33912-alb_76-4 Sheet No. 130 Side A 09/10/2013 07:04:50 ROPOSED ONSTITUTIONAL C (Oct. 30, 2012), available at ROPOSED ROPOSED OMMERCE C , P The measure had the had The measure 1 3 LECTIONS E HAMBER OF 6, 2012 (2012) [hereinafterP .C , 23. at OF . LA IV 2141 , F supra Proponents argued that the that the argued Proponents 2 .D OVEMBER . 6, 2012], LA N OV N NO-AID CLAUSES CLAUSES NO-AID . 6, 2012, James N.G. Cauthen* Cauthen* N.G. James OV N OTED ON V .art. I, § 3; F 3; § I, .art. Florida Religious Freedom Amendment: Pro-Religious Liberty, or Anti- Liberty, Pro-Religious Amendment: Freedom Religious Florida )9/8/2013 10:59 AM ONST DONE .C ( MENDMENTS ON A LA F AUTHEN AUTHEN Support for Amendment 8 Expands Giunta, Eric See M K In the 2012 general election, voters in Florida were asked to to asked were in Florida voters election, In the 2012 general 2 3 * of Criminal College Jay John Science, Political of Department Professor, Associate 1 There shall be no law respecting the establishment of religion or prohibiting or or prohibiting or religion of establishment the respecting law no be shall There practices justify not shall freedom Religious thereof. exercise free the penalizing political or any state of the revenue No safety. or peace morals, public with inconsistent or directly treasury the from public taken ever shall be thereof or subdivision agency of any sectarian in aid or denomination religious or sect, church, of any in aid indirectly institution. REFERENDA, INITIATIVES, AND STATE CONSTITUTIONAL MENDMENTS TO BE MENDMENTS ON ROPOSED C Y support of the Florida Chamber of Commerce, former Governor Jeb Jeb Governor former Chamber of Commerce, the Florida of support religious numerous and Rubio, Marco Senator States Bush, United Bishops, Catholic of Conference the Florida including organizations, Jewish Orthodox of the Union and Convention, Baptist the Florida of America. Congregations Justice, The City University of New York. ofNew York. University The City Justice, http://www.flchamber.com/article/support-for-amendment-8-expands. http://www.flchamber.com/article/support-for-amendment-8-expands. A A 2141 C http://election.dos.state.fl.us/publications/pdf/2012/2012_Constitutional_Amendments_Englis h_9-28-12.pdf. Constitution Florida of the sentence third the deleting included The proposal 3: Section 1, Article in out set P approve eleven amendments to the state’s constitution. One of the the One of constitution. state’s to the amendments approve eleven the the ballot by on been placed 8—had proposals—Amendment the language prohibiting constitutional to delete legislature state any church, or indirectly, directly to support, funds use of state adding and institution or sectarian religious denomination, and support denial of government benefits language prohibiting the or belief. identity of religious on the basis amendment was needed to eliminate discrimination against against discrimination eliminate to needed was amendment long- protect state, the in services social providing groups religious faith-based and state between government partnerships standing state the from a clause remove and organizations, service social bias. anti-Catholic in rooted constitution 33912-alb_76-4 Sheet No. 130 Side A 09/10/2013 07:04:50 09/10/2013 A 130 Side No. Sheet 33912-alb_76-4 33912-alb_76-4 Sheet No. 130 Side B 09/10/2013 07:04:50 7 M K C Y IVISION OF .: D T Tampa Bay Bay Tampa S 9 and , School Voucher Programs Programs Voucher , School (Oct. 10, 2012), EWS These provisions often often These provisions EPARTMENT OF 10 . 117, 129–31 (2000). Needing a sixty-percent Needing a sixty-percent 5 .D EV . 147, 166–68 (2004); Toby J. Heytens, LA .N T EV S .L.R , F A V L. R Amendment 8 failed at the ballot. the at failed 8 Amendment ,86 6 Orlando Sentinel Orlando , (Nov.2012, 12, 10:11 AM), Zelman v. Simmons-Harris YRACUSE UNSHINE OST S P 8, http://www.votenoon8.com (last visited Jun. 14, 2013) (a 2013)visited 14, (a Jun. 8, (last http://www.votenoon8.com After After , 54 , S note 4. O ON N EACH supra supra B OTE 8, Miami Herald Miami V .§ 5(e). XI, art. )9/8/2013 10:59 AM Why Florida Voters Rejected Amendments This Year When TheyUsually O ON ONST N After the vote, some explained its defeat and the defeat defeat the and its defeat explained some vote, After the DONE ALM ( 8 see also .C ; (Nov. 6, 2012), They asserted that the proposed amendment was not not was amendment that the proposed asserted They OTE LA Ellen M. Halstead, M. Ellen Note, 4 V F . AUTHEN AUTHEN School Choice and State Constitutions State and Choice School , P See See See Amendment Constitutional Results: Election Id. Kam, Dara See id. See See The campaign over Amendment 8 in Florida was a recent battle battle recent was a 8 in Florida over Amendment The campaign Opponents of Amendment 8 included the Florida Education Education Florida the included 8 Amendment of Opponents 6 7 8 9 10 4 5 LECTIONS Times Don’t in the war against clauses appearing in a majority of state in a majority of state appearing clauses in the war against and schools religious of support public prohibit that constitutions strike to courts state many by been applied have that institutions the under constitutional be would that otherwise programs down Clause. Establishment First Amendment’s affirmative vote for ratification, for vote affirmative intended to protect religious freedom or ensure continued delivery of of delivery continued ensure or freedom religious protect to intended public the promote to meant was but state the in services social and schools. groups funding of religious Note, http://www.sunshinestatenews.com/story/florida-religious-freedom-amendment-pro-religious- liberty-or-anti-churchstate-separation. of seven other proposed amendments on ideological grounds, while while grounds, on ideological amendments proposed other of seven in voters’ difficulties because of was lacking support asserted others proposals. the of impact or purpose the understanding Association, the Florida Parent-Teachers Association, the American the American Association, Parent-Teachers the Florida Association, and Women Voters, of League Florida, the Union of Civil Liberties newspapers, largest state’s the of many of boards the editorial the including http://www.palmbeachpost.com/news/news/state-regional-govt-politics/why-florida-voters- rejected-amendments-this-year-w/nS4hd. E Church/State Separation? It did not receive over sixty-percent support in any Florida county, any Florida county, in support sixty-percent over receive It did not in counties six of sixty-seven in only support majority and received the state. 