In 2006, Florida voters approved Amendment 3, a significant change to the state constitution that raised the threshold for passing future constitutional amendments from a simple majority to a 60% supermajority. This change was designed to make it more challenging to enact constitutional amendments, ensuring that only proposals with broad public support would succeed.
Ironically, Amendment 3 itself passed with just 57.78% of the vote, falling short of the very 60% standard it established. This paradox highlights a fundamental question: should amendments that impose stricter passage requirements be required to meet those same standards during their own approval process?
Why did Florida feel the need to change?
Most states only require a simple majority (over 50%) to pass constitutional amendments, but Florida’s constitution was considered “easier to amend” due to several factors beyond just the voting threshold.
1. Multiple Paths to Amend the Constitution
Florida allows several methods for proposing amendments, giving citizens multiple routes to place issues on the ballot. Unlike some states that rely solely on the legislature to propose amendments, Florida permits:
- Citizen Initiatives: Florida has a robust system for citizens to directly propose amendments by gathering enough signatures.
- Legislative Proposals: The Florida Legislature can propose amendments directly, which then go to a public vote.
- Constitution Revision Commission (CRC): A unique Florida body that convenes every 20 years to review the constitution and propose amendments.
- Taxation and Budget Reform Commission (TBRC): This commission can propose amendments specifically related to fiscal matters, meeting every 20 years.
These multiple avenues make it easier for amendments to reach the ballot, giving citizens and other bodies various ways to bring about constitutional change.
2. Lack of a Higher Threshold for Citizen Initiatives
Some states that allow citizen-led constitutional amendments require a higher threshold for approval if an amendment is initiated through citizen petitions rather than the legislature. Prior to 2006, Florida treated all amendments equally, requiring only a simple majority for approval, regardless of the method of proposal. This made it easier for citizen-initiated amendments to pass compared to states where such amendments face more stringent requirements.
3. Frequent Use of Ballot Initiatives
Florida has a relatively active use of the ballot initiative process compared to many other states. This frequent use stems from both the accessibility of the citizen initiative process and the state’s political culture, which has encouraged groups to use constitutional amendments as a way to address issues not easily passed through the legislature. Over time, this led to a greater number of amendments being added to the constitution, prompting concerns that the state constitution was becoming overly complex or cluttered with policy matters that might be better suited for ordinary legislation.
4. No Requirement for Geographic Diversity in Support
In some states, constitutional amendments need not only a simple majority but also support from a certain number of counties or legislative districts, ensuring that amendments have widespread support across the state. Prior to 2006, Florida had no such requirement; an amendment could pass solely based on concentrated support in a few populous areas. This made the process easier in Florida, as proposals did not need to demonstrate broad geographic support.
5. Perception of Low Barrier for Amendments
Over time, Florida’s relatively accessible process for placing amendments on the ballot and the low passage threshold contributed to a perception that constitutional changes could be too easily achieved. This perception was partly based on the volume of amendments added to the Florida constitution compared to other states. For example, in the years leading up to the 2006 amendment, Florida voters had passed amendments on issues as varied as high-speed rail, smoking bans, minimum wage requirements, and treatment of pregnant pigs. This prompted concerns that the constitution was being used more like a statute book than a foundational document, leading lawmakers and advocates to push for a higher threshold to ensure that only widely supported changes were enacted.
So, we understand why Florida put Amendment 3 on their ballot in 2006.
The Irony of Passing with 57.78%
When Amendment 3 was put on the ballot in 2006, it received 57.78% of the vote, a clear majority but short of the 60% threshold that it would later impose. Voters at the time were not bound by the new rule; only a simple majority was needed for the amendment to pass. However, if the amendment itself had been subject to the 60% requirement, it would have failed to meet its own standard.
This paradox raises questions about the logic and fairness of implementing such a rule. Should an amendment that changes the rules for future amendments be required to follow those same rules? Or does the simple majority threshold, at least for this particular case, make sense given that the rule had not yet been enacted?
The Case for and Against Retroactive Standards
From a legal standpoint, there is little question about the legitimacy of Amendment 3’s passage; at the time, the simple majority rule was in place, and it met that criterion. But from a philosophical and ethical perspective, some argue that amendments imposing new voting thresholds should themselves be subject to the standards they set. Critics of Amendment 3 point out that it effectively circumvented its own logic, passing without reaching the very level of voter support it sought to require for future amendments.
Proponents of Amendment 3, however, would argue that the amendment’s purpose was to address an ongoing problem, not to retroactively apply its standards. According to this view, the issue was not that the amendment needed more support to be valid but that the rules themselves needed to change for the future. Once Amendment 3 passed, Florida entered a new era of constitutional amendment processes, where the 60% requirement would be applied moving forward.
