. With the overwhelming majority of citizens now living under municipal government, the need to revise Section 34 is not limited to Chicago alone. Urban matters, such as trans- portation, utilities, planning, neighborhood development, and slum clearance, are essentially local affairs. It should be possible for Chicago and other cities of the state to deal with these and similar matters without the de- lays and obstacles incident to constant recourse to the legislature. Article XIV, which specifies the methods of changing the document, is, of course, the key to revision. It is a big question mark. Section 1, relating to the constitutional convention method, remains practically un- workable because approval of a convention call requires a majority of all votes cast for any measure or any person in the general election. This requirement poses a formidable obstacle to a convention under present balloting procedures because so many voters fail to vote on constitutional questions. While the Gateway Amendment in 1950 and reapportionment in 1954 secured the required vote under this test, conditions surrounding their Q adoption were favorable. Since 1954, no constitutional amendments have been adopted. Unless the legislature can be induced to enact a "party- circle" bill restoring some semblance of the balloting method which pre- vailed when Article XIV was drafted and up to 1891, advocates of a consti- tutional convention would do well to make their primary goal a revision of Section 1 in order to provide a reasonably attainable test for determining whether such a convention should be called. In spite of the Gateway Amendment, which added the alternative two- thirds test to Section 2, that section continues to render altogether too difficult the adoption of separate amendments. The only revision of great public importance since Gateway was the reapportionment amendment, which was adopted under the old test as well as under the new two-thirds rule. However, the revenue amendment of 1952 and the judicial amendment of 1958, although failing, did come exceedingly close to meeting the Gateway test. Final evaluation of the Gateway method must await the outcome of the 1962 referendun on the new judicial amendment. Twelve years of painful effort to solve Illinois' constitutional problems should be enough to establish, one way or the other, the desirability of continued reliance on the Gateway approach. It is a ridiculous spectacle reflecting on our political backwardness that we allow the highly restrictive provisions of Article XIV to thwart needed changes in Illinois government, generation after generation. There are ways out of our constitutional morass whenever the state secures political leader- ship committed to the task of accomplishing the breakthrough. For recent (1952-1958) election returns, see Gove, "Constitutional Amendments and the Voter," infra , p. 45. 8 Robert L. Farwell, "Gateway to What?" DePaul Law Review , 10 (Spring- Summer, 1961), pp. 274-285. MODERNIZING A STATE CONSTITUTION Richard G. Browne The constitution of the state of New York is not a constitution in a proper constitutional sense. It is a mass of legal texts, some truly fundamental and appropriate to a constitution, others a maze of statutory detail, and many obsolete or meaningless in present times. Plainly, there is an urgent need for constitutional revision and simplification, the creation of a charter which will serve adequately and effectively as a constitution of the state of New York. * While the above description relates to the constitution of New York, it could also refer to the constitutions of Illinois and many other states. The Illinois Constitution, like that of New York, contains some provisions that are basically constitutional (Articles I-VII and Article XIV), others which are more properly statutory (much of the contents of Articles IX-XIII, plus the "Schedules"), and a few sections that are obsolete. Parts of Article VIII are in this last category, as are Section 4 of Article XI, dealing with street railways, and Section 33 of Article IV, dealing with the construction of the state house. The Illinois Constitution is defective in that it goes beyond pro- viding the basic framework of government and intrudes into the realm of statutory law. Furthermore, there are responsible objections to some of the basic provisions of a clearly constitutional character. Members of the 72nd General Assembly (1961) introduced no less than thirty-nine joint resolutions proposing constitutional change. Thirteen of these motions ^ First Steps Toward a Modern Constitution, Report of the New York State Temporary Commission on the Revision and Simplification of the Constitution, 1960. 10 proposed changes in Article IX, nine would have changed Article IV, six referred to Article VI, and the others would have changed Articles V, VII, X, and XIV. Since the adoption of the Gateway Amendment in 1950, 152 resolu- tions to amend the Constitution have been introduced in the Illinois General Assembly. This alone suggests the need for modernization. The totals by sessions are as follows: Session Number of resolutions 67th (1951) 17 68th (1953) 27 69th (1955) 17 70th (1957) 26 71st (1959) 26 72nd (1961) 39 Total 152 These resolutions proposed to amend the following articles: Article Number of resolutions IV 45 V 14 VI 26 VII 16 IX 33 X 10 XI 1 XII 2 XIV 5 Total 152 It is apparent that there is extensive dissatisfaction with much of the content of the Illinois Constitution. Careful reading of its provisions will usually demonstrate the desirability of modernization. A similar situation exists in many of the states. For one thing, state constitutions are generally too long and too detailed in their provi- sions. The average length of the state constitutions is about 27,000 words, 11 which is four times the length of the Constitution of the United States. The oldest constitutions still in use are the shortest (and they have been amended the least often). Five of the New England states are governed by constitutions adopted between 1784 and 1843; they vary in length from 6,650 words to 10,900 words. There seems to be a return to the conception of a constitution as a fundamental charter, as indicated by the length of the recently adopted constitutions of Alaska (1959, 12,000 words), Hawaii (1959, 11,400 words), and New Jersey (1947, 12,500 words). The most extreme example of a long constitution is that of Louisiana. In 1921, that state adopted its tenth constitution, a treatise of more than 200,000 words. It has already been amended 376 times, an average of ten amendments each year. The need for modernization may also be indicated by the frequency of amendment. Since 1870 the United States Constitution has been amended seven times. Contrast with this such state constitutional changes as the fr-i lowing: State Alabama California Florida ILLINOIS Michigan Nebraska New York Pennsylvania South Carolina Texas Virginia The only state constitutions to be amended less often than the constitution of the United States since 1871 are the three (Alaska, Hawaii, and New Jersey which have been in existence less than fifteen years (Missouri in 1945 Date of present Amendment s constitution adopted 1901 140 1879 327 1886 106 1870 13 1908 66 1875 79 1894 133 1873 59 1895 231 1876 140 1902 91 12 adopr ed a relatively long constitution which already has eight amendments). The frequency of amendment is another evidence that too many constitutions have what Justice Marshall called the "prolixity of a legal code." The Constitution of Illinois presents something of a unique problem. It is older, shorter, and less frequently amended than most of the state constitutions. Sixteen states have constitutions which are older than that of Illinois (1870). However, of these, only three constitutions, if one may judge by the length of the documents, contain such detailed provisions as does that of Illinois, and these three have been more frequently amended than has the Illinois Constitution. The three are Massachusetts, with 98 amend- ments; Maryland, 114; and Oregon, 229 (as compared to the 13 amendments of Illinois). We may characterize the Illinois Constitution as follows: For an old constitution (in its ninety-second year), it is relatively long and detailed; thus, it stands in need of modernization. Every Illinois governor for at least fifty years has pleaded for modernization, and most legislators have acknowledged the need. However, amending the Illinois Constitution, almost impossible before 1950, is more than ordinarily difficult today. How can modernization be achieved? The Illinois Constitution may be amended either by a convention or by the legislature. Both methods require approval by a popular referendum to become effective. The steps in revision by convention are as follows: 1. The General Assembly, by a two-thirds vote in each house, submits the question of calling a convention to the voters at a general election. 