2142 Albany LawReview [Vol. 76.4 [Vol. LawReview 2142 Albany 2141 C are referred to as state “Blaine amendments” because of their their of because amendments” “Blaine state to as are referred amendment constitutional Federal proposed the to similarity in 1875, Maine on Blaine G. James Representative by introduced of anti-Catholic advantage intended to take was assert that many the win to chances his to bolster an attempt in country the in feeling Can Exclude Religious Schools website of the campaign against Amendment 8 which sets out newspaper editorials opposing opposing editorials out newspaper 8 which sets Amendment campaign against of the website the proposition). http://election.dos.state.fl.us/elections/resultsarchive/Index.asp?ElectionDate=11/6/2012. 33912-alb_76-4 Sheet No. 130 Side B 09/10/2013 07:04:50 09/10/2013 B 130 Side No. Sheet 33912-alb_76-4 33912-alb_76-4 Sheet No. 131 Side A 09/10/2013 07:04:50 , . EV Jill Jill .L. IRST IRST HILIP . 213, See See , P .L.R MEND , 2 F , 2 ROBS A ASH .P See, e.g. See, IRST Blaming Blaine”: , 64 W , 64 note 601–25; 11, at ,2 F ,2 The Past Should Not ONTEMP 38, 38 (1992); Ward M. 38,Ward 38 (1992); M. . &C supra supra State Blaine State IST : Equal Protection and the the and Protection : Equal 11 AW H Voucher Battleground: Where to to Where Battleground: Voucher Romer , 67 L Some claim that these these that claim Some EGAL 657, 659–60 (1998). 657, 659–60 551,573 (2003); 556–58, K. Steven Steven K. Green, “ Green, K. Steven 111, 117 (2011) (“Legislative repeal repeal (“Legislative (2011) 111, 117 12 . 1, 1, 34–40 (2003);. 34–40 Thomas 1, Berg, 1, C. Y This could be through This could be through DeForrest, Y ’ 13 ’ 296, 323–26 (2002); Mark Edward 15 EV See See OL OL .J.L Zelman M .P NGAGE .P TATE .L.R UB S UB Post- EL , 36 A Church and Statethe in States , 12 E , 12 ND See generally A ,6 D ,6 Blaine’s Wake: School Choice, The First Amendment, Amendment, First The Choice, School Wake: Blaine’s .J.L.&P opponents also have pointed to formal formal to pointed have also opponents .J.L.&P 14 . L. 413, (2003); 414–16 Brandi Richardson, Comment, Rum, Romanism and ARV M ARV HURCH H . 493, 493 (2003); RobertWilliam Gall, C .A Secularism’s Laws: State Blaine Amendments and Religious Religious and Amendments Blaine State Laws: Secularism’s EV . 1041, 1046–49 (2003). , 21 EV , 26 H , 26 URV L. R . 57, 60–62 (2005).. 57, 60–62 .S . 23, 23–24 (2003). EV Religious Liberties: The State of Blaine: A Closer Look at the Blaine the Blaine at Look A Closer Blaine: of State The Liberties: Religious NN EV .U.L.R A )9/8/2013 10:59 AM Luke A. Lantta, Note, The Note, Lantta, A. Luke ORDHAM ATH EPARATION OF .L.R note 10, at 140–53. 10,note at .U.L.R . 1, 4–5 (2003); G. Alan Tarr, Alan . 4–5 (2003); G. 1, DONE , Kyle Duncan, Duncan, Kyle , , Richard G. Bacon, G. Bacon, , Richard ( ,S EV Blaine’s NameVain?: in State Constitutions, School Choice, and Charitable EN An Overview and Evaluation of State Blaine Amendments: Origins, Scope, and and Scope, Origins, Amendments: Blaine State of Evaluation and An Overview , 72 F But see But , 52 C MEND supra The HistoricalFailedthe ContextFederal of Blaine Amendmentof 1876 Meir Katz, Katz, Meir A The Blaine Amendment Reconsidered Amendment Blaine The .L.R , 59 N.Y.U. , 83 D , 83 AUTHEN AUTHEN See See, e.g. See, See, e.g. the prohibit specifically that provisions constitutional all state to refer I In this article, A discussion of the historical background of the failed federal proposal state federal failed of the the and background historical of the discussion A . 107, 109–14 (2004). In addition,some the use “Blaine term amendment” refer to only to M K IRST Beyond legal challenges to Blaine amendments or, as referred to to referred or, as Blaine amendments to Beyond legal challenges 15 12 13 14 11 AMBURGER EV MEND C Y Blaine Amendment in State Constitutions State in Amendment Blaine Shackle the Present: The Revival of a Legacy of Religious Bigotry by Opponents of School School of Opponents by Bigotry Religious of Legacy a of Revival The Present: the Shackle Choice those state no-aid clauses that have some connection to the federal proposal. federal proposal. to the connection have some that no-aid clauses state those Goldenziel, Choice McAfee, 2 F Why A State Exclusion of Religious Schools from School Choice Programs is Unconstitutional is Programs Choice School from Schools Religious of Exclusion Why A State seems to be a viable shorter-term solution for opponents of Blaine Amendments in some in some of Blaine Amendments for beseems opponents a viable shorter-term to solution states.”). provisions should be removed from state constitutions because they they because constitutions state from removed should be provisions Clause and Exercise Free Amendment’s First violate the to seeking institutions and schools religious against discriminate programs. assistance state in participate amendments, as a group, have been criticized and challenged for for andchallenged criticized been have group, a as amendments, and similarity of their because prejudice this perpetuating original proposal. Blaine’s to connection Eradicating Blaine’s Legacy of Hate: Removing the Barrier to State Funding of Religious Religious of to Funding State Barrier the Removing Hate: of Legacy Blaine’s Eradicating Education R Green, Green, H A 2012/2013] nomination. presidential 1876 Republican State Constitutional No-Aid Clauses 2143 2141 C First Amendment Concerns Amendment First DeForrest, DeForrest, and State Constitutional Law Constitutional State and 73, 73–75 (1989); P. Viteritti, Joseph here, state no-aid here, state clauses, no-aid Amendments and Their Modern Application Modern Their and Amendments use of public funds to aid religious schools or institutions as “no-aid” clauses. Many refer to to refer Many “no-aid” clauses. as institutions or schools religious aid to funds of public use questioned have some However, or Blaines.” “Baby amendments” as “Blaine as a group these proposal. the federal to connection their of extent the provisions can be found in several books and a number of law review articles. articles. review of law number a and books several in found be can provisions Persecution Principle “No-Funding” the and Amendment Blaine the Understanding 219–21 (2004) (describing difficulties in amending to constitutions school permit state programs). voucher amendment and revision as a way to rid state constitutions of these these of constitutions state rid to way as a revision and amendment application. their