A Constitutional Convention for Rhode Island? The History and Legal Framework

This past Saturday, the Hassenfeld Institute for Public Leadership at Bryant University, the Roger Williams University School of Law, Common Cause Rhode Island, and the League of Women Voters of Rhode Island co-sponsored a forum on the upcoming general election ballot question of whether or not to hold a state constitutional convention in RI, and on the convention itself that might follow.

John Marion of Common Cause Rhode Island (which has not taken an organizational position, pro or con, on whether a Constitutional Convention should be held) gave an overview of the provisions that govern a constitutional ballot question, and various precedents from recent history. Here are some excerpts from his presentation…

“Let’s start with Article XIV, section 2 of the Constitution….This section was put into the Constitution in 1974. Patrick Conley, who many of you have heard speak in other venues, claims ownership and authorship of that, and it replaced a rather cumbersome process that we had in our prior constitution for amending the constitution. It replaced it with a pretty clean and understandable couple of ways to amend our constitution.”

“I’m going to begin with section 2. It begins with: ‘The general assembly, by a vote of a majority of the members elected to each house, may at any general election submit the question, “Shall there be a convention to amend or revise the constitution?” to the qualified electors of the state. If the question be not submitted to the people at some time during any period of ten years, the secretary of state shall submit it at the next general election following said period.”

“To the best of my knowledge, the General Assembly has never passed the necessary resolutions to put it on the ballot, so it has come down to the Secretary of State putting it on the ballot every ten years. We certainly know that the General Assembly has never put it on in-between the 10-year period.”

“The second sentence, beginning with “if the question the question be not submitted” has a little bit of a muddled history. In 2013, Dr. Conley, who authored this, testified before the Rhode Island Senate that it was his interpretation that it meant the question goes on the ballot in 2016, and we’re a little premature here….His interpretation was that the Secretary of State puts it only if the legislature doesn’t put it on in a ten-year period, they put it on at the next election. However, Secretary of State Mollis, our current Secretary of State, has decided to follow the precedent set by Kathleen Connell in 1994, interpreting that sentence to mean that the question goes on this year.”

“However, it’s worth noting that the Rhode Island Senate…has already gone ahead and passed their resolution that would put this on the ballot. There’s no indication that the House is going to do it…”

“The next section of Article XIV, section 2 reads: “Prior to a vote by the qualified electors on the holding of a convention, the general assembly, or the governor if the general assembly fails to act, shall provide for a bi-partisan preparatory commission to assemble information on constitutional questions for the electors“. This is the next phase. The General Assembly has the option of creating a commission. If the General Assembly fails to create a commission, the Governor can create a commission. In the last three cycles where this has happened, we’ve seen it work both ways. In 1984 and 2004 those commissions were constituted and met.”

“In 1994, the General Assembly failed to act, and the Governor failed to act, until literally the day before the election. Bruce Sundlun issued an executive order creating the commission. Obviously, the commission never met or made any recommendations, or assembled any information.”

“The 1984 commission held five public hearings around the state. Interestingly, they endorsed a convention…They went through a number of possible changes to the Constitution, but they didn’t endorse any of those changes. In 2004 the commission held six public hearings and claimed to have heard from 62 members of the public. They did not take a position on whether there should be a convention, but like the 1984 commission, they identified a number of issues, including some that were repeated from 20 years prior, that they believed would be raised, if a convention took place. They also did something else that was interesting and I think helpful. The tried to come at the question of how much a convention would cost…They came to an estimate of approximately 2 million dollars.”

“Many of the issues raised in the 1984 commission report didn’t subsequently come out of the 1986 convention, so maybe we shouldn’t put too much weight into these preparatory commission reports.”

“The question [of whether to have a convention] has come before the voters three times since the 1974 changes to the constitution. In 1984 it passed, it got 53.8% of the votes. In 1994 it was defeated, and only received 40.5% of the votes. And in 2004, the most recent time it was on the ballot, it received 48% of the votes.”

“What are its chances this time?…The only thing we have to go on is a January 2013 poll by Public Policy Polling, where they did, I believe, a sample of roughly 500 Rhode Islanders, and it came up with 40% of Rhode Islanders supporting, 25% opposing, and 35% undecided.”

“If we move on in Article XIV, section 2 it says: “If a majority of the electors voting at such election on said question shall vote to hold a convention, the general assembly at its next session shall provide by law for the election of delegates to such convention. The number of delegates shall be equal to the number of members of the house of representatives and shall be apportioned in the same manner as the members of the house of representatives“. Obviously, our only experience with this section is in 1985. There’s one big, big difference that many of you know from 1985 to 2014, which is that we’ve downsized the legislature; we’ve gone from 100 House districts to 75 House districts, and that will obviously have some impact on what a convention would look like.”

“On June 27, 1985, an authorizing statute went into effect without the Governor’s signature to form the convention itself, and we can get quite a bit of information, particularly about the election of delegates, from what that statute said. Interestingly, it said that it would be a non-partisan election of delegates. The preparatory commission concluded in 2004 that it doesn’t have to be a non-partisan election of delegates. It could be done on a partisan basis….It’s worth noting that the the 10 conventions prior to 1974 were elected on a partisan basis, so the 1985 election was an anomaly in our constitutional history.”

“The statute went on to talk about some of the parameters for that election. It said that all applicable election laws, including voter registration and campaign finance laws, applied to the election of delegates….Under current Rhode Island election law, there are no restrictions on spending by a candidate for office, but there are restrictions on how much they can raise, $1000 per yer per contributor as a maximum….If a delegate cannot serve, the next-highest vote-getter will serve in their place, and candidates need only 50 qualified signatures to get on the ballot.”

“So what did we see happen in 1985? The election occurred in November of 1985, it was an off-year election held concurrent with some municipal elections in the state, but in most communities, this was the only election that occurred. 558 people ran, that averages to five-and-half people per district. 96,536 votes were cast, so you had an average of a little under 1,000 voters per district. How does this compare? Well, I went and looked at the 1986 general election, and the ballots cast for the members of the House. There were 273,502 votes cast just a year later, in a general election….roughly 3 times the number of voters in a regular election”…

Details on what came out of the 1986 convention, and subsequent attempts to amend the RI Constitution to follow…

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