State legislature elections on Nov. 7, 2023, in New Jersey and Virginia shifted Democratic majorities in the legislatures. This could affect legislatively referred constitutional amendments that may appear on the ballot in future elections.
In Virginia, Democrats won a majority in the House of Delegates and maintained their majority in the State Senate. Previously, in the House, Republicans held a 48-46 majority with six vacancies in the chamber. After the Nov. 7 election, Democrats hold a 51-48 majority, with one district currently too close to call. In the Virginia Senate, Democrats held a 22-18 majority, and after the election, they now hold a 21-19 majority. With Democratic control of both chambers of the state legislature, they are now able to place constitutional amendments on the ballot by a simple majority vote in both chambers of the legislature in two legislative sessions. As the process for referring constitutional amendments occurs over two legislative sessions in Virginia, Democrats would need to retain control of the legislature in 2025.
In 2022, two constitutional amendments failed to make the Virginia ballot after passing during one legislative session. One amendment would have repealed Question 1 from 2006, which defines marriage as between one man and one woman, and another amendment would have restored the ability to vote to persons convicted of a felony after they have completed their sentence. Both amendments passed both chambers in the 2021 legislative session with a Democratic majority. However, on the Nov. 2, 2021 election, the partisan control of the House changed from a 55-45 Democratic majority to a 52-48 Republican majority. While both measures passed the Senate in 2022, they failed to pass the House, and could not be placed on the ballot.
Since 2010, changes in partisan control of a state legislature also affected constitutional amendments from proceeding to the ballot in Nevada and Wisconsin—two other states that require two-session approval for constitutional amendments but saw party control changes in the next legislative session. In Nevada between 2010 and 2022, out of the seven constitutional amendments that passed one chamber and then saw a party control change in the next legislative session, only one passed the next legislative session and was placed on the ballot while six failed. In Wisconsin, three constitutional amendments also failed the make the ballot due to party control changes.
For 2024, one constitutional amendment could potentially make the ballot. The amendment would change language in the Virginia Constitution regarding property tax exemptions for veterans and surviving spouses to say died in the line of duty rather than killed in action. It passed unanimously in both the House and Senate in 2023 and must pass the House and Senate again in 2024 to make the ballot.
In New Jersey, Democrats maintained control of both chambers of the Legislature. However, rather than having a simple majority in both chambers, they now have a three-fifths (60%) supermajority in both chambers. The Democrats gained a 51-28 majority in the General Assembly and a 25-15 partisan majority in the state Senate.
To place a constitutional amendment on the ballot in New Jersey, a simple majority vote is required in two legislative sessions, or a 60% supermajority vote is required in one legislative session. Because there is a Democratic supermajority in both chambers of the Legislature in the next legislative session, a constitutional amendment may be able to be placed on the ballot in one legislative session rather than two if the amendment receives at least 60% of the vote in both chambers. For a constitutional amendment to pass with a 60% majority in both chambers, that amounts to a minimum of 48 votes in the Assembly and 24 votes in the Senate, assuming no vacancies.
Since losing the Democratic supermajority in the Legislature in the 2021 election, New Jersey has had no statewide constitutional amendments on the ballot. Most recently, New Jersey voters decided on two amendments related to gambling in 2021, and decided on three amendments, including an amendment that legalized the sale and use of recreational marijuana, in 2020.
Three other states—Connecticut, Hawaii, and Pennsylvania—have two different vote requirements in the legislature based on whether the amendment gets a simple majority or a supermajority. All three of these states require a simple majority in both chambers of the legislature in two consecutive sessions to place a constitutional amendment on the ballot. However, for a constitutional amendment to pass in one legislative session, Connecticut requires a 75% majority in both chambers, and Hawaii and Pennsylvania require a 66.67% majority in both chambers. Additionally, Pennsylvania requires that the legislature finds that there is a major emergency to refer an amendment with a one-session vote.
Legislatively referred constitutional amendment, two-session requirements
