A pair of Kansas lawmakers are challenging a provision in the Kansas Constitution that has kept the Legislature from asking Congress to call a convention of states.
Republican state Sen. Mike Thompson of Shawnee and state Rep. Michael Murphy of Sylvia filed a federal lawsuit challenging a section of the state constitution that requires a two-thirds vote to call a convention of states to propose amendments to the U.S. Constitution.
The Legislature has tried unsuccessfully at least fives times since 2016 to pass a resolution calling for a convention of states under Article V of the U.S. Constitution, repeatedly coming up short of the two-thirds majority required by the constitution.
Earlier this year, a resolution calling for a constitutional convention to limit the power of the federal government and impose term limits on Congress failed 22-16 in the Senate, five votes short of meeting the two-thirds threshold.
Another similar proposal in the House came up short on a 74-48 vote, 10 votes short of meeting the two-thirds requirement set under the state constitution.
Both votes are called into question in the lawsuit, which names House Speaker Dan Hawkins and Senate President Ty Masterson as defendants.
The lawsuit says the supermajority requirement in the state constitution violates the federal Constitution.
It says that Article V of the U.S. Constitution sets forth “exclusive procedures” for Congress and state legislatures to amend the federal Constitution.
“When state legislatures act pursuant to their authority under Article V, they exercise a federal function from federal law,” the lawsuit says.
“States cannot, whether through their constitutions or state law, impose limitations or additional procedural requirements on state legislatures acting pursuant to this federal authority,” the lawsuit says.
The lawmakers are seeking a declaratory judgment that Article 2 Section 13 of the
Kansas Constitution is unconstitutional and cannot be a basis for denying passage of the two resolutions from earlier this year calling for a convention of states.
Thompson said in an interview that a two-thirds vote should not be required to call for an Article V convention to discuss amendments to the constitution.
“It shouldn’t be that hard to go to a convention to discuss it,” Thompson said of the two-thirds requirement.
“The high hurdle should not be the discussion of the issue of changing the constitution,” he said. “The high hurdle should be the ratification process.”
Two-thirds of the states need to agree to force a convention of states. Any constitutional amendment adopted at the convention would later need ratification from three-fourths, or 38, of the states.
Convention of States Action said that 19 states so far have passed resolutions calling for an Article V convention, including Missouri, Arkansas, Nebraska and Oklahoma.
No such convention has ever been assembled, despite an estimated 750 applications made by the states over the years.
“While I support the CoS, I also swore an oath to uphold the Kansas constitution,” Hawkins said in a statement Friday.
“There’s an interesting legal question here and that’s something the courts will have to sort out,” he said.
There has been some persisting questions over whether Kansas could require a two-thirds majority as spelled out in the state constitution, and state lawmakers have anticipated for some time that litigation would be filed challenging the two-thirds threshold.
In 1974, Kansans voted to amend the constitution to require two-thirds of the Legislature to ratify any amendment to the U.S. Constitution or to ask for a constitutional convention.
But a 2019 opinion issued by Attorney General Derek Schmidt notes that Article V of the U.S. Constitution does not explicitly authorize or forbid a state from adopting specific requirements for ratifying a constitutional amendment.
Since no federal constitutional convention has been held since 1787, there are no cases that directly address whether states can impose voting requirements on a legislature’s decision to apply for Congress to call a convention of states, the attorney general wrote.
The attorney general said that only one court has reviewed a state constitution’s supermajority requirement for ratification of a federal constitutional amendment.
The U.S. Supreme Court found in 1922 that because the state’s ratification power comes from the federal Constitution, it “transcends any limitations sought to be imposed by the people of a state including limitations in a state’s constitution.”
But that opinion addressed but did not rule on the constitutionality of the supermajority requirement imposed by the Illinois Constitution, noting only that each chamber of the legislature could decide whether to adopt the three-fifths requirement imposed by that state’s constitution.
Thompson and Murphy are represented by the Missouri law firm of Garret Graves.
The firm was founded by Todd Graves, the brother of Missouri Congressman Sam Graves and a former U.S. attorney for the Western District of Missouri.
He served as chairman of the Missouri Republican Party in 2016.
Graves was twice elected Platte County prosecuting attorney, in 1994 and 1998.
Graves represented a tea party group that sued the IRS for its scrutiny of conservative groups seeking tax-exempt status.
He also represented the Wisconsin Club for Growth when it sued to block a state agency’s investigation of allegations that the club illegally coordinated its activities with Gov. Scott Walker during an effort to recall the governor.
