‘Whole lot of risk’: MO will vote on convention that could write new state constitution

Missouri voters are practiced at voting to change the state constitution, but this November they could take the first step toward blowing it all up.

On Nov. 8, voters will be asked whether they want to call a state constitutional convention. The ballot question has attracted far less attention than other big-ticket items, such as whether to approve recreational marijuana.

But it is potentially the most consequential vote residents will take this election and could trigger the first state constitutional convention in the United States in three decades.

For a century, the Missouri Constitution has required a vote every 20 years on holding a constitutional convention – a gathering with few rules that could lead to a wholesale rewrite of the constitution. Whatever the convention proposes would go to a statewide vote for ratification.

At a moment when the U.S. Supreme Court appears determined to empower states – most notably on abortion when it overturned Roe v. Wade in June – state constitutions are poised to take on greater importance, increasingly becoming the place where rights and liberties are won or lost. Missouri currently bans abortion in state law, not its constitution.

The convention could make big changes or small changes. It could limit itself to a simple reorganization of the existing constitution, or eliminate whole sections that currently protect medical marijuana, ethics reforms or Medicaid expansion, which currently covers nearly 200,000 people.

Missouri currently bans abortion in state law, but an even stricter abortion ban – or a restoration of abortion rights – could be added to the constitution.

The convention would operate independently, with very little input from Republican Gov. Mike Parson or the Missouri General Assembly. It would likely take over the Capitol in Jefferson City, meeting in the House or Senate chambers. Nothing limits how long the convention could last.

A convention would offer Missouri the chance to fundamentally alter the core compact governing the state, perhaps allowing liberals and conservatives, Democrats and Republicans, to strike a new, grand bargain in a politically polarized era.

Some fear it would simply open the door to chaos.

“The constitutional convention could be here are some proposed amendments for the ballot. It could be, ‘we want to completely gut and redo Missouri’s constitution.’ I am afraid it would be very messy,” said Missouri Secretary of State Jay Ashcroft, a Republican widely seen as a potential contender for governor in 2024.

“We’ve had interesting concerns about how the special session would go,” Ashcroft said of the special legislative session on taxes that begins Wednesday. “Can you imagine how a constitutional convention would go?”

No campaign for convention

No organized campaigns, either in favor of a convention or against one, appear to exist.

Seth Bundy, a spokesman for Missouri Senate Democrats, indicated the question hadn’t received much attention. Kelli Jones, a spokeswoman for Parson, said only that the governor “supports the right to vote on any topic” when asked if he supports calling a convention.

Several people familiar with the constitutional convention question told The Star the closest thing resembling a campaign came when the Show Me Institute held events and released essays about four years ago exploring the idea of a convention. Rex Sinquefield, the St. Louis political mega-donor, co-founded the institute and would have had the resources necessary to mount a significant campaign.

The absence of campaigning suggests voters will reject a convention. The last time Missouri voted on one, in 2002, less than 35% of voters cast ballots in favor. Still, the current political environment is more unstable, making it difficult to entirely write off the possibility.

“I imagine, just logistically, it would be very difficult in such polarized times to agree to a new constitution,” said state Sen. Lauren Arthur, a Kansas City Democrat.

Missouri last voted to call a convention in the early 1940s. It produced the constitution the state still uses today, though it has been amended numerous times. The successful vote to call the convention, held during World War II, came after a sustained campaign in favor of a new constitution and amid a desire for political reform.

“The early 40’s constitutional convention had to do a lot with a reaction to what was regarded as the political corruptness of bosses such as Pendergast,” Gary Kremer, director of the State Historical Society of Missouri, said of the Kansas City Democratic party boss who maintained a grip over local politics for much of the 1920s and 30s.

No similar sweeping movement for a convention exists today, but calls for one have been building in recent years.

Those who support a convention – or are at least interested in the idea – say the steady accumulation of constitutional amendments have bogged down the document and made it nearly unreadable in places. Amendments are often lengthy (the medical marijuana provisions alone span 7,600 words).