2. If a majority of the persons voting at the election favor a convention, the next General Assembly issues a call for the convention. I 13 3. The people then elect two delegates from each senatorial district (1)6 delegates in all). 4. The convention meets within three months after the election and drafts a proposed revision. 5. Proposed changes must be approved by referendum held not less than two nor more than six months after the convention adjourns. To amend the Illinois Constitution by legislative initiative, the procedure is as follows: 1. Amendments are proposed by the vote of two-thirds of the members of each house. Not more than three amendments may be proposed at one session, and no change to a given article may be submitted oftener than every four years. 2. The referendum must be held at the next general election and, to pass, must receive either a majority of all persons voting at that election or two-thirds of those voting on the amendment. Both of the procedures in Illinois are relatively difficult. Thirteen states permit the people to initiate amendments by petition. Nine states re- quire a vote on the question of calling a constitutional convention at fixed 2 intervals (seven to twenty years). At least eight states require less than a two-thirds vote in the legislature to place "con-con" on the ballot. Three-fourths of the states permit simple majorities to approve constitutional referenda. Only six states other than Illinois require approval by a majority of those voting in the election, and only one other requires as many -:. two-thirds of those voting on the proposition. Despite Gateway, ^A 1960 amendment to the Michigan constitution provided for the calling of a constitutional convention in 1961 and for a vote on whether to call a convention every sixteen years. A convention is now meeting in that state. 14 the Illinois Constitution is still very difficult to change. Revision by constitutional convention is a slow and arduous process, and piecemeal revision may be equally difficult. Whichever road is taken, it is essential to devise means of marshalling the best possible skills in drafting the changes and also to find ways of securing the widest possible understanding and support of them by the citizens. To achieve similar goals, about a third of the states have used constitutional revision commissions. A constitutional revision commission is created to study the organic law of the state, either in part or in its entirety, and to submit proposals either for thoroughgoing revision or for piecemeal amendment. These commissions can be classified into four types: 1. A commission established by law as the joint product of the legislative and executive branches. This is the most common type and has been used in recent years in Florida, New York, North Carolina, Georgia, Minnesota, New Jersey, South Carolina, Tennessee, Vermont, Pennsylvania, and Te:cas. 2. The executive type, established by the governor alone. Such advisory commissions have been appointed by the governors of Michigan, Kentucky, Wisconsin, and New York. 3. The legislative type, created by the legislature without execu- tive participation. California once created a "Joint Interim Committee on Constitutional Revision" by concurrent resolution of the legislature. It was composed of ten members from each hous e. 4. Private groups or special assignments to existing bodies. Citizen groups have been established in California, Iowa, Missouri, and Massachusetts, while, in 1919, Illinois granted the Legislative Reference Bureau an emer- gency appropriation of $10,000 to assemble data for use by the constitutional convention. 15 An examination of the results in some fifteen states suggests that these commissions have been useful, especially those of the first (joint legislative-executive) type. This type of commission is believed to have the following advantages and disadvantages: Advantages 1. Relatively small in size, commissions facilitate free discussion and quick :ion. 2. Tney are less costly than constitutional conventions. 3. Members are appointed and can Le persons of superior competence and judgment. A. With legislative members, the commissions profit from legislative experi- ence and are likely to produce results which are acceptable to lawmakers. Disadvantages 1. Appointed commissions are less representative than elected bodies. 2. A governor, through his appointments, might unduly influence a commission's work. 3. Commission recommendations may tend to reflect only the wishes of legislators. 4. There is less public interest in the work of commissions than in the work of conventions. It would seem that the disadvantages listed are largely irrelevant in i state like Illinois where a commission's proposals would be subject to later approval by either a convention or the legislature and by the people. It is true that some commissions have proposed changes that have failed to secure approval, but even in such cases, their work has served to point up the issues, enhance public understanding, and prepare the way for later action. 16 The operation of a constitutional revision commission may be illus- trai-ed by the experience of New Jersey. In 1941 the New Jersey legislature provided for a seven-member commission to study the constitution and suggest amendments. The Speaker of the House appointed two persons--a judge and a county freeholder. The President of the Senate named a senator and the director of the Princeton Surveys. The Governor chose a senator and a citizen with wide legal and political experience. These six chose a news- paper editor to be the seventh member. The commission employed a secretary and two assistants, one to deal with public relations and one with research and drafting. Technical assis- tance was provided by the Princeton Surveys. No public hearings were held, but the commission members met, in private, each Friday and Saturday for three months. The commission recommended a totally new constitution and, in 1942. gave a draft of its revision to the legislature. This body was highly critical of the draft but proposed a referendum to authorize the legislature to sit as a constitutional convention to prepare a new constitution. The voters ratified this procedure, and, in 1943-1944, the legislature constituteG itself as a constitutional convention and prepared a proposed constitution somewhat different from the commission's draft. The people rejected this proposal in November, 1944. However, the seeds were sown. In 1947 the legislature, under pressure from the governor and the citizens, called a constitutional conven- tion, and the people elected eighty-one delegates to it. The convention met from June 12 to September 10, 1947, and prepared a new constitution which the voters ratified in November. 17 The approved draft followed much of the 1942 report of the consti- tutional revision commission. Whole sections have identical language. Some revisions of substance were made, incorporating the legislative proposals of 1944 or, in some cases, departing from both of the earlier drafts. There is no doubt that the 1942 draft established the starting point for the new constitution. Nor is there any question that the work of -.he constitutional revision commission had significant educational value. By stimulating public discussion of the proposed changes it hastened the modernization of the document. The Illinois Assembly on State Government, meeting at Allerton Park on February 21-23, 1958, suggested "a continuing legislative commission to study proposals for constitutional change and to make recommendations there- on to the legislature," The 72nd General Assembly passed Senate Bill 93 to create such a commission. This bill would have created a "Constitution Study Commission" of eighteen members, six from each house and six public members, and carried an appropriation of $25,000. In vetoing this bill, the .overnor indicated that he believed the creation of such a commission should be deferred until the fate of proposed amendments to Articles VI and IX is decided. In addition, he stated that he would prefer a commission empowered to study both constitutional and statutory revision. The 1958 Assembly on State Government also suggested that there should be established in each legislative house a standing committee on constitutional amendments, which could be created by independent legisla- tive action. Such committees, if established early in the session, might hold joint hearings and seek to advance an agreed program of constitution?.! amendments. In 1959, a subcommittee of the Executive Committee of the Illinois House was created to study constitutional amendments introduced, and in 1961, the House established a standing Constitutional Amendments Committee. 