limit or provisions outright repeal as was attempted in Florida or through an an or through in Florida attempted was as outright repeal Turn After Federal Challenges to Blaine Amendment Fails Amendment Blaine to Challenges Federal Turn After Heytens, Heytens, 33912-alb_76-4 Sheet No. 131 Side A 09/10/2013 07:04:50 09/10/2013 A 131 Side No. Sheet 33912-alb_76-4 33912-alb_76-4 Sheet No. 131 Side B 09/10/2013 07:04:50 18 M K C Y RITICS C Most amendments proposed proposed amendments Most 16 L.J. 983, 1003 (2007) (explaining how New the Jersey LAUSES AND THEIR C 11,note at 674–75 (explaining statethat restrictions how ID ID UTGERS -A Foreword: Court Constraining Amendments and the State State the and Amendments Constraining Court Foreword: O supra , 38 R N I. Proposals to amend state no-aid clauses often have often clauses no-aid state to amend Proposals )9/8/2013 10:59 AM 17 DONE , Viteritti, , Visser Nooksack v. Sch. Dist. Valley No. 207 P.2d 198, 506, 204–05 (Wash. ( John Dinan, Dinan, John AUTHEN AUTHEN See See, e.g. See, e.g. See, When a state court addresses a claim involving separation of of separation involving a claim addresses court state When a I find that there has only been a single successful repeal of a no- a of repeal successful been a single only has I find that there 17 18 16 1949) (en banc) (noting that provisions within the Washington state constitution allow the allow the Washington state constitution the within provisions that (noting 1949) (en banc) providing a law upholding decision Court with a Supreme disagree” “respectfully to court have been designed to direct or authorize the legislature to to the legislature authorize or direct to have been designed were that the few program—and aid particular a undertake previous overturning at been directed have generally successful no-aid clause applying the state’s decisions state court restrictively. faced well-funded and well-organized opposition, and future future and opposition, well-organized and well-funded faced that efforts continuing suggests which well, will as likely proposals change constitutional formal through provisions these to remove challenges. difficult face will church and state, it may resolve it using the Federal Establishment Establishment Federal the it using resolve may it state, church and If both. or provisions, constitutional state relevant Clause or state that the find may court the constitution, state the to turning government state the on restrictions greater places constitution program the voiding thus Clause, Establishment Federal than the doctrine. federal under the be permitted otherwise that would Constitution of 1947 included an amendment that essentially preempted future state court court state future preempted essentially that amendment an of 1947 included Constitution public both in children to support certain provide to legislature the for by allowing rulings religious regarding amendments that “court-constraining noting and schools parochial and amendments”). court-overturning of form the took mostly establishment 2144 Albany LawReview [Vol. 76.4 [Vol. LawReview 2144 Albany a particular undertake government to the authorizing amendment In this suspect. be constitutionally might otherwise program that no-aid state amend to or repeal efforts I evaluate modern article, religious involving on proposals specifically focusing clauses, proposals past in result the Was schools. secondary and elementary have not, efforts If which in Florida? with the result consistent prospectsfor future the are What why? and been successful change? to or proposals repeal constitutional 1965. since Most aid clause before put those particularly have failed, clauses no-aid state amend process. initiative the through voters 2141 C “curtail” aid to religious schools continue to have a powerful effect, and that seventeen states states that seventeen and effect, a powerful to have continue schools to religious aid “curtail” such for that allow interpretations judicial or provisions constitutional have currently laws). “restrictive” Tradition Constitutional 33912-alb_76-4 Sheet No. 131 Side B 09/10/2013 07:04:50 09/10/2013 B 131 Side No. Sheet 33912-alb_76-4 33912-alb_76-4 Sheet No. 132 Side A 09/10/2013 07:04:50 26 Rather, 21 . 625, 638 (1985) 299, 323 (2003). Y ’ EV OL P .L.R UB 25 A Davey’s Plea: Blaine, Blair, Blair, Blaine, Plea: Davey’s An example comes comes example An V note 17, at 1003 (“Religion note 17, at 1003. at 1003. 17, note 23 , 71 supra . J.L. & P supra supra ARV Dinan, Dinan, Dinan, Dinan, , 27 H , 27 Joseph Viteritti, Only a handful of states have states of a handful Only 20 see also also see see also also see see also see Beyond the Establishment Clause: EnforcingSeparation of 24 . art.3;§ I, note 21, at 639 (asserting that no state court has ever construed ever construed has court state no 639 (asserting that 21, at note . art. I, § 3 (“[N]o preference shall be given by law to any religious law toby any religious be (“[N]o. given § art. shall 3 I, preference ONST ONST supra C , 207 P.2d at 204–05; at 204–05; P.2d , 207 19 )9/8/2013 10:59 AM .C . art. I, § 3. OWA LA Visser DONE , I , ( Compelled support clauses are found in twenty-nine state state twenty-nine in are found clauses support Compelled , A ONST at 631–34. at 631–34. C 22 Appendix A (providing a complete listing of religion clauses in state constitutions— in state clauses of religion listing a complete (providing A Appendix Woodland, Woodland, , and the Protection of Religious Freedom Religious of Protection the and , OWA AUTHEN AUTHEN Linda S. Woodland, Note, Note, Woodland, S. Linda See id. See, e.g. I See See e.g. See, e.g. See, See M K States use different types of constitutional provisions to restrict provisions restrict to constitutional of types use different States The second category of state constitutional restrictions and found and found restrictions category of state The constitutional second Although textually different from the Federal Establishment Establishment the Federal from different textually Although 21 22 23 24 25 26 19 20 C Y Church and State Through State Constitutional Provisions Constitutional State Through State and Church compelled support language as more restrictive than the First Amendment). Amendment). First the than restrictive more as language support compelled government support of of religion. government support language that mirrors the Federal Establishment Clause. Federal Establishment the language that mirrors constitutions and protect individuals (oftentimes collectively) from