Constitutional amendments used in the California legislature

What is a “constitutional amendment”? Although California’s Constitution provides for the amendment of this document, our state Constitution does not define this term. A traditional definition of a constitutional amendment is a modification to an existing constitution.

Types of Constitutional Amendments
California’s Legislative Counsel defines a constitutional amendment as “a resolution proposing a change to the California Constitution. It may be presented by the Legislature or by initiative, and is adopted upon voter approval at a statewide election.”

In California, there is a legal distinction between “amending” the constitution and “revising” it. However, there is not a definition in the constitution to distinguish between the two types of modifications to the state’s constitution, but the courts have defined the difference. Article XVIII of the California Constitution sets forth amending and revising this document.

In Section 1, the Legislature is granted the ability to propose either an amendment or a revision to the constitution. Both a proposed amendments and revision requires a vote of the People. If a revision is requested by the Legislature, and the voters approved, then a constitutional convention must be convened. In Section 3, however, the people are only allowed to amend the constitution.

For constitutional amendments in California, there are two methods: those proposed by the Legislature and those proposed by the People.

CAs by the Legislature
For constitutional amendments proposed by the Legislature, they are mentioned just once in Article IV, Section 8.5, which includes a provision for a “constitutional amendment proposed by the Legislature.” Again, the term is not defined anywhere in the state’s constitution.

Thereafter, in Article 18, Section 1, “The Legislature by rollcall vote entered in the journal, two-thirds of the membership of each house concurring, may propose an amendment or revision of the Constitution and in the same manner may amend or withdraw its proposal. Each amendment shall be so prepared and submitted that it can be voted on separately.”

As a result, the Legislature can propose amendments to the California Constitution, so long as both the Assembly and Senate vote by a 2/3 majority to place the proposal on the statewide ballot (note that the Governor does not have a formal role in the adoption of proposed amendments), but the constitutional amendments are subject to a majority vote approval of the People for adoption.

CAs by the People
For constitutional amendments proposed by the People, the process is set forth in Article II, Section 8, which provides:

(a) The initiative is the power of the electors to propose statutes and amendments to the Constitution and to adopt or reject them.

(b) An initiative measure may be proposed by presenting to the Secretary of State a petition that sets forth the text of the proposed statute or amendment to the Constitution and is certified to have been signed by electors equal in number to 5 percent in the case of a statute, and 8 percent in the case of an amendment to the Constitution, of the votes for all candidates for Governor at the last gubernatorial election.

As a result, the state’s electorate can propose and adopt amendments to the California Constitution without approval by the Legislature or Governor. Just like with amendments proposed by the Legislature, those proposed by the People are subject to a majority vote approval of the electorate for adoption.

Component Parts of a Constitutional Amendment
In the California Legislature, the Members of the Assembly and Senate have the ability to place a constitutional amendment before the statewide electorate for consideration. The Legislative Counsel defines a constitutional amendment as “a resolution proposing a change to the California Constitution. It may be presented by the Legislature or by initiative, and is adopted upon voter approval at a statewide election.” In order for the Legislature to place a constitutional amendment on the ballot, it requires a 2/3 vote of each house, but not action by the Governor.

What are the component parts of a constitutional amendment? In terms of its anatomy, a constitutional amendment contains the following provisions:

Legislative Session. At the top of each bill, the following language appears: “California Legislature – 2019-2020 Regular Session.” The only two items that change would be the 2-year Legislative Session, and if there is an Extraordinary Session (also called a special session), rather than a Regular Session.

Constitutional Amendment Number, which follows the words “Assembly Constitutional Amendment” or “Senate Constitutional Amendment.” The Assembly Chief Clerk or the Secretary of the Senate assigns the constitutional amendments their numbers for each constitutional amendment introduced in its respective house of origin, usually in the order in which it was received at the Assembly or Senate Desk. This number remains the same throughout the legislative process, even when the measure is considered in the second house.

Author(s), as well as principal coauthors and coauthors.  In the U.S. Congress and many state legislatures, the author of the constitutional amendment is known and referred to as the “sponsor.” In the California Legislature, the author is the legislator who authors the constitutional amendment. The first line always lists the main author(s) who introduced the constitutional amendment. Below the first line lists any principal coauthor and the next line lists any coauthor. One list is used for the house of origin coauthors and another line below that is used for coauthors from the other house.

Date Introduced, as well as Date Amended, with the house making the amendment listed (i.e., the Senate or Assembly).

Constitutional Amendment Title, which is a short phrase, such as the following: “A resolution to propose to the people of the State of California an amendment to the Constitution of the State, by amending Section 2 of Article XXI thereof, relating to redistricting.”

Legislative Counsel’s Digest, which begins with the constitutional amendment number, the phrase “as introduced” or “as amended,” the constitutional amendment’s lead author, and a short phrase regarding the subject matter of the constitutional amendment. Thereafter, the Digest contains a statement of existing constitutional provisions, followed by an explanation of what this constitutional amendment proposes to do to change existing law.

Digest Key, which contains the four keys: vote; appropriation; fiscal committee; and, local program.

Constitutional Amendment Text, which is the actual language of the constitutional amendment to amend, add or repeal sections of the California Constitution. Similar to bills, constitutional amendments are divided into sections. Before the actual constitutional amendment text begins, the following phrase is used: “Resolved by the Senate, the Assembly concurring, That the Legislature of the State of California at its 2019–20 Regular Session commencing on the third day of December 2018, two-thirds of the membership of each house concurring, hereby proposes to the people of the State of California that the Constitution of the State be amended as follows:”

These are the provisions that make up the anatomy of a constitutional amendment in the California Legislature.

Key Drafting Rules for a Constitutional Amendment
An initial question to answer is whether the constitutional amendment will amend, add and/or repeal provisions of the California Constitution. If the proposal will amend or repeal existing provisions, then the bill drafter readily knows where to start. On the other hand, if the proposal is to add provisions, is there an existing Article of the state Constitution in which you can add the new provisions, or does a new Article need to be proposed to be added?

Like other legislative measures, a title is drafted and a Legislative Counsel’s Digest must be prepared that explains existing constitutional provisions and what this proposed constitutional amendment proposes to do. The Digest usually starts with the first paragraph that begins, “The California Constitution ….” And the second paragraph usually begins with “This measure would ….”

A constitutional amendment proposed by the Legislature also contains a Digest Key, just like a bill does. The four keys are: Vote, Appropriation, Fiscal Committee, and Local Program. The vote key is obvious because each constitutional amendment requires a 2/3 vote. The remaining keys are whether the measure appropriates any funding, whether the measure will be referred to the fiscal committee, and whether the measure creates a state-mandated local program.

Thereafter, the “resolve” clause is provided, followed by the actual text of the measure. The first clause, based upon a measure introduced during the 2020 Legislative Session, provides as follows: “Resolved by the Senate, the Assembly concurring, That the Legislature of the State of California at its 2019–20 Regular Session commencing on the third day of December 2018, two-thirds of the membership of each house concurring, hereby proposes to the people of the State of California that the Constitution of the State be amended as follows:”

This language is taken from a Senate Constitutional Amendment, which is why the resolve clause begins by listing the Senate. As you would expect, for an Assembly Constitutional Amendment, the clause would begin, “resolved by the Assembly, the Senate concurring….”

For the most part, drafting a constitutional amendment in the California Legislature requires the bill drafter to utilize all of the usual guidelines of bill drafting as well as the required drafting style for California measures.