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Analysis

Voters Amend State Constitutions to Enshrine New Rights

From abortion to voting rights, amendments creating new state constitutional rights were approved at the ballot box.

November 16, 2022
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State constitutions are far easier to amend than the federal constitution — and on Election Day, voters in several states passed amendments that added new rights to their state constitutions. Such changes can be significant because while state constitutions cannot infringe on rights provided by the U.S. Constitution, they can protect additional rights.

In every state, the state legislature can propose constitutional amendments (and in everywhere but Delaware amendments must also go before the voters). In 18 states, voters can also place a constitutional amendment directly on the ballot without legislative involvement if they collect a certain number of signatures. The average number of amendments for a state constitution is 115, far more than the U.S. Constitution’s 27 amendments.

Here are some notable new state constitutional rights that voters approved this year.

Reproductive Rights Enshrined in California, Vermont, and Michigan

In California, Vermont, and Michigan, voters passed ballot measures that will add rights to reproductive freedom to their state’s constitutions. They are the first states to do so explicitly, although state supreme courts in 10 states have previously ruled that their state constitutions protect abortion rights under existing provisions.

The most immediate impact will be in Michigan, where advocates say the amendment invalidates the state’s 1931 abortion ban, which is currently blocked by a state lower court ruling.

Bolstered Voting Rights in Michigan

Michigan voters approved a constitutional amendment that adds an explicit “fundamental right to vote” to the state constitution, enforceable by state courts, along with a number of provisions that expand voter access. Among other things, the amendment establishes the right to at least nine days of early in-person voting, and it requires ballot drop boxes and prepaid stamps for absentee ballots provided by the state.

The Amendment also establishes a right for voters to sign up for a permanent absentee voter list and automatically receive mail-in ballots each year, as well as for voters to have the option to sign an affidavit verifying their identity if they are unable to provide a photo ID at the polls. Many of these requirements already exist in state law but will now be protected under the state constitution.

In addition, the amendment will require all election audits to be conducted by election officials in public and mandates that election results must be certified based only on the official record of votes cast. This last section follows challenges to the 2020 presidential election results and calls for external “forensic audits.”

An Equal Rights Amendment in Nevada

Nevada will become the latest state to adopt a state-level Equal Rights Amendment. It joins 27 other states with that have either comprehensive Equal Rights Amendments or other gender equality provisions in their constitutions.

Although efforts to ratify a federal Equal Rights Amendment have not yet been successful, many states have adopted state-level equality provisions. Nevada’s newly adopted amendment prohibits the denial of equal rights on the basis of “race, color, creed, sex, sexual orientation, gender identity or expression, age, disability, ancestry, or national origin.” This makes it the most comprehensive Equal Rights Amendment in any state constitution and Nevada the first state to explicitly prohibit discrimination on the basis of sexual orientation, gender identity, or gender expression.

Four additional states have active campaigns to add Equal Rights Amendments to their constitutions, including New York, where advocates are working to add a measure to the ballot in 2024.

The Right to Bear Arms in Iowa

Iowans voted to amend their state constitution to add an explicit right to bear arms, with language specifying that any laws restricting gun rights would be subject to strict scrutiny by the courts.

All but five states have such a Second Amendment analog in their state constitutions. Iowa is now the fourth state with similar “strict scrutiny” language in its constitution, following Alabama, Louisiana, and Missouri. The National Rifle Association has been advocating for similar measures across states for years.

Collective Bargaining Rights in Illinois

In Illinois, voters approved an amendment that grants employees the “fundamental right to organize and bargain collectively.” The amendment also prohibits the passage of any law that would interfere with this right, which proponents say would prohibit “right-to-work” laws that enable workers in a union workplace to refuse to pay union dues.

Marc Poulous, an attorney for the campaign advocating to pass the amendment, referenced Dobbs v. Jackson Women’s Health, which overturned Roe v. Wade this year, as a motivation to add workers rights into the state constitution as a “proactive approach” to ensure that neither Congress nor the Supreme Court can erode Illinois workers’ rights.

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Some groups have already begun collecting signatures for 2024 amendments in arenas such as reproductive rights. Going forward, look for constitutional amendments to continue to be an important vehicle for establishing state constitutional rights.