from collectively) (oftentimes individuals and protect constitutions institutions. religious support to being forced clauses in state constitutions are generally more detailed and separationist than the Federal Federal than the separationist and detailed more generally are in state constitutions clauses Establishment Clause.”). in thirty-two state constitutions are “no-preference” clauses. “no-preference” are constitutions state in thirty-two Again, these clauses by and large have not been interpreted by state state by interpreted not been and large have by clauses Again, these the Federal Establishment than restrictive more to be courts further and expense, public at schools within religious enrolled to children transportation Clause Establishment the under upheld be would question in law the though that explaining the fact that the not law foreclose it did the Constitution, of First Amendment within the own constitution); the state's offended 2012/2013] of constitutional understanding complete a Consequently, State Constitutional No-Aid Clauses must institutions religious of support governmental of limitations state appearing in of restrictions include an appreciation constitutions. 2145 2141 C which is the listing that provides the basis for my discussion of state religion clauses). clauses). religion state of my discussion for basis the provides that listing is the which from the Iowa constitution: “nor shall any person be compelled to to compelled be “norshall any person constitution: the Iowa from or rates for attend other pay taxes, tithes, any place of worship, any maintenance of or the worship, of places building or repairing ministry.” or minister, Clause, state courts generally have not interpreted compelled compelled interpreted have not generally courts state Clause, on government any greater restrictions to place clauses support Amendment. First the under imposed than those (stating that ten states have constitutional provisions that are identical to the First First the to are identical that provisions constitutional have states (stating that ten Amendment’s Establishment Clause). sect, society, denomination, or mode of worship. . . .”). .”). . . worship. of mode or denomination, society, sect, Witters most state constitutional restrictions fall into three categories— into fall restrictions constitutional most state no-aid and clauses, preference no clauses, support compelled clauses. 33912-alb_76-4 Sheet No. 132 Side A 09/10/2013 07:04:50 09/10/2013 A 132 Side No. Sheet 33912-alb_76-4 33912-alb_76-4 Sheet No. 132 Side B 09/10/2013 07:04:50 M K C Y 36 Frank R. Kemerer, note 14, at 69 (placing (placing at 69 14, note See , note 10 at 123 n.32 supra supra note note 10, at 166–68. note 11,298. at Congressman’s 1 (2002) (discussing differing state EP . 129, 129–30 (2008).. 129, 129–30 R supra supra EV , AW .L .L.R D O note (noting 12, and dispute at placing 514 n.95 AMBURGER , 120 E , 73 M , 73 That proposal, approved in the House House in the approved That proposal, art. III, § 36. § art. III, 36. supra 35 and, unlike the other categories of state state of categories other the and, unlike id. 28 With some variation in language, these in language, these With some variation Dusting Off the Blaine Amendment: Two Challenges to to Challenges Two Amendment: the Blaine Off Dusting because of their similarity to the Federal to the Federal similarity their because of 29 other states include them in the education them include other states note 28, at 131–32. 28, note note 28, at 129–30. 28, note 34 In some constitutions, no-aid clauses are part part are clauses no-aid constitutions, In some 31 Duncan, Duncan, note 21, at 640 (finding that mostinterpreted have state courts 30 No-aid clauses are often referred to as state to as state referred are often No-aid clauses supra supra note 10, at 129–31; Halstead, Halstead, 129–31; at 10, note See See 33 . art. I, § 19; § 19; I, . art. ,§ art. 11. VII, . art. 1, § 7. supra supra note 11, at 57–68; H supra )9/8/2013 10:59 AM ONST ONST ONST .C .C .C DONE , Schwartz, , Schwartz, ( supra YO O EB and some states have them in more than one location in in one location than more in have them states and some 27 32 , M Aaron E. Schwartz, Schwartz, E. Aaron Woodland, Heytens, ., N ., W ., AUTHEN AUTHEN See, e.g. See, Green, See See e.g. See, E.g. E.g E.g no-aidor all as “Blaine clauses some to refer scholars many above, noted As See The third category of state constitutional provisions restricting restricting provisions The third category state constitutional of 35 36 28 29 30 31 32 33 34 27 the or prohibiting religion of establishment an respecting any law make shall No State free exercise thereof; and no money raised by taxation in any State, for the support of of support the for State, in any taxation by raised money no and thereof; exercise free devoted lands public any nor therefore, fund any public from or derived schools, public so money any nor shall sect, religious any of control the under be ever shall thereto, denominations. or sects religious between divided be devoted so lands or raised, government support of religion, no-aid clauses, appear in thirty- in appear clauses, no-aid religion, of support government constitutions eight state of the bill of rights; provisions explicitly prohibit state support of religious schools schools of religious support state prohibit explicitly provisions and/or institutions. constitutional provisions that prohibit both direct and indirect aid to private sectarian sectarian private to aid indirect and prohibit direct both that provisions constitutional schools). article, 2146 Albany LawReview [Vol. 76.4 [Vol. LawReview 2146 Albany Clause. 