The Michigan constitution expressly provides that proposed amendments shall be submitted on " a ballot or ballots separate from the ballot containing the names of nominees for public office." A similar provision is made by statute in several other states.114 The Michigan constitution also requires that the text of proposed amendments be printed in full on the ballot. Alabama requires that "the substance or subject matter of each proposed amendment shall be so printed that the nature thereof shall be clearly indicated." In practically all of the other states the constitutional provisions are of such a character as to make it necessary that the full text or a clear indication of the character of the proposal appear upon the ballot.1

115

These elections were held in September, and general state elections in the succeeding November. In the special election of 1897 the vote was more than half as large as that at the general election; in 1903 only a little more than twelve per cent of that at the general election; and in 1909 less than twenty per cent of that at the general election. Governor Fort of New Jersey in his message of 1908 recommended the adoption of an amendment providing that a vote might be had at general elections.

114 Idaho Laws, 1905, p. 315. Maine Laws, 1905, ch. 135. Missouri Laws, 1909, p. 492. New York Consolidated Laws, 1909, ii, 978. South Dakota Laws, 1899, p. 88. Wyoming Laws, 1909, p. 27. Writing with reference to the operation of the Idaho law Hon. Burton L. French of Idaho says: "You will notice that at each of the three first elections [1900, 1902, 1904] few persons comparatively speaking voted at all on the amendments. A better showing is made at each of the last two elections [1906, 1908]. The reason is because in the last two elections constitutional amendments were submitted on separate slips [or ballots] which were handed to each voter at the time the ticket was handed to him, and as a result he was compelled at least to notice them. Under the former system, the constitutional amendment was submitted by being printed at the bottom of the ticket. It was easily overlooked."

115 As to what is a sufficient indication of the character of a proposed amendment see Murphy Chair Company v. Attorney-General, 148 Mich., 563; State v. Winnett, 78 Neb., 379, 394; Russell v. Croy,

Popular Vote Required for the Adoption of Amendments Most of the states provide that a proposed amendment in order to be adopted shall receive simply a majority of the votes cast upon the question of its adoption or rejection,116 and the Kentucky constitution makes its meaning perfectly clear in this respect by providing that “if it shall appear that a majority of the votes cast for and against an amendment . . . was for the amendment then the same shall become a part of the constitution."

In three states 117 proposed amendments in order to be adopted must be ratified by "a majority of the electors" of the state, and in each of them this language has been the subject of judicial construction. In the case of State v. Swift 11 there was involved the validity of a proposed amendment which had been submitted in 1880 and had received an affirmative vote of 169,483 and a negative vote of 152,251; the total vote cast at the election was 380,471, and the total number of persons eligible to vote in 1877 was

164 Mo., 69, 95-97; Worman v. Hagan, 78 Md., 166; Lovett v. Ferguson, 10 S. D., 45, 56; McBee v. Brady, 100 Pac., 97, 104 (Idaho, 1909); People v. Sours, 31 Colo., 369, 388; Lozier v. Alexander Drug Co., 99 Pac., 808 (Okla., 1909). The Oklahoma decision just referred to is very confused, but seems to imply that if the ballot title of a measure submitted to the people did not indicate clearly the character of the measure, the proposal would be invalid, although the full text of the measure had been distributed to every voter and even though it might be shown that the voters were not misled by such title. See also Armstrong v. Berkey, 99 Pac., 921.

116 See Bott v. Secretary of State, 62 N. J. Law, 107; 63 N. J. Law, 300; and Itasca Independent School District v. McElroy, 123 S. W., 117; 124 S. W., 1011 (Texas). See also State v. Barnes, 3 N. D., 319. 117 Idaho, Indiana, Wyoming. The Oregon constitution had until 1906 a provison similar to that in these states, which was construed by the administrative officers to require a majority of all persons voting at the election.

118 69 Ind., 505 (1880).