At a basic level, they say, the constitution has increasingly become a place for policies – like marijuana and Medicaid expansion – that should be general law. Democrats and others in recent years have advanced amendments through initiative petitions as a way to bypass the Republican-controlled legislature, to the mounting frustration of conservatives. Some Republicans in response have called for restrictions that would make it more difficult to amend the constitution.

“All of the things that we put in the constitution that look more like statutes than constitutional provisions, the convention would have to address how to deal with those,” said Jim Layton, a former Missouri solicitor general under Democratic Attorneys General Jay Nixon and Chris Koster.

Layton predicted a convention would attempt to get those kinds of provisions out of the constitution. The convention would also get into the “major political issues of the day,” he said.

“They would debate abortion. They would debate school funding and the authority of school boards,” Layton said. “Pretty much everything that we see in Missouri politics today would be a major question at the convention.”

Dave Roland, director of litigation at the limited-government Missouri Freedom Center, said the convention in the 1940s helped streamline the constitution, which at that time had been in place since 1875. That constitution was 70 years when it was overhauled; the current one is now 77 years old.

With the U.S. Supreme Court’s decision striking down the federal right to an abortion, Roland predicted the court will take a narrower view of the rights protected by the U.S. Constitution. The result will be states will have more power, increasing the need to focus on state constitutions.

“It becomes imperative for people who believe certain individual liberties need to be protected against the government … to spell out for their courts how those liberties have to be protected,” Roland said.

State Rep. Peter Merideth, a St. Louis Democrat, predicted Republicans would use a convention to try to undo Medicaid expansion and rollback other constitutional provisions supported by Democrats. Even as he acknowledged a convention would come with opportunity, it presents a “whole lot of risk.”

“There is a side of me, of course, that dreams of rewriting our Constitution. I think there are a lot of things we could improve in our state constitution,” Meredith said. “However, looking at political realities and how the appointed delegates would go in, it also really opens the door to a lot of problems.”

Few rules for convention

If voters approve a convention, it will be composed of delegates from across the state. The delegates couldn’t be current legislators and, with a few small exceptions, couldn’t be government officials.

Two delegates would be elected from each of the 34 state Senate districts. Each political party would nominate a candidate and the two who get the most votes would be seated. In practice, most districts would likely elect one Republican and one Democratic delegate, but in theory a third-party candidate could win if they come in 2nd.

An additional 15 at-large delegates, nominated by petition, would be chosen in a statewide election. In the 1940s, Republicans and Democrats agreed on a compromise slate of at-large delegates. Today, the fight would probably be highly-contested because it would most likely determine which party controls the convention.

Parson would proclaim the start of the convention, which would meet in Jefferson City. The constitution requires that “the facilities of the legislative chambers” be made available to the delegates, who would be paid $10 a day.

A quorum of a majority of the delegates would be required to conduct business and any proposed amendments or changes to the constitution would require approval by a majority of delegates. But there are few rules beyond that.

The delegates can operate as they wish and choose whatever officers they want. One of the first major hurdles of any convention would potentially be just setting the rules and picking a chair or some other officer to preside over the proceedings.

Like the legislature, the convention could form committees but isn’t required to. When the 1943 convention began, it formed 26 committees. Proposals were developed in committee then advanced to the full convention for votes, according to a 2018 essay about the convention written by Justin Dyer for the Show Me Institute.

Dyer, formerly the director of the Kinder Institute on Constitutional Democracy at the University of Missouri, said state constitutional conventions have fallen out of favor.

“It’s just something that we don’t do,” said Dyer, who now leads the Civitas Institute at the University of Texas-Austin.

The last state constitutional convention took place in Louisiana in 1992, John Dinan, a professor at Wake Forest University and one of the foremost experts on state constitutions, wrote in a July article in the Journal of Policy History.

Voters fear opening a “Pandora’s box,” he wrote.

The Star’s Kacen Bayless contributed reporting