2141 C number of state Blaine amendments at thirty-seven); Goldenzeil, Goldenzeil, at thirty-seven); amendments Blaine state of number the constitution. Missouri’s Anti-Establishment Tradition Anti-Establishment Missouri’s amendments” but there is some disagreement as to the exact number of Blaine amendments of Blaine number amendments exact the as to disagreement some is there but amendments” in state constitutions. their no-preference clauses consistent with the Establishment Clause, but identifying identifying Clause, but Establishment with the consistent clauses no-preference their place no-preferenceto state clauses their using Colorado and California from decisions government). state on restrictions greater Heytens, at thirty-eight); of amendments Blaine number considered be should provisions constitutional state many over how dispute a (addressing I inclusive, over being toward leaning and label their Whatever Blaine amendments). restricting explicitly contain provisions that constitutions state thirty-eight identified institutions. or schools religious of support or in to aid government Vouchers School and Constitutions State Blaine’s proposal read: read: proposal Blaine’s of Representatives but failing to obtain two-thirds support in the in the support two-thirds obtain failing to but of Representatives clauses religion Amendment’s the First applied Senate, would have to religious schools. aid government and prohibited states to the religion clauses, have often been interpreted to place greater to place greater often been interpreted have religion clauses, than the Federal of religion support on state restrictions Clause. Establishment Constitutional amendment proposed in 1875 by Representative Representative by in 1875 proposed amendment Constitutional Maine. of G. Blaine James “Blaine amendments” 33912-alb_76-4 Sheet No. 132 Side B 09/10/2013 07:04:50 09/10/2013 B 132 Side No. Sheet 33912-alb_76-4 33912-alb_76-4 Sheet No. 133 Side A 09/10/2013 07:04:50 , 41 . 295, . 295, 43 EV EV AMBURGER L. R ULSA Regardless 42 Focused on the Focused , 40 T , 2008 BYU L. R 38 note 11, at 57–68; note H supra . 205 (1875) (noting Senator Blaine’s Blaine’s . (noting 205 (1875) Senator The Connection Between the Blaine EC .R Green, Green, ONG See also also See Catholic immigrants saw the public schools the public saw immigrants Catholic 37 note 11, at 298. 11, note at The Insignificance of the Blaine Amendment Blaine the of Insignificance The . 39 note 11, at 669. 11, at 669. note note 12, at 516–21. For example, the enabling act for the admission of act for enabling admission the example, the For note 12, at 516–21. supra note 40, at 329. at 329. 40, note )9/8/2013 10:59 AM , note 11, at 92–94. at note 11, supra supra DONE ( supra supra State constitutional scholar G. Alan Tarr has noted that Tarr has noted that G. Alan scholar State constitutional supra 40 AMBURGER AUTHEN AUTHEN note 11, at 298 note Viteritti, Viteritti, H Stephen K. Green, Tarr, Duncan, Green, Mark Edward DeForrest, Locke v. Davey: Davey: v. Locke DeForrest, Mark Edward M K At the time of the proposed Blaine amendment, fifteen states states fifteen Blaine amendment, proposed the ofAt the time Congressman Blaine’s proposal was prompted by the religious the religious by prompted was proposal Blaine’s Congressman 38 39 40 41 42 43 37 C Y North Dakota, South Dakota, Montana and Washington required: “[t]hat provision be made made be provision “[t]hat required: Washington and Dakota, Montana South Dakota, North to open shall be which schools, of of a system public maintenance and for establishment the of 1889, Act ch.180, § 4, control.” sectarian Enabling from free States, and ofall children said (1889).25 Stat. 677 1875 Republican presidential nomination, Blaine’s proposed rewrite rewrite proposed Blaine’s nomination, presidential 1875 Republican It was in a sentiment. this tapped into of the First Amendment permitted still it as voters, anti-Catholic with popular most form not Protestantism was as it so long schools in public Protestantism sect. one of any while some states adopted no-aid clauses to address local conflicts conflicts local address to clauses no-aid adopted states some while such them to avoid adopted states other funding, over school included states some Additionally, future. the in arising conflicts so. doing were states other because merely provisions these 327–29. already had enacted some type of legal restriction on public support support on public legal restriction of type some enacted already had their to amendments by sometimes schools, of religious in these restrictions included states more and many constitutions, proposal’s federal the after decades the in constitutions their defeat. conflict generated by the common schools movement of the early the early of movement schools the common by generated conflict education public free of the development for 1800s advocating states. the in systems Finally, many states, particularly those in the west, included no-aid no-aid west, included those in the particularly states, Finally, many of Congressional because constitutions state in their clauses as a condition of statehood. to do so requirements Sess., 4 1st C 44th Cong., H.R.J. 1, Res. 2012/2013] State Constitutional No-Aid Clauses 2147 2141 C supra Amendment and Article I, § I, Article and Amendment Constitution State Washington the of 11 proposed amendment to Article XVI). XVI). Article to amendment proposed 320 (2004). when adopted and under what circumstances, many link all state state all link many what circumstances, under and when adopted century anti- to the nineteenth no-aid provisions constitutional proposal. federal the of time the at existing sentiment Catholic as hostile to their faith and values, so, in many states, they sought a a sought they states, many in so, and values, faith to their as hostile in resulting schools, own their for funds education public of share and Protestants hostile responses from nativists. 33912-alb_76-4 Sheet No. 133 Side A 09/10/2013 07:04:50 09/10/2013 A 133 Side No. Sheet 33912-alb_76-4 33912-alb_76-4 Sheet No. 133 Side B 09/10/2013 07:04:50 , M K C Y See, e.g. Similarly, the Similarly, the 48 For example, the Missouri Missouri the For example, 44 The Oklahoma constitution is similarly similarly is constitution The Oklahoma 45 note 11, at 587. No-aid clauses in the Florida, Georgia, Michigan, No-aid 587.Florida, Georgia, 11, note Michigan, at in the clauses 46 supra and restrict aid to religious schools in some way but way some in schools religious to aid and restrict .sec. art. II, 5. )9/8/2013 10:59 AM 47 . art. VI, § 6(c). . art. X, § 3. . X, art. note 11, at 578–81. . art. I, sec. 7. DONE ONST ( ONST ONST As these least restrictive provisions only prohibit support support prohibit only provisions restrictive least these As supra ONST .C 49 .C .C .C DeForrest, DeForrest, O KLA EL AN AUTHEN AUTHEN See M O Ohio. and Dakota, North Mexico, New Kentucky, Kansas, Delaware, Alabama, D K See id. See The least restrictive no-aid clauses appear in seven in seven appear clauses no-aid restrictive The least Although no-aid clauses are often identified collectively as a a as collectively identified are often clauses no-aid Although The remaining no-aid clauses fall between the restrictive and and restrictive the fall between clauses no-aid The remaining 44 45 46 47 48 49 DeForrest, DeForrest, constitution provides “[t]hat