451,028. The court held that the proposed amendment was not adopted, because it had not received a majority of the votes cast at the election, and the judge delivering the opinion expressed his own view that in order to carry an amendment a majority of the electors, whether voting or not, was required. State v. Swift was affirmed in a later case, in which it was said that in the absence of a provision for registration the number voting would be presumed to be the number of qualified electors.119 The language of the Wyoming constitution did not come before the courts until 1909, but before this date had always been construed by the administrative officers of that state to require a majority of all votes cast at the election. In the case of State ex rel. Blair v. Brooks 120 there was involved the validity of a proposed amendment which had been submitted in 1908; at the election 37,561 votes were cast, and the amendment received an affirmative vote of 12,160; the negative vote was 1363. The court said that the term "electors" meant all persons entitled to vote and included "not only those who vote, but those who are qualified yet fail to exercise the right of franchise." The proposed amendment was held not to have been adopted, inasmuch as it had not received even a majority of all votes cast at the election, and the court did not pass upon the question whether a proposal in order to be approved should have to receive the votes of a majority of the qualified electors. In Idaho the constitutional provision regarding the vote required to carry an amendment was at first construed by the election officials in the same way that the Indiana and Wyoming provisions have been construed by the courts of those states; the matter came before the supreme

110 In re Denny, 156 Ind., 104 (1901).

court of Idaho in 1896, however, and the court took the opposite ground that a majority of the electors" meant a majority of the electors voting upon the measure,” and said that any other construction of the language would make amendment practically impossible.121 Before 1898 the Minnesota constitution required for the ratification of a proposed amendment “a majority of the voters present and voting" and the Minnesota supreme court held this to mean present and voting upon the proposed amendment," and so avoided the necessity of an amendment's obtaining a majority of all votes cast at the election.122 Minnesota amendment of 1898, however, changed this rule, and specifically requires "a majority of all the electors" voting at a general election, for the adoption of a proposed amendment. 123

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In the states 124 which, like Minnesota, require that a proposed amendment receive a majority of all votes cast in the election at which it is submitted, there is of course no room for doubt, and the courts when they have had occasion to pass upon proposals not receiving the requisite vote,

121 Green v. State Board of Canvassers, 5 Ida., 130 (1896).

122 Dayton v. City of St. Paul, 22 Minn., 400 (1876). Similar language in the Mississippi constitution of 1890 has received a contrary interpretation.

123 For the interpretation of language similar to that used in the present Minnesota constitution see State v. Stearns, 72 Minn., 200.

124 Alabama, Arkansas, Illinois, Minnesota, Mississippi, Nebraska, Ohio, Oklahoma, Tennessee. Tennessee requires a majority of all persons voting for representatives. North Carolina, which requires “a majority of the votes cast," should also probably be put into this class. In Arkansas, Illinois, Minnesota, Nebraska, North Carolina, and Ohio amendments must be submitted at a general election so that the majority required is a majority of the votes cast at a general election; the same is also true of Wyoming. Alabama, Mississippi and Oklahoma may amend their constitutions more easily at special than at general elections, but not so Indiana, Wyoming, and Tennessee.

have uniformly held them not to have been adopted. 225 Το the states in which amendment is made difficult by the popular majority required should be added Rhode Island, which requires the approval of three-fifths of all those voting upon an amendment, and New Hampshire, which requires that two-thirds of those voting on a proposal should favor it.

In the group of states 126 which require the approval of a majority of all persons voting at the election, constitutional amendment is extremely difficult. Persons voting at an election are usually more interested in the individual candidates than in the measures proposed, and for this reason many persons who vote for candidates will not vote at all upon measures. The number of votes cast upon proposed amendments in practically all cases falls very much short of the total vote cast at the same election. But, under the rule in these states abstention from voting upon a measure counts really as a vote against it, and no proposal stands much chance of adoption unless it has aroused a very great popular interest.

For these reasons the plan of requiring a majority of all votes cast at a general election has made constitutional amendment practically impossible. Speaking of Nebraska's experience, Judge Lobingier says: "In Nebraska in 1896 the electors were invited to vote on no less than twelve amendments to the constitution. The total vote for the office of governor in that year was 217,768, while on the very important amendment relating to the increase

125 State v. Babcock, 17 Neb., 188. Tecumseh National Bank v. Saunders, 51 Neb., 801. State v. Foraker, 46 Ohio St., 677. State v. Powell, 77 Miss., 543. Rice v. Palmer, 78 Ark., 432. Railway Co. v. Kavanaugh, 78 Ark., 468. Knight v. Shelton, 134 Fed., 423.

126 Alabama, Arkansas, Illinois, Indiana, Minnesota, Mississippi, Nebraska, Ohio, Oklahoma, Tennessee, Wyoming.