Legal Precedents and Similar Cases
The situation in Florida is not unique. Similar cases have arisen in other states and at the federal level, where rules are created with prospective, not retroactive, application. In constitutional law, it is generally accepted that changes to rules do not apply backward, which would create instability and undermine the certainty of law. However, cases like Amendment 3 raise an important ethical question about whether future laws should also require a high threshold if they impose stricter voting requirements on others.
The Case for requiring amendments to meet their own criteria
Applying proposed standards to the amendments that introduce them ensures fairness and logical coherence. If an amendment seeks to make it more challenging to alter the constitution, it stands to reason that it should first demonstrate its own ability to meet these heightened criteria. This approach would prevent the enactment of rules that could not pass under their own stipulations, thereby upholding the integrity of the constitutional amendment process.
Impact of the 60% Threshold
Since the implementation of the 60% requirement, several proposed amendments in Florida have failed to pass despite receiving majority support. Notable examples include:
- 2010 Amendment 8: Aimed to put limits on average number of students assigned per class to each teacher in public schools, as opposed to on actual class size; received 54% support.
- 2012 Amendment 8: Sought to provide religious institutions with public funds; garnered 55.3% support.
- 2014 Amendment 2: Proposed the legalization of medical marijuana; achieved 57.6% support.
- 2016 Amendment 1: Intended to grant residents the right to own or lease solar equipment; received 51.3% support.
- 2018 Amendment 1: Sought to increase the homestead property tax exemption; garnered 58% support.
- 2020 Amendment 3: Proposed the establishment of a top-two open primary system; achieved 57% support.
These instances highlight the restrictive nature of the 60% threshold, where amendments with clear majority backing fail to be enacted.
2024 Amendments: Recent Examples
The 2024 election cycle provided further examples of this phenomenon:
- Amendment 3: Sought to legalize recreational marijuana for adults 21 and older, receiving about 56% of the vote, falling short of the 60% required for passage.
- Amendment 4: Aimed to protect abortion rights up to viability, garnering approximately 57% support, again not meeting the 60% threshold.
These outcomes demonstrate how the 60% requirement continues to prevent amendments with substantial majority support from being adopted.
2020’s Amendment 4: Requiring Double Approval
An example that illustrates the potential complications with self-imposing requirements is Florida’s 2020 Amendment 4, which attempted to make it even harder for future amendments to pass. It proposed that constitutional amendments, once approved by 60% of voters, would need to be approved in two successive elections before taking effect. Although this amendment did not pass, it remains a possibility that it or similar proposals could appear again in future ballots.
Amendments like 2020’s Amendment 4 raise a significant question: shouldn’t amendments proposing such drastic changes have to meet their own requirements? Had Amendment 4 passed, it would have imposed an unprecedented barrier, requiring each amendment to clear two election cycles to become law. Yet, the proposal itself would have only needed a single 60% approval. Applying its own rule would have required 2020’s Amendment 4 to pass two elections in a row, ensuring its strength by meeting its own criteria.
A Call for Reflective Standards
The experience with Florida’s Amendment 3, as well as recent amendments like the 2020 and 2024 ballot measures, underscores the importance of applying proposed standards to the amendments that introduce them. By ensuring that such amendments meet their own criteria, the state can maintain a fair and consistent approach to constitutional changes, respecting the will of the majority while safeguarding against overly restrictive or self-contradictory alterations.
Florida’s history with these amendments highlights the ongoing tension between protecting the constitution from frequent changes and honoring the democratic principle of majority rule. In light of proposals like 2020’s Amendment 4, it’s essential to consider whether amendments designed to limit future amendments should be held to their own standards, creating a fairer and more logically consistent process for all Florida voters.
Conclusion: A Lesson in Constitutional Paradoxes
The case of Florida’s Amendment 3 is a fascinating example of the complexities that can arise in constitutional law and the challenges of balancing change with stability. While legally sound, the amendment’s passage at 57.78% creates a paradox that continues to provoke debate over whether new standards should apply retroactively and how we determine the legitimacy of rules that govern future lawmaking processes.
Ultimately, Amendment 3 illustrates how even well-intentioned efforts to safeguard a constitution can reveal underlying contradictions. In Florida’s case, the 60% rule has made it harder to amend the constitution, reflecting the intent of the amendment’s supporters. Yet, the irony of its own narrow passage serves as a reminder of the delicate balance between majority rule and the protections against rapid, sweeping constitutional changes.