no money shall ever be taken from the the be taken from ever “[t]hat no money shall provides constitution or sect any church, of in aid or indirectly, directly public treasury, of religion.” denomination no-aid clause in the Kansas constitution provides, “[n]o religious religious “[n]o provides, constitution Kansas in the no-aid clause educational public the of any part control shall sects sect or funds.” constitutions single type of state constitutional restrictions, the restrictiveness of of the restrictiveness restrictions, constitutional state of type single language, in restrictive The most significantly. their text varies aid “indirect” and “direct” both prohibits constitutions, seven state institutions. and/or schools to religious 2148 Albany LawReview [Vol. 76.4 [Vol. LawReview 2148 Albany 2141 C Missouri, Montana, New York, and Oklahoma constitutions prohibit both direct and indirect indirect and both direct prohibit constitutions Oklahoma and York, New Montana, Missouri, aid. from particular sources, aid from other sources might fall outside might fall outside aid sources, other sources from particular from restriction. the constitutional the scope of they all but somewhat, text varies Their categories. least restrictive institutions, and/or schools of religious support to or the prohibit aid or aid “indirect” against prohibition any explicit although without the reads: “[n]either Constitution Utah’s For example, support. any make may subdivisions its political Utah nor of state or educational school any of support direct the for appropriation do not completely prohibit it. In addition, most in this category category in this it. most prohibit In addition, do not completely to restrictions not extend but do schools religious of support restrict Delaware’s example, For institutions. religious to aid government or existing, fund now of any portion “[n]o that out sets clause no-aid for tax, by raised or be appropriated, may hereafter which aid in or by, to, or used appropriated be shall purposes, educational school. or denominational church of any sectarian, restrictive, providing, “[n]o public money or property shall ever be ever be shall property money or public “[n]o providing, restrictive, for or indirectly, directly or used, donated, applied, appropriated, or denomination, church, any sect, of support or benefit, the use, of religion” system 33912-alb_76-4 Sheet No. 133 Side B 09/10/2013 07:04:50 09/10/2013 B 133 Side No. Sheet 33912-alb_76-4 33912-alb_76-4 Sheet No. 134 Side A 09/10/2013 07:04:50 , or or UND F 54 In In 53 note 11, at note 11, at ECKET 51 , B Blaine’s Bigotry: . 207, 228 (2003); supra , Justice Thomas Thomas , Justice Indiana’s no- Indiana’s EV 50 L. R Some state courts courts state Some Our Mission ULSA 55 , 540 U.S. 725. , at 540 . (addressing 957–58 (2003) 917, EV , 39 T Mitchell v. Helms Locke L. R In neither Supreme Court decision did did decision Court Supreme neither In The battle against them has has them against The battle 52 AME D See id. See gious Libertygious Foundation et al. in Supportof The website has a listing of past and current current has a listing and of website past The ’s Future: Vouchers, Sectarian Providers, and the the and Providers, Sectarian Vouchers, Future: ’s OTRE See id. See , 78 N , 78 , the Court found no connection between Washington’s no- Washington’s between connection no found Court , the , 530 U.S., 530 Morales, at 828 (citing v. Chicago 527 U.S. 41, 53–54 note 13, at 23–24; Michael J. Comment, Dailey, Mitchell supra Locke v. Davey v. Locke note 15, at 219 (arguing that a narrow interpretation of no-aidnarrow state (arguing interpretation that a 15, note at 219 )9/8/2013 10:59 AM . art. X, § 9. . X, art. .§ 6. art. I, supra DONE , Univ. v. of Cumberlands the Pennybacker, 308 S.W.3d 668, 681 (Ky. 2010) , Berg, , Berg, , Brief of Amici Curiae the Becket Fund for Religious Liberty et al. in Support of of et al. in Support Liberty Religious for Fund Becket the Curiae Amici of , Brief ( ONST ONST C .C TAH ND AUTHEN AUTHEN See, e.g. See, Lantta, See, e.g. U I e.g. See, M K No-aid clauses have been identified as a major impediment to the to the impediment a major as identified have been clauses No-aid 54 55 53 50 51 52 C Y asserted that, notwithstanding their restrictive language, no-aid language, restrictive their that, notwithstanding asserted the Supreme Court’s with consistently be interpreted should clauses Clause. Establishment the of interpretation addition, some have attacked their validity in state courts, in state validity their have attacked some addition, 680–99. 680–99. hurdles to school choice programs posed by state constitutions); Viteritti, Viteritti, constitutions); state by posed programs choice school to hurdles referenced the anti-Catholic sentiment at the time of the Blaine amendment proposals, noting noting proposals, amendment Blaine of the time the at sentiment anti-Catholic the referenced not do that we pedigree has a shameful to schools pervasively aid sectarian that “hostility to to disavow.” hesitate n.20 (1999)). But in the Court accept the constitutional arguments against the state provisions. Locke v. Davey, Davey, v. Locke provisions. state the against arguments constitutional the accept the Court 540 U.S. 712, 725 (2004); Helms, 530 v. Mitchell U.S. (2000) 793, (plurality opinion). 867 in opinion plurality Court’s Supreme the in However, aid clause and the proposed federal Blaine amendment. amendment. Blaine federal proposed the and clause aid cases in which the institute has been involved. involved. been has institute the in which cases 2012/2013] organization.” any religious by controlled institution State Constitutional No-Aid Clauses 2149 2141 C http://www.becketfund.org/our-mission (last visited Jun. 14, 2013). It is one of the leading leading of the one 14, It is 2013). Jun. (last visited http://www.becketfund.org/our-mission the overturn to seeking cases federal and state in amendments—active Blaine of state critics application. limit or their provisions clauses is one approach to circumvent their restrictive language). language). restrictive their circumvent to approach one is clauses Respondent, at 1, Locke v. Davey, 540 U.S.Respondent,Locke 712 (2004) (No. 540 Davey, v. 02-1315), at 1, 2003 WL 22118852, at *3; Brief Amicus of Curiae The Interfaith Reli Respondents, at 1, Helms, Mitchell 530 v. U.S. 793 (2000) (No. 98-1648), 1999 WL 792155, at and legal non-profit, public-interest is a Liberty Religious Fund for Becket *1–2. “The liberty. religious protecting on focused