18 THE CASE FOR A CONSTITUTIONAL CONVENTION Robert L. Farwell In over ninety years of experience with the present Constitution, citizens of Illinois have approved few amendments. This could be attri- buted to the excellence of the document or to the difficulty of amending it. Before 1891 parties prepared their own ballots and included on them party-endorsed amendments, so that voting a straight party ticket automa- tically gave support to the party position on any amendment proposed at an election; during this period five amendments were adopted out of five pro- posed. After 1891, when the Australian ballot was adopted, the required favorable majority of those voting in an election became much more diffi- cult to obtain. From 1891 to 1950, only two amendments received approval out of a total of fourteen proposed. In addition, voters in 1918 approved calling a constitutional convention, but later they refused to accept its proposals; in 1934 the voters refused to approve the calling of another convention. In 1950, a Gateway Amendment was adopted, to increase the number of amendments which could be proposed at each election and to pro- vide, as an alternative to the existing procedure, that an amendment could be adopted by a favorable vote from two-thirds of those voting on it. Five out of the ten amendments subsequently proposed were approved. It is a widely held belief that the difficulty of amending the Illinois Constitution, not a lack of need for amendments, has limited the number of changes. As recently as the 1940' s, the bar associations and League of Women Voters supported a proposal to call a constitutional con- vention. Concern was expressed with more than a dozen different provisions of the Constitution as it then read. Of these provisions, only the 19 amendment process itself, apportionment of legislative districts, and double liability of bank stockholders have since undergone revision. Proposed revision of the judicial article failed in 1958, but a new pro- posal will go before the voters in 1962. The piecemeal method has failed to bring before the voters a sub- stantial number of proposals for revision. There are those who would argue, moreover, that the compromise settled upon for reapportionment was more politically expedient than wise, and that considering the record, the new amendment process is still not liberal enough to allow for revision of the Constitution. Gateway has increased the rate of amendment, but three of the five amendments passed since 1950 would have been adopted under the old test. Gateway allows the amendment of several articles at one time to speed the process of revision and to make possible consistency in the revised document. Only partial advantage has been taken of this. On the other hand, the reapportionment amendment did reduce the power of certain legislators who opposed the calling of a constitutional convention in 1949. Its indirect result, therefore, might be to open the way to "con-con." Under the piecemeal amendment process, dramatic reforms, such as reapportionment, capture the public imagination sufficiently from time to time to bring about some revision. However, it is difficult, if not im- possible, to arouse the public to needed changes in government structure and procedure. Although the piecemeal process usually produces debate in the legislature on the merits of a proposal, the debate may completely skip ovei technical matters of considerable significance to the success of the amendment. The public debate, which usually begins after the legislature has passed a resolution, can damage the campaign unnecessarily by high- lighting technical aspects of an amendment which might have been considered 20 and dealt with prior to submission in final form. Many good arguments have been put forward for a constitutional study commission to avoid the pitfalls in the amendment process. A commission can have experts to do the basic research, to stimulate a creative approach to old problems, and to draft appropriate language for the conclusions of the commission. Members of the commission, which can work efficiently because of its small size, can be selected from among the ablest members of the community. They can afford to be sensitive to but independent of pressure groups and individuals representing vested interests. A commission can provide a forum for the expression and consideration of different opinions and can be expected to uncover or generate the leader- ship necessary to complete the revision process with a successful legisla- tive and public campaign. We in Illinois, however, have not taken warmly to this method of amending our Constitution. Proposals for revision have been considered the exclusive prerogative of the legislature. Except for this peculiar atti- tude, I might recommend the commission method over a constitutional con- vention as more likely to produce revision, easier of attainment, and cheaper in the long run. In Minnesota a highly successful commission, which brought about subtantial revision in the state constitution, recommendt that once every twenty years the people should automatically be asked to vote on whether or not to call a convention. The automatic vote avoids the hurdle represented by the legislature, which otherwise can block for years not only needed amendments but also a constitutional convention; and over- comes the objection that initiation of constitutional revision, which For a discussion of types of commissions, see Browne, "Modernizing a State Constitution," supra , pp. 14-15. 21 affects all branches of government, should not be left solely in the province of the legislature. In the words of a former Chicago Bar Association Committee on Con- stitutional Convention, there are matters of fundamental importance which can most profitably be considered by a convention rather than by individual 2 groups interested in changing one article by process of amendment. Any recitation of provisions which might be considered would include a short ballot, terms of office and off-year elections, minority representation, annual budget, gubernatorial veto, and merit system of employment. The problem of state revenues is old and well documented; it has been brought before the voters six times. The revenue problem is compelling be- cause if it is unsolved it can undermine basic state programs and respon- sibilities and lead to public cynicism and illegality. The words of former Governor Adlai E. Stevenson are particularly appropriate in this regard: "In another environment, the energetic ingenuity we have developed here in Illinois to avoid the anachronism of our constitution might be amusing. But it cannot be amusing when it concerns basic principles of our form of govern- ment. A constitution as Americans look at things is to be respected and 3 obeyed, not evaded and flouted." Since Nebraska in the early 1930' s adopted a unicameral legislature, no state has experimented creatively with the problem of representation. A population explosion and a concurrent movement toward urbanization threaten the usefulness of old boundaries and methods for determining representation. 2 Annual Report , Committee on Constitutional Convention of the Chicago Bar Association, May, 1948. Address by the Hon. Adlai E. Stevenson before the League of Women Voters, October, 1948. 