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not permit the electors to vote on "each amendment separately," as required by the constitutions of Ohio and Nebraska. To this the Ohio court replied: "The act of the general assembly . . . enables the elector to vote with or against his party, on each or all of the amendments, or to vote separately upon each and every proposed amendment, or not to vote at all if he so desires; "186 and the Nebraska court said: "The voter may vote a straight party ticket if he desires, but he is not compelled to do so. He may vote a straight party ticket in general and make such exceptions as he desires either as to the individual candidates or as to any proposed constitutional amendment.” 187 Nebraska and Ohio plans make it more difficult for a voter to abstain from voting upon a proposed amendment on which his party has taken action (for to do this he must decline altogether to vote a straight party ticket), and also make it difficult for him to vote against his party's action (for to do this he must go to the trouble of splitting his ticket). As remarked by one of the counsel in the Ohio case this system has the result of making "the indifferent voter support a constitutional amendment in favor of which his party has taken action." But it can hardly be said that a voter in casting his ballot has a constitutional right to abstain altogether from voting upon a measure submitted to him; and if the law does permit him to abstain from expressing himself, he can make no objection if such abstention is made more difficult than an expression of opinion for or against the measure; nor would it seem that he could properly object if (as in Alabama in 1898, and in Ohio and Nebraska if a measure had party endorsement) to a negative vote being made somewhat more difficult than an affirmative vote.

136 Ohio ex rel. Sheets v. Laylin, 69 Ohio St., 1, 14 (1903). 187 State ex rel. Thompson v. Winnett, 78 Neb., 379 (1907).

By the system of party endorsements Nebraska was able to amend its constitution once in 1906 and twice in 1908. In Ohio the plan was employed in the elections of 1903 and 1905, but the law was repealed in 1908, so as not to be available for the election of November, 1908. In 1903 five proposed amendments were submitted in Ohio; of the five two (relating to county representation and the liability of stockholders) were endorsed by both the republican and democratic parties, and received the vote of these two parties almost in full; one (conferring the veto power upon the governor) was endorsed by the republicans and opposed by the democrats, and was carried by the republican vote; upon the fourth amendment (that regarding taxation) the republicans, without endorsing, invited "careful consideration," and the democratic endorsement was given; the straight democratic vote for the amendment was not sufficient to give it a majority of all votes cast at the election; a fifth amendment submitted at the same time received the endorsement of neither democrats nor republicans-upon this amendment only about 50,000 votes were cast out of a total vote at the election of nearly nine hundred thousand. Two amendments submitted in 1905 were carried by means of party endorsements. Only by means of the party endorsements was it possible to carry the amendments which were adopted in 1903 and 1905. In 1908, when the party endorsement was no longer employed, three amendments were submitted, and although each of them received an overwhelming majority of the votes cast upon it, all of them were lost, because less than forty per cent of those voting at the election expressed themselves upon the amendments.

The requirement that a proposed amendment receive a majority of all votes cast at a general election may therefore be said to make the amending process practically un

workable, unless some method is employed of counting votes for or against proposed amendments where the voter himself is too indifferent to mark such proposals upon his ballot. Such schemes, however valid they may be technically, are really evasions of constitutional requirements, and practically nullify these requirements. But the strict constitutional plan, having proven unworkable, must permit of alteration by construction so as to allow necessary changes. Our constitutions contain much legislative matter, devised to meet conditions existing when they were framed, and must be changed when conditions have altered. Of the methods of popular ratification most employed (1) by a majority of those voting on the measure, even though it be a minority of those voting on other matters at the same time, (2) by a majority of those voting at the election when the proposal is submitted-the second has proven practically unworkable, without schemes for the counting of votes which practically nullify it; the first, on the other hand, often permits constitutional alterations by a small minority of the electors, and is objectionable for this reason. It is a question whether the second plan, aided by party endorsements or by the Alabama method of voting, is not better than final action by a minority. Under the Alabama plan an elector votes for an amendment unless he is definitely opposed to it; he is presumed to be for it rather than against it if he does nothing. Under the party endorsement plan the elector votes for his party action unless he is definitely opposed to it. Both methods may be said simply to count those who really do not express any opinion of their own upon the proposal, but who do nothing about the matter because it is easier to do nothing. This is true of the Alabama plan. But the plan employed in Nebraska and Ohio means more than this. Under our system of government political parties may be said

to be essential, and endorsement of a measure by a more or less representative party convention or by a party primary may be fairly said to represent the opinions of a large number of party members.188 This is especially true where, as in Nebraska since 1907, a referendum upon proposed amendments is required to be taken in the party primaries. The Nebraska plan does, however, permit a small party minority which is interested in a proposal to commit an indifferent party majority by means of the primary, for the party endorsement is that of a majority voting upon the question, not that of a majority voting at the primary; the result actually is the same as in the states which permit amendment by a majority of those voting on the question, irrespective of whether there is a majority of all persons voting at the election. For example, let us assume that in a Nebraska republican primary one hundred thousand votes were cast; and that on a proposed amendment only ten thousand votes were cast, of which a majority were favorable; an endorsement of such proposal would then go on the republican ticket, and would obtain practically the whole republican vote, and the amendment would be carried, not because a majority of the party voters favored it, for the majority was evidently indifferent, but because of the action of a small minority. So that in effect we have the same result as in a state which does not re

138 But measures may often be submitted which have little or no bearing upon party policies. Often, too, the parties may not care to commit themselves, and under the Ohio plan it was not necessary that they commit themselves although inaction would be equivalent to adverse action, but under the Nebraska law of 1907 some definite party action upon proposed amendments is compulsory. It is always possible, of course, for the dominant party to bring about the repeal of the law by which party endorsement is required, if it does not wish to commit itself in any way upon a pending measure, and this is what was done in Ohio in 1908.

quire a majority of all persons voting at the general election. A similar result, with control by a still smaller minority, might often be expected from the use of the convention plan of party endorsement. But this is simply to say that unless a question is one of great popular interest (and most proposed amendments are not such), a proposal cannot ordinarily be carried, even though practically unopposed, if it must obtain a majority of all votes cast at a general election.

Except with reference to matters of great importance, it may therefore be said that the requirement of such a majority makes constitutional alteration too difficult, when we take into consideration the fact that our state constitutions contain so many provisions which are not fundamental in character and which require frequent change. But the plan used by most of the states permits amendment by a minority 189-in fact amendments are usually adopted by a minority of the people and often by a very small minority. There is a feeling and a very proper one, that constitutional alterations should not be made by so small a body of people -sometimes as few as one-tenth of the voters-and this feeling has led to the proposal that no amendment should be carried unless it received a certain fixed proportion of the votes cast. So in New York: "The possibility that a constitutional amendment might be adopted by a minority of the electors of the state led to a proposed increase in the vote required to make the amendment effectual. . . . In

189 The plan of permitting the adoption of proposed amendments if they receive a majority of the votes cast upon the question of their adoption or rejection, practically results in the adoption of any proposal to which there is no strong opposition, even though there may be little sentiment in favor of it. The Nebraska plan will, it seems, accomplish very nearly the same purpose, but by the use of more cumbersome machinery. For a further discussion of popular votes upon proposed amendments, see pp. 275-278.