institute” educational (rejecting claim that section 189 is claim that section (rejecting a Blaine amendment down that should as a be struck Wash. Comm’n v. Witters Protection Clauses); Equal and Exercise Free of Federal violation for the Blind, 771 P.2d 1119, 1123–24 (Wash. 1989) (stating denial of vocational notno-aid violate did clause state under college at religious program for funds rehabilitation Clauses). Protection Equal or Exercise Free been and continues to be waged in a variety of ways. For example, For example, ways. in a variety of waged be to been and continues the United States to have unsuccessfully, so far have sought, critics equal or exercise free on clauses no-aid down strike Court Supreme they restrict because scope their limit or grounds, protection religion. of basis the on programs public in participation IraLupu C. & Robert Tuttle, W. Zelman Battles Constitutional of Round Next aid clause provides: “[n]o money shall be drawn from the treasury, from the treasury, money shall be drawn “[n]o aid clause provides: institutions.” theological or religious of any benefit the for Preventing School Vouchers in Oklahoma . . . Temporarily Oklahoma in Vouchers School Preventing adoption of state programs providing secular benefits to religious to religious benefits secular providing programs of state adoption the First under permissible be would that otherwise schools Clause. Establishment Amendment’s 33912-alb_76-4 Sheet No. 134 Side A 09/10/2013 07:04:50 09/10/2013 A 134 Side No. Sheet 33912-alb_76-4 33912-alb_76-4 Sheet No. 134 Side B 09/10/2013 07:04:50 . 60 M K EV C Y .L.R LB As the As 58 , 64 A 61 30–35 (1998). note 15, note at 219–21 (addressing LAUSES C Toward a Theory of Constitutional Constitutional of Theory a Toward supra ID ID ONSTITUTIONS -A C O N TATE S One reason for this difference is the is difference this One reason for Donald S. Lutz, Lutz, Donald S. 59 . of 355, state of 359 (1994) (measuringrates amendment while others have not, finding that the finding have not, while others State Constitutional Reform: Is it Necessary? it Is Reform: Constitutional State EV 56 MENDING MENDING A third line of attack against state no-aid no-aid state against attack of line A third 57 A .R see also see CI NDERSTANDING II. .S , U OL note 15, at 117 (explaining repeal amendment through as one approach .P ARR )9/8/2013 10:59 AM M T supra DONE LAN , Kotterman v. Killian, 972 P.2d,v. Kotterman 606, Killian, 625 (Ariz. 1999) (en banc) (holding the , Epeldi v. Engelking, 488 P.2d 860, 866–68 (Idaho 1971) (using Idaho’s no-aid ( at 1333–34; , 88 A Katz, Katz, G. A AUTHEN AUTHEN See W. Hammons, Christopher id. See See See, e.g. e.g. See, Formal constitutional change at the state level occurs in two two in occurs level state at the change Formal constitutional The average state constitution is almost five times longer than than longer times five almost is constitution state The average 58 59 60 61 56 57 to take against state Blaine amendments); Lantta, Blaine state Lantta, amendments); to against take amendment as option to authorize voucher programs in states with Blaine amendments). amendments). Blaine with states in programs voucher authorize to option as amendment clauses place greater restrictions on state government than the the than government on state restrictions place greater clauses Federal Constitution. greater frequency with which state constitutions are changed changed are constitutions state which with frequency greater of rate process—the and revision amendment through the formal times nine approximately is constitutions state of amendment the Constitution. of Federal amendment rate of than the higher clauses has been through the formal amendment process. amendment the formal through been has clauses The high frequency of state constitutional change has been change has been of state frequency constitutional The high political evolving including of factors, to a number attributed in tune with constitutions the need to keep in the states, attitudes the less most importantly, and, maybe society a modern needs of document. the altering for requirements legal arduous 2150 Albany LawReview [Vol. 76.4 [Vol. LawReview 2150 Albany with the coextensive to be clauses their have interpreted Clause, Establishment 2141 C 1327, 1328 (2001) (citations omitted). 1327, (2001) (citations 1328 tuition tax credit program did not violate federal or state constitutions); Bd. of Educ. v. v. Educ. of Bd. constitutions); state or federal violate not did program credit tax tuition Bakalis, 299 N.E.2d 737, 744–45 (Ill. 1973) (upholding school program transportation finding the under be permissible would that program transportation school down strike to clause federal BloomSch. v. Comm. Constitution); of Springfield, N.E.2d 379 578, 585–86 (Mass. 1978) (holdingprogram textbook the loan violated state no-aid the clause). stages: the proposal of an amendment or new constitution (i.e., (i.e., constitution or new an amendment of stages: the proposal to states the exist in techniques Four approval. its and revision) state the by change—proposal constitutional formal propose the Federal Constitution. constitutions). constitutions). Amendment success of efforts seeking change through the formal amendment amendment formal the through change seeking of efforts success the of the difficulty by in part, at least may be influenced, process the section the next in I address the state, in process amendment and how states in no-aid clause requirements amendment formal efforts. these of success the might affect states across variations that the state no-aid clause was not more restrictive than the federal Constitution). Constitution). federal the than restrictive more not was clause no-aid state that the 33912-alb_76-4 Sheet No. 134 Side B 09/10/2013 07:04:50 09/10/2013 B 134 Side No. Sheet 33912-alb_76-4 33912-alb_76-4 Sheet No. 135 Side A 09/10/2013 07:04:50 68 a 63 181 (G. ORNELL ORNELL All of All 62 , 17 C ONSTITUTIONS EFORM C available at 13 tbl.1.2 (2012) R at 13 tbl.1.2, 14 at 13 tbl.1.2, and others and others 64 Id. . 