22 Thorough exploration should be made of new methods for preserving the institution of representative government in spite of drastic changes in circumstances. Such a study could hardly fail to consider home rule, ini- tiative, and referendum as important phases of the problem. The existence of the strategy of total war and modern methods of warfare give added significance to the problem of succession and selection of state officials, for it is conceivable that an entire slate of state officers would need to be replaced overnight. The substitution of appointed for elective officers in various branches of the government might tend to ease a number of problems. Annual or continuous sessions of the legislature might be adopted. Some further thinking needs to go into the way in which state government might be carried on in spite of disaster or be abandoned in favor of local governments. Four study commissions of the federal government in less than fifteen years have failed to produce meaningful changes in federal-state relations. Recently, the joint commission on Mental Illness and Health proposed that a federal-aid program be initiated to share the cost of state and local mental-patient services; this proposal was also made to the Governors Conference. If such a proposal were adopted, another substantial state program would drift to the federal government for reasons of financing. A modern constitution should provide adequately for those functions the state government can best perform and arrange for sharing some and giving up others. For example, provisions might be included to allow counties and townships to vanish and interstate agreements to flourish, if that be deemed desirable. There are those who will argue that the convention method is un- satisfactory because it is unrepresentative. Others will argue that any meaningful proposals will be defeated at the polls by special interest 23 groups. These arguments and the answers to them are in realm of conjecture. With stimulation and inspiration, the voters could elect to the convention persons of high caliber and extensive experience who could overcome partisan, sectional, and economic bigotry. We do have responsive and responsible organs of communication which could be enlisted to overcome the opposition of pressure groups to proposed revisions. In a special election called to pass on the proposals of a convention, every vote would count; there would be no problem created by uninterested voters who fail to vote on constitu- tional referenda (there would, of course, be a serious problem if either party worked against the proposals). The biggest hurdle to amending the Constitution by convention seems likely to be getting two-thirds of the members of both houses of the General Assembly to submit the question of calling a convention to the voters. It has been said that one's sense of urgency about the need for revision depends on one's view of the importance of state government in our federal system. Before we agree, if we are to agree, that state govern- ment is unimportant, we should take a long look at what we are giving up. The outstanding needs in our own state should lead us to take a bold step to examine our position rather than to sit back and watch creeping paralysis overtake our institutions and undermine our programs. This step is to convince our legislators that a constitutional convention is necessary as 9Qon as possible. \ 24 THE CASE AGAINST A CONSTITUTIONAL CONVENTION George E. Drach The suggestion that a constitutional convention be authorized and convened in Illinois presupposes that there is an impelling need for com- prehensive revision, that a convention is a better forum than that provided by legislative commissions and committees and by the General Assembly, and that there is some reasonable expectation that a revised constitution would receive popular approval when submitted to the people. None of these premises is tenable, if we are to be realistic, when a convention is considered in the light of current events or of the history of constitutional revision in Illinois. Histories of Illinois constitutional revision are available in public libraries. One is contained on a single page in a booklet published by the Secretary of State for free public distribution. Excerpts from that publication will serve as a basis for detailed discussion. The present Illinois constitution, adopted in 1870, is the state's third constitution. The first was adopted in 1818 when Illinois was admitted as the 21st state of the Union. This document prevailed as the legal basis of the state government until the adoption of the second constitution in 1848. There was strong agitation for still another constitution in 1862 and, in fact a constitutional convention was held that year but the pro- posed constitution failed of adoption when submitted to a popu- lar vote. The agitation for a new constitution continued, however, and in 1869 another constitutional convention was authorized. The resulting constitution of that convention was adopted by the electorate in July of 1870 and became effective in August of the same year. ... A constitutional convention was held in 1920, but the constitution presented by that body in 1922 was rejected by the voters and a proposal for another constitutional con- vention was rejected in elections held in 1934. 25 Until the fall election of 1950, the Illinois constitution had not been amended in the forty-two year period since 1908. During this period, nine amendments were submitted to the voters for consideration and in each case the proposed change wan rejected. Previously, in the period 1870 to 1908, ten amendments were submitted to the voters, of which seven were adopted. The main reason for the past failures in attempts to amend the constitution has been the restrictive provisions of the amending article of the 1870 constitution which provided that an amendment, after submission by a two-thirds vote of the legislature, was subject to approval at a general election by a majority of the persons voting in the election. Consequently, any voter entering the polling place to vote for candidates and not voting in either the negative or affirmative on the proposal was in effect recorded as having cast a negative vote. . . . The "Gateway" amendment was adopted in the fall election of 1950 after a vigorous campaign by various civic groups. This amendment, the first one successful in five attempts to change the amending article, provided that future amendments may be adopted by either a majority of the electors voting at the election or by two-thirds of the electors voting on the pro- posed amendment. Another major change included in the 1950 "Gateway" amend- ment was the provision that the General Assembly at any session can submit proposed amendments to as many as three different articles of the constitution rather than but one amendment to a single article, as had been the limit in the past. This provision does not limit the total number of amendments to three, since more than one amendment to a single article can be submitted to the voters at each election. In the fall rJection in 1952, for example, the electorate had an oppor- . -'Jaiity to vote on four different amendments; two of these were adopted. In' 1954, three amendments put before the voters were adopted. Only one amendment was on the ballot in 1956 and it failed. The two amendments before the voters in 1958 also failed. 1 In our zeal to modernize, we must not fail to distinguish between the retention of basic rights and established limitations and the adaptation of statute law to meet changing conditions. What portions of the Illinois Constitution of 1870 would the propon- ents change? We should not omit our gratitude, as expressed in the preamble, Government in I llino is (Springfield: Office of the Secretary of State of Illinois, 196G; , p p . 3.4, 26 to Almighty God for civil, political and religious liberty. Certainly we can not change the geographical boundaries set out in Article I. Obviously, there is no reason to alter the bill of rights contained in Article II, nor the basic concept of distribution of powers among the executive, legislative, and judicial branches, as contained in Article III. Resolutions have been proposed in the General Assembly to amend Article IV, relating to the legislative department, by eliminating minority representation in the House of Representatives as it is now provided through cumulative voting; but none was ever submitted to popular vote. Nor has an amendment been offered to the people relating to Article V, concerning the executive department. Twice since 1870, proposals to amend Article VI, on the judicial department, have been passed by the General Assembly. One failed in 1958, when 64 per cent of the people voting on the issue favored the amend- ment; the second will be submitted to the people in 1962. No one has suggested that the articles or. suffrage (Article VII), and education (Article VIII) are not desirable. It is principally the need for removing inequities in revenue (Article IX) that suggests that other articles might also be revised to meet modern conditions. Since 1870, scores of resolutions have been proposed in the General Assembly to amend the revenue article. Six times, an amendment to this article has been sub- mitted to the people, and six times, the effort failed--in 1916, 1926, 1930, 1942, 1952, and 1956. However sincere the desire of any advocate of revenue reform, one can not contend that an amendment presented by a constitutional convention would find different public reaction than one proposed by the Genera. Assembly. And some dcubt must be expressed that the quality, acumer , and knowledge of the delegates would exceed that of the members of the General Assembly. 