979, 979 (2008). TATE TATES EV S 3 S 3 2012], in , .L.R R ONSTITUTIONAL note 63, atnote 15 tbl.1.3. Mississippi C It empowers citizens to citizens It empowers Some require the vote to vote require the Some OOK OF THE 67 65 B 66 TATE supra supra S HE Delaware requires two-thirds vote in two in two vote two-thirds requires Delaware OVERNMENTS G 2012, Id. , 44 T Taking State Constitutions Seriously Constitutions State Taking GENDA OF Id. A Pacific Telephone, 87 87 O Telephone, Pacific TATE S HE OVERNMENTS :T OVERNMENTS G G Direct Democracy, the Guaranty Clause, and the Politics of the the of the Politics and Clause, the Guaranty Democracy, Direct TATE note 62, at 186. The states with no-aid clauses that permit its The its 186.clauses states no-aid 62, that permit at note with ENTURY TATE S Hawaii permits two-thirds vote in each house in one session or or session in one each house in vote two-thirds permits Hawaii S C Constitutional Amendment and Revision and Amendment Constitutional Four of these states adopted the initiative process initiative process the adopted Four of these states Id. supra 69 IRST )9/8/2013 10:59 AM 295, 297–300, 339–41 (2007) (providing overview and criticisms of use of of of 295, 297–300, criticisms use 339–41 (2007) (providing overview and OUNCIL OF -F Y ’ OUNCIL OF OL DONE OUNCIL OF C ( .P WENTY Benjamin, Benjamin, Marvin Krislov & Daniel M. Katz, Katz, M. Daniel & Krislov Marvin T See See Norman R. Williams, Norman Williams, R. UB AUTHEN AUTHEN See See See See Gerald Benjamin, Benjamin, Gerald New Nevada, Missouri, Minnesota, Massachusetts, Indiana, Arizona, are states The Nebraska Florida,The (a unicameral are Alabama, states Illinois, Kentucky, Kansas, Idaho, Georgia, Delaware, Colorado, California, Alaska, are states The New Nevada, Massachusetts, in: Indiana, is required over two majority vote sessions A M K Proposal by initiative is the most direct and controversial method method and controversial direct the most initiative is by Proposal 67 68 69 62 63 64 65 66 C Y amendment by initiative are Arizona, California, Colorado, Florida, Michigan, Mississippi, Mississippi, Michigan, Florida, California, Colorado, Arizona, are amendment by initiative South Oregon, Oklahoma, Ohio, Dakota, North Nevada, Nebraska, Montana, Missouri, Dakota. majority vote in each house in two sessions, and South Carolina requires a two-thirds vote in in vote a two-thirds requires Carolina South and sessions, in two each house in vote majority ratification. popular after vote majority a and propose to house each tbl.1.2. suggest constitutional amendments and, in a few states, to call a to call a and, in a few states, amendments constitutional suggest in 1902, Oregon in adopted First convention. constitutional FOR THE http://knowledgecenter.csg.org/drupal/content/book-states-2012-chapter-1-state-constitutions. J.L. & P constitutional initiatives can be used to propose changes to no-aid changes to no-aid used can be to propose initiatives constitutional of supporters allowing thereby states, fifteen in clauses members’ whose the legislature, to bypass change constitutional the access and change, constitutional to barrier be a may interests ballot directly. 2012/2013] constitutional by proposal initiative, by proposal legislature, State Constitutional No-Aid Clauses Legislative commission. constitutional by proposal and convention, of all percent ninety as approximately predominate, proposals manner. this in began constitutions state to amendments 2151 2141 C “Political Question” Doctrine: Revisiting Revisiting Doctrine: Question” “Political Mexico, New York, North Dakota, Oklahoma, Pennsylvania, South Dakota, Virginia, and and Virginia, South Dakota, Pennsylvania, Oklahoma, Dakota, North York, New Mexico, C Wisconsin. Ohio. and Hampshire, New legislature), Wyoming. and Washington, Utah, Texas, Carolina, South Montana, Mississippi, Michigan, Id. Wisconsin. and Virginia, Pennsylvania, York, sessions. legislative require a two-thirds vote in each house. in each vote require a two-thirds of proposing state constitutional change. constitutional state of proposing [hereinafter C handful require a three-fifths vote in each house, vote in each a three-fifths handful require take place over two legislative sessions. legislative two over place take initiatives in state constitutional change). change). constitutional state in initiatives Alan Tarr & Robert F. Williams eds., 2006). the states with no-aid clauses permit state constitutional change change constitutional state clauses no-aid permit with the states to regard with differ although they proposals, through legislative states no-aidclause Some needed. support legislative the level of amendments, house to propose in each vote require a majority 33912-alb_76-4 Sheet No. 135 Side A 09/10/2013 07:04:50 09/10/2013 A 135 Side No. Sheet 33912-alb_76-4 33912-alb_76-4 Sheet No. 135 Side B 09/10/2013 07:04:50 M K .J. M C Y . (2013), , 54 A AL Comparison of of Comparison .S.C NIV .U ]. NST I note 62, at 186. at 186. 62, note note 62, at 186. note The 62, exclusion supra supra note 62, at 186. at 186. 62, note The use of initiatives for for initiatives of The use EFERENDUM 75 supra Benjamin, &R Benjamin, . 13, 28–30 (1995). see also see EV see also see Benjamin, note 75, at 23–24 (noting the different standards related to 75, different standards the related note at 23–24 (noting to NITIATIVE .L.R , I note 62, at 186. at 186. note 62, 74 supra OLO see also also see Let the Voters Decide?: Voters the Let and the of Initiative An Assessment note 62, at 186. note 62, at supra Constitutional Referendum in the United States of America of States United the in Referendum Constitutional Although Illinois is a no-aid clause and initiative is a no-aid clause Illinois Although Comparison of Statewide InitiativeProcesses 70 supra , 66 U., 66 C . art. XLVIII, § 2; . amend. § XVIII, 2; )9/8/2013 10:59 AM Magleby, Magleby, .art. X, § 3; 3; § X, .art. DONE ONST ONST , Benjamin, ( 76 and Massachusetts, also a no-aid clause and initiative and initiative clause a no-aid also and Massachusetts, ONST .C .C All of the no-aid clause states where initiative is available, available, is initiative where states clause no-aid the All of it only permits use of the initiative to amend its legislative its legislative amend to initiative the of use permits it only the initiative from clause the no-aid explicitly excludes 72 Benjamin, Benjamin, .C 77 71 73 ASS ASS LL AUTHEN AUTHEN .nn.49, L. 496 50 (2006). 485, William B. Fisch, Fisch, William B. I See M M B.David Magleby, e.g. See, See generally Ballot access in initiative states is not a simple matter, and the the and matter, simple is not a states initiative in Ballot access The rise in the use of constitutional initiative has been attributed been attributed has initiative constitutional of use in the The rise 70 71 72 73 74 75 76 77 OMP Referendum Process Referendum overwhelming majority of initiative proposals never make it it make before never proposals of initiative majority overwhelming a to