27 It is said that regular sessions of the Illinois legislature are too occupied with other business—budgets , appropriations, taxes, and other items amounting ordinarily to more than 2,500 bills—to give detailed atten- tion co constitutional needs; a convention is not concerned with details of this character and can take the long view. It may be remarked, however, that conventions do not necessarily limit themselves to constitutional issues. At least, the Illinois Convention of 1862 sought to investigate the executive department; reduced the terms of state officers from four to two years and ordered an election for state officers in the following November, even though the present state officers had served but two of their four-year torms; sought to ratify a proposed amendment to the United States Constitution and to redistrict the state for representatives to Congress; and attempted to issue bonds and enact laws by passing ordinances. Apart from theoretical considerations (and the experience with the 1862 Convention), the composition of a convention that might be called in Illinois is likely to make it less acceptable than the legislature as a forum for consideration of constitutional issues. A convention is to be made up of two delegates from each senatorial district. Since area, not population, is a "prime consideration" in the formation of senatorial districts in Illinois, a convention would not be representative of the people on a population basis. Of the fifty-eight senatorial districts, twenty-four are apportioned to Cook County, which has slightly more than half of the population of Illinois. The most grossly underrepresented are the suburban areas of Cook County; in 1960, these areas had 15.7 per cent of the population of Illinois, but only 10.3 per cent of the senate districts (six out of fifty-eight). Chicago had 35.2 per cen . 28 of the population and 31.0 per cent of the districts (eighteen). Downstate had 49.1 per cent of the population and 58.6 per cent of the districts (thirty-four). 2 It seems evident that the basis of representation provided for a constitutional convention in Illinois is not representative of the people, and for that reason, such a convention would be a less desirable forum for considering constitutional changes than the legislature itself. Two general criticisms made of the Illinois Constitution of 1870 are as follows: (1) It is too old. However, about one-third of the states are opei "cing under constitutions that antedate the Illinois Constitution. (2) It is too detailed. It is 17,000 words in length. Half of the states have even longer constitutions, including California (75,000 words), Louisiana (201,000), Massachusetts (over 28,000), New York (45,000), and Texas (43,000). In a pamphlet issued before the 1934 vote on a convention proposal, the Legislative Reference Bureau devoted a chapter to "Problems Arising Under the Constitution of 1870" and discussed taxation, legislative appor- tionment, municipal home rule, minority representation (i.e., the system of cumulative voting in electing state representatives), the judicial system, the short ballot, double liability of bank stockholders, county and local governments, and the amending process. The amending process was modified by the adoption of the Gateway Ame T K'ment in 1950, as noted, and subsequent amendments have resulted in For possible implications of the prescribed composition of a con- vention, see Gove, "Constitutional Amendments and the Voter," infra, p. 39-42. 29 remo> i.ng from the list three of the topics listed above--the amending pro- cess, legislative apportionment (amendment adopted 1954), and bank stock- holders' liability (amendment adopted 1952). Taxation has been the subject of two identical revenue amendments submitted unsuccessfully since 1950--in 1952 and again in 1956. (On the second occasion, 60 per cent of those voting on the amendment voted in the negative). A revised judicial article was the subject of an amendment voted on in 1958; it failed of achieving either of the required majorities by a small margin. Another judicial article revision proposal will be on the ballot in 1962. Meanwhile, the justice of the peace system has been re- formed by legislation. Municipal home rule, as a subject for constitutional provisions, has always been debatable; it has become more so in recent years with the reali- zation that it may actually impede desirable moves toward local government consolidation in metropolitan areas. There remain the short ballot and constitutional problems concern- ing the county and local governments. As concerns the short ballot, any reduction in the number of elected constitutional officers is not possible without constitutional change, and any comprehensive change, affecting state and local governments, could probably not be expected by way of the ordinary amending process. With regard to local governments, the tremen- dous progress in consolidating school districts suggests that the General Assembly, by legislation, can accomplish much within existing constitutional provisions. In addition to the familiar attempts to revise the revenue and judicial articles and the successful reapportionment amendment, recent pro- posals have dealt with legislative sessions and terms of legislators; the 30 voting age; structural changes in state government (e.g., making the state auditor and state treasurer appointive rather than elective officers); local government, including proposals for municipal home rule and for authorization of the county-manager form of government; and a few miscellany (e.g., to legalize charitable bingo). These proposals would not seem to justify a constitutional convention. Five constitutional conventions have been held in Illinois. The first convention assembled pursuant to an act of Congress, and the Consti- tution of 1818, which it drafted, became operative on December 3, 1818, without a vote of the people. The four other conventions assembled follow- ing a vote of the people. The constitutions submitted to the voters by the convsntions of 1847 and 1869-1870 were adopted; the constitutions submitted by the conventions of 1862 and 1920-1922 were rejected. The question of calling a convention has been submitted to the people en eight occasions. On four of these favorable action by the voters led to the conventions noted above; in four other cases--in 1824, 1842, 1856, and 1934--the proposal to call a convention failed of popular adoption. It seems that, in the light of history, the chances of securing popular approval for calling a convention are no better than 50-50. In turn, the chances of obtaining ratification of the charter proposed by such a convention are also 50-50 It may thus be said that the historical odds against obtaining constitutional changes by the convention method are four to one. In com- parison, since adoption of the Gateway Amendment, ten amendments have been proposed, and five of them have been ratified. The chances for success are 50-50. The experience of the unsuccessful conventions of 1862 and 1920-1922 31 indicates some of the practical pitfalls of the convention method of consti- tutional revision. The document drafted by the convention of 1862 was, in several re- spects, said to be an improvement over the Constitution of 1848, and some of its principles (e.g. , the limitations on special and private legislation) were carried forward into the Constitution of 1870. The Constitution of 1862 appears to have been rejected because of resentment toward the conven- tion. The convention met during the Civil War, and charges of disloyalty were iaade against a majority of the members. The convention acted in a partisan manner and went beyond the scope of its authority. There is no reason to assume that a convention in the 1960's would be devoid of politi- cal partisanship and free from urban-rural bias and conflict. The reasons for the failure of the constitution proposed in 1922 have been summarized as follows: (1) The convention, instead of submitting the more controversial issues of the Constitution to the voters as separate propositions, submitted the entire Constitution as a unit, so that it had to stand or fall as a whole. As a result every group of voters opposed to any of the provisions were compelled to vote against the entire Constitution to defeat the provision to which they objected. . . . (2) The convention sat two and three-quarters years (with fre- quent adjournments) before it could agree on a program. . . . The prolongation of the session caused the people to lose interest and confidence in the convention's work. (3) The convention also made the mistake of attempting to re- write the whole Constitution instead of merely changing the pro- visions that actually needed change. . . . The people became fearful of the inclusion in the Constitution of things they did not understand, and they were anxious to avoid the uncertainty that would arise from an entirely new document. . . . (4) The convention also inserted a considerable volume of detail into the new Constitution, without liberalizing the amending clause sufficiently to make the Constitution 32 adaptable to changing conditions. . . . The article on taxation in particular contained an excessive amount of detail. With the anxieties of people mounting as the cold war becomes hotter, this is not the time for a convention. The convention of 1862-- r.roposed by the legislature in February, 1859, approved by the people in 1860, elected in 1861, and convened in 1862 after the Civil War had begun-- came to naught because the times were not appropriate. The need is not proved. Certainly, because of the adoption of half of the amendments proposed since 1950, the pre-Gateway argument --that the amending process is unworkable- -is greatly weakened. As indicated above, the historical odds are against anything useful emerging from a proposal to call a convention. On practical grounds, the amending process involves two major steps (legislative action and popular vote) and is speedier, less cumbersome, and less expensive than the convention process, which involves six major steps: (1) -ction by the legislature; (2) action by the people in approving the call: (3) action by the legislature in providing for the election of delegates, expenses of the convention, etc.; (4) action by the people in electing delegates; (5) action by the convention itself; and (6) final action by the people in voting on the proposed constitution. The cost of a convent ion- -not merely in the outlay for the elections, salaries, and other expanses necessarily involved, but also in human time and effort--is tremendous. For those who feel urgently the need for con- stitutional change, the chances are that the same energies, directed toward ■3 "'Illinois Legislative Reference Bureau, The Constitution of Illinois (Spvingfield, 1934), pp. 29-30. 33 ob: fining results through the legislative amending process, would be much more productive. Variants on the amending process and the convention method should be mentioned because they may represent a "middle way" between the amending process in its usual form and the constitutional convention. There are (1) legislative constitutional revision commissions to propose amendments and (2) the limited constitutional convention. Some states have created constitutional commissions from time to time. In Illinois, joint legislative commissions have been created in recent years to propose amendments to the judicial article (1951), the revenue article (1953), and the legislative article with respect to annual sessions (1955). A bill for a joint constitutional revision commission (Senate Bill 93) passed both houses in the 1961 session but was vetoed by the Governor. In at least ten other states commissions of this kind have been created. In Florida, Kansas, North Carolina, Pennsylvania, and West Virginia, commissions have submitted proposed amendments to the legisla- ture; in Kentucky, New York, and Texas, commissions have submitted interim reports looking toward constitutional revision. Commission activity of this kind has also been noted in Oregon and Wisconsin. New Jersey vcters approved a proposal for a limited constitutional convention which met in 1947 and resulted in the New Jersey constitution of that year. The convention was limited in that it: was instructed to re- tain the existing territorial limits of counties and their respective bases of representation in the legislature; each delegate was bound by oath to observe this limitation. Kentucky voters in 1960 had an oppor- tunity to call a convention limited to twelve specific topics. Tuv 34 The proposal failed. The idea of the "limited convention" may be taken as a symptom of distrust of what a constitutional convention might propose. Some lawyers might relish the thought of litigating new constitu- tional language, and the courts might be better informed of the drafters' intent as expressed in the journalized debates of a constitutional convention. Meanwhile, however, the people might suffer unduly until- their rights and the limitations on governmental powers could be analyzed and construed by the courts. Even if we disregard the current concern over the cold war which impels the people against change, it is doubtful that the Illinois voters would trade in the existing constitution for a charter with unknown poten- tial r ies. 35 CONSTITUTIONAL AMENDMENTS AND THE VOTER Samuel K. Gove The Illinois voter makes the final decision on whether a constitutional amendment is to be adopted. Since the passage of the 1950 Gateway Amendment, which eased the amending requirements, the voters have shown considerable selectivity in approving amendments. Of ten amendments, concerned with several dissimilar issues, submitted in four of the five general elections sinct :950, the voters approved five and defeated five. In two instances they reaffirmed their original negative vote by rejecting more decisively amendments submitted a second time. These double defeats account for four of the five defeats. By analyzing the voting behavior on the post-Gateway constitutional amendments, this paper attempts to identify trends and developments which may be important in the future. The ten amendments submitted since 1950 have covered a variety of issues of importance to different groups. The issues have included signi- ficant governmental changes as well as some rather minor matters. In 1952 the voters were confronted with four proposed amendments to In addition to the amendments listed here, several other state and local referenda were before the general election voters in this period. In 1952, 1956, and 1958, amendments to the state banking act were on the main ballc . as distinguished from the separate ballot used for constitutional amendments. These amendments needed only a simple majority of those voting for passage, and all were approved. In 1958, referenda for bond issues to finance institutional buildings and a Korean war veterans' bonus were on separate ballots. These issues, needing the favorable vote of those voting for members of the General Assembly, were both defeated. In 1960 two separate building bond issues were before the voters, and this time, as a divided question, they were approved. Thus, it should be noted that only in 1954 was there not at least one statewide referendum before the voters in addition to the constitutional amendment. 36 three articles of the Constitution. These were (1) a new revenue article permitting the classification of property, but prohibiting a graduated in- come Max— defeated ; (2) an amendment permitting county sheriffs and treasurers to succeed themselves in off ice- - defeated ; (3) an amendment re- moving from the Constitution salary limitations for county officers-- approved ; and (4) an amendment removing the double liability of state bank stock owners - - approved . In 1954, three additional amendments were submitted: (5) an amendment providing for a reapportionment of state legislative dis- trict s--aporoved; (6) an amendment extending the term of state treasurer from two to four years -- approved ; and (7) an amendment permitting the state to sell land used in connection with the Illinois-Michigan Canal - - approved . In 1956, only one amendment was submitted: (8) the same revenue article sub- mitt ed in 1952 --amendment (1) above -- defeated . In 1958, two amendments were submitted. The first (9) proposed a major reorganization of the state judi- ciary --defeated_, and the second (10) was a county officers amendment iden- 2 tical to that submitted in 1952 --amendment (2) above- - defeated . No amend- ment? were submitted in 1960. Figure 1 shows graphically the statewide, Cook County, and downstate vote for each of the amendments submitted. This figure illustrates the im- portance of the Cook County vote to the passage or failure of an amendment. No amendment has carried downstate, and the percentage of favorable vote in Cook County has been perhaps the most important factor in determining whether an amendment was adopted or rejected. 2 Throughout the tables and text in this paper, the amendments are coded to the numbers used here in parentheses. 95 FIGURE 1 SUMMARY OF VOTING ON CONSTITUTIONAL AMENDMENTS SUBMITTED 1952-1958 (Per Cent of "Yes" Votes of Those Voting on Amenr-mint) 95 90 85 80 75 70 Cook County / 66.7% Vote / 65 Passage 60 55 50 45 40 35 Statewide Vote Downstate Vote / 90 85 8C 75 70 60 55 50 45 40 35 30 2 3 1952 6 1954 8 9 10 1956 ~1958~ 30 38 An amendment can be approved by a favorable vote of two- thirds of those voting on the issue, or by a majority of those voting in the election. Two of the amendments approved received only the two-thirds vote, while the three approved in 1954 received both the two-thirds and majority votes. Generally, Cook County voters have approved the amendments under both count- ing ui3thods, although the 1952 revenue article (1) received only the two- third-, vote. Amendments (8) and (10) were defeated in Cook County under both counting methods. The voting pattern in Chicago has followed that of the suburban area. The most noticeable deviations were in 1952 and 1958. In 1952, the Chicago voters approved the revenue article by a two-thirds vote, while the suburban voters failed to approve it. In 1958 the city voters de- feated the county officers amendment (10), while in the suburbs a majority of those voting in the election voted favorably on it. In downstate counties a particular amendment received a majority of the vote in the election, but failed to get a two-thirds vote on the issue in only a few instances. This was the situation in Marshall County on the three amendments submitted in 1954. Generally this indicates a high degree of voter participation, a point discussed later. The final determiner of whether an amendment is adopted or rejectee is the statewide vote, not the vote in a particular county or a number of counties. However, the Cook County vote is of obvious importance, because of its size, and because of the tendency of Cook County voters to favor referendum propositions. In a sizeable number of counties the reverse is true, and voters seem consistently to reject referenda. Table 1 indicates how many counties, large and small, voted for or against the ten amendments considered. (A breakdown of how each county voted on a percentage basis Ls included in the Appendix. ) 39 TABLE 1 VOTING BY COUNTIES ON CONSTITUTIONAL AMENDMENTS SUBMITTED 1952-1958 (Number of Counties) The Amendments 1952 1954 1956 / 1958 1 2 3 4 5 6 7 8 9 l n Approved, 2/3rds only 15 8 32 43 14 15 10 Approved, majority only 1 112 3 Approved, both majority and 2/3rds 2 5 7 25 25 25 4 Defeated 86 92 65 52 62 61 65 102 95 102 From Table 1 it can be seen that not once did as many as half of the counties approve an amendment. The closest was the banking amendment (4) in 1952, which was approved by fifty counties. However, amendment (4) did not receive the highest favorable vote on a percentage basis; the 1954 legislative apportionment amendment (5) has this distinction. This em- phasizes the point made earlier that the number of counties alone is no in- dicator of success; the vote in Cook County and other large counties is the real key. The other counties in the Chicago metropolitan area play an impor- tant role in the outcome of constitutional amendments. DuPage and Lake counties supported the proposed amendments with the same degree of regularity as did Cook County voters. These three counties are the only ones to have 40 app. ved the same eight amendments. The two amendments defeated in all three counties were the second submissions of the revenue article (8) and the county officers amendment (10). The other urban counties throughout the state have a more negative voting record on amendments, with St. Clair and Madison counties the negative extreme. Madison County has failed to approve any amendments, while St. Clair approved only the 1954 legislative appor- tionment amendment (5). As indicated in Table 1, a number of counties disapprove amendments with considerable regularity. In fact, thirty-six counties have never approved an amendment. Apparently a considerable part of the Illinois popu- lation votes "no" consistently, either because of a lack of information cr a consciously negative attitude on the issues involved. It would seem that at least one of ten amendments covering a variety of issues would have been popular in these counties. That none was suggests a rather widespread basic neg?tive voting philosophy in certain parts of downstate. To determine the areas of consistent opposition to constitutional amendments, the voting record of each county was determined (see Appendix). Counties with a regular negative voting record (i.e., counties that approved 4 two or less amendments) are indicated on the map on the next page. These 3 DuPage County voters approved the 1952 revenue amendment (1) by only a majority of those voting in the election. The favorable percentage vote of those voting on the issue was 65 per cent. 4 A study of voting records by counties on the state bond issues submitted in 1958 and 1960 shows that several of these negative counties voted for the building bond issues, and many more voted for the Korean bonus . MAJOR. SOURCES OF OPPOSITION TO CONSTITUTIONAL AMENDMENTS SUBMITTED I95Z-I953 NO. OF AMENDMENTS APPROVED COUTOFIO) I I •• • • • • . 42 counties have had varying partisan voting records over the years, and cer- tainly as a group can not be classified as either Republican or Democratic. Although the "negative" counties cover a sizeable area of the state, only 21.7 per cent of the state's population is included within their borders. These counties include most of the territory in eighteen senatorial districts, and would elect over 30 per cent of the delegates to a constitutional con- vention under the present system of representation. The data were analyzed to determine which of the ten amendments were approved in those counties approving only one or two amendments. Eight of the thirteen "one -amendment" counties shown on the map approved the 1952 banking amendment (4). Three approved the legislative reapportionment amendment (5), and two approved the four-year treasurer amendment (6). Of the .en counties approving only two amendments, the largest number (seven) approved the 1952 banking (4) and the county officer salaries (3) amendments. One other approved the 1954 legislative apportionment (5) and four-year term for state treasurer (6). Two other counties approved one amendment in 1952 and one in 1954- -(4 and 7) and (4 and 6). There are great extremes among the downstate counties on percentage of the voters voting on amendments giving each issue a favorable vote. The affirmative vote ranged from a high of 92.1 per cent in Lake County on the 1954 legislative apportionment (5) to a low of 11.5 per cent in Johnson County on the same issue. Table 2 lists the counties having the high and low percentages on each amendment. 43 TABLE 2 VOTIIIG EXTREMES ON CONSTITUTIONAL AMENDMENTS SUBMITTED 1952-1958 Amendment Number High Per Cent Low * Per Cent 1952 " 1 2 3 4 Monroe Ford Ford Ford 74.7 72.1 77.4 79.5 Jefferson Hamilton Hamilton Hamilton 28.7 33.1 35.4 36.8 1954 r Q 7 Lake Lake Lake 92.1 86.9 87.5 Johnson Johnson Johnson 11.5 17.9 17.4 1956 8 Henderson 60.0 St. Clair 15.6 1958 9 10 Lake DuPage 70.5 62.1 Cumberland Edgar 22.7 27.3 Per cent of "yes" votes of those voting on amendment. The 1954 legislative apportionment amendment also brought the high and low percentage figures of favorable votes of those voting in the election, as contrasted to favorable votes of those voting on the issue. The high extreme was DuPage County, where 81.2 per cent of the voters going to the polls voted "yes" on the 1954 apportionment amendment. The low extreme was Johnson County, where only 8.3 per cent of those going to the polls voted favorably on the same issue. Low voter participation on constitutional amendment referenda had been ^L*:ed as a major reason for the failure of all amendments in the 1908- 1950 period because during that period an amendment could be adopted only by a majority of those voting in the election. The Gateway Amendment, as men- tioned earlier, provided an alternative method (two-thirds of those voting 44 on the amendment) of securing adoption. Of the amendments submitted since Gateway, only the three submitted in 1954 would have been adopted under the old method. The others would have failed by from 3.7 to 19.7 percentage points. Thus, amendments (3) and (4) are now part of the Illinois Constitu- tion because of the new two-thirds of those voting on the issue provision. Voter participation was relatively low in the first post-Gateway election in 1952; since then participation has increased. Table 3 shows voter participation on the ten amendments submitted. The figures in parentheses are for Cook County, where higher participation has been the 6 rule. From this table, it seems clear that the degree of participation ?lone does not determine the success or failure of an amendment. The lowest participation was on the 1952 vote on the revenue article (1), and the highest was on the second submission of the same article (8). Also, it can be noted that these participation extremes came in presidential years, a finding which suggests that participation, on a percentage basis, will be nc higher or lower in presidential elections than in off-year elections. One of the most interesting points raised by this analysis is the voting behavior on amendments submitted a second time. As has been mentioned, the revenue article (1) and (8) and the county officers amend- ment (2) and (10) were submitted twice. In each case, the amendment was more soundly defeated the second time. Table 4 shows the voting pattern on resubmitted amendments. No clear answer can be given to the question, The Gateway Amendment also permitted submission of amendments to three articles rather than to one, as had been the case. The lower voter participation downstate than in Cook County was also found in the 1958 bond issue referendum. 45 TABLE 3 VOTER PARTICIPATION ON CONSTITUTIONAL AMENDMENTS SUBMITTED, 1952-1958 (Data in Parentheses Are for Cook County) Amendment Total Vote Total Vote Not Voting Per cent of Number in Election on Amendment on Amendment Tot; Vot: al Vote Not Lng on Amend - ment 1952 1 4,563,305 2,969,885 1,593,420 34.9 (2,428,108) (1,733,890) (694,218) (28.6) 2 4,563,305 3,039,455 1,523,850 33.4 (2,428,108) (1,747,986) (680,122) (28.0) 3 4,563,305 3,005,155 1,558,150 34.1 (2,428,108) (1,733,920) (694,188) (28.6) 4 4,563,305 3,018,665 1,544,640 33.8 (2,428,108) (1,732,625) (695,483) (28.6) 1954 5 3,455,173 2,610,726 844,447 24.4 (1,853,480) (1,480,670) (372,810) (20.1) 6 3,455,173 2,555,801 899,372 26.0 (1,853,480) (1,450,495) (402,985) (21.7) 7 3,455,173 2,534,706 920,467 26.6 (1,853,480) (1,443,811) (409,669) (22.0) 1956 8 4,484,956 3,547,282 937,674 20.9 (2,330,979) (1,854,920) (476,077) (20.4) 1958 9 3,427,278 2,483,158 944,120 27.5 (1,845,607) (1,385,184) (460,423) (24.9) 10 3,427,278 2,519,486 907,792 26.5 (1,845,607) (1,399,573) (446,034) (24.2) 46 TABLE 4 VOTING ON AMENDMENTS RESUBMITTED (Per Cent of "Yes" Votes of Those Voting on Amendment) Revenue Ai tide County OJ rficers (1) 1952 (8) 1956 (2) 1952 (10) 1958 Cook County 66.9 43.9 70.5 65.1 Downstate 51.1 35.0 55.8 45.4 Statewide 60.3 39.6 64.2 56.3 What happened between the first and second submission? The organized oppo- sition to the revenue article was much more active in 1956 than it was in 1952. Also, in 1956 the revenue article was the only amendment put before the voters, while in 1952 it was one of four amendments submitted. Another factor influencing the vote on the revenue article might be the difficulty of "selling" any referendum involving a tax issue. No organized opposi- tion to the county officers amendment was evident in either 1952 or 1958. The Tost plausible, albeit untested, explanation for the failure of this amendment seems to be a basic widespread distrust of the holders of the two county offices involved. The question of second submissions is timely because a judicial article will be before the voters at the November, 1962, election; an amendment to reorganize the judiciary was defeated in 1958. An important distinction between this resubmission and the two cases mentioned above is that the judicial article submitted in 1962 differs in many respects from that submitted in 1958, and much of the opposition has been won over or at least neutralized. Along this line, it should be noted that the building bond issue submitted in 1958 was defeated by a rather close vote, but when 47 it was resubmitted in 1960 in a different form it was successful. Persons interested in constitutional change have been concerned with the relative chances for success of submitting an amendment in a presidential- year election as against in an off-year (non-presidential) election, as well as with the desirability of single-amendment submission as against multiple submissions. From the limited number of amendments that can be analyzed, there seems to be no basis for saying that there is more likelihood of success in either election year. It is obvious that successes and failures have occurred in both election years. The county officer amendments (2) and (10) were submitted in both presidential and off-year elections, and were defeated both times. The revenue amendments (1) and (8) were submitted only in presidential elections, but there is no evidence to indicate that the same amendment would have fared any better in an off-year election. The major consistent difference between off-year and presidential- year elections is that more voters (about one million more) participate in presidential-year elections than in off-year elections. The percentage of voters going to the polls but not voting on amendments fluctuates with no discernible pattern and is probably dependent on the contents of the amend- ment or amendments submitted. The other tactical issue considered by constitutional amendment proponents (i.e., single-amendment submission versus multiple submissions) can not be resolved by looking at the post -Gateway experience. On the surface, the 1954 and 1956 experience would seem to indicate that multiple submissions are preferable to single-amendment submission. On the other hand, had the revenue article (8) and the legislative apportionment (5) been switched in the years submitted, there is nothing to indicate that the out- come would have been different. In support of multiple submissions, the 48 popularity of the 1954 legislative apportionment amendment in certain areas seems to have increased substantially the favorable vote for the other two amendments that year, which involved relatively noncontroversial issues. The experience in 1952, however, would seem to suggest that the voters can be quite selective even under multiple submissions. In analyzing the 1952 results, one should keep in mind the low voter participation on the amendments. This analysis is based primarily on voting data. It virtually ignores the issues involved in each amendment and, more importantly, the campaigns conducted by the proponents and opponents of each amendment. These factors, which are beyond the scope of this paper, are very important in looking at past v.niendments and their success or failure as guides for the future. However, interesting trends and developments can be shown from an analysis of the voting data alone. First, all five amendments approved were approved in the first two electrons after Gateway; none has been approved since 1954. This raises the question of whether the "honeymoon" on constitutional reform is over. The close vote on the 1958 judicial article seems to indicate that this is not the case. Second, no amendment has received a two-thirds majority of those voting on the issue or a majority of those voting on the election in the downstate area. In fact, thirty-six downstate counties, mainly in the central-southern area, have defeated every amendment suhmitted, and twenty- three other counties approved only one or two amendments. Collectively, these fifty-nine counties would have about 30 per cent of the membership of a . onstitutional convention under the present representation basis. Third, from 20 to 35 per cent of the voters going to the polls have failed to vote on constitutional amendments; non-voting has been more 49 prevalent downstate. Participation has increased substantially since the first post-Gateway election in 1952, but it has been erratic in subsequent elections. Fourth, there is insufficient evidence to conclude that an amendment has a better chance of passage in a presidential-year election than in an off-year election, or vice versa. Fifth, there is insufficient evidence to determine whether an amendment submitted alone has more or less chance of passage than it would have when two or three other amendments are submitted at the same election. When more than one amendment is submitted at an election, there can be a considerable spread in the vote (illustrated by the 1952 election). On the other hand, it seems quite clear that a favorable vote on one amendment in 1954 increased the vote on other amendments. Lastly, there seems to be strong evidence to indicate that when ihz voters have made up their mind on a specific constitutional amendment, tUey ara unlikely to reverse themselves. The evidence for this statement is the second vote on the two amendments resubmitted. 50 00 m as i-i i •— \ CM 4J in C ON 0) r-4 B •o Q c W 01 H Q H S Q l-l ft * oo CO S CD O >< c_> S3 VH O O >■ •u H C 13 cu 3 t_) O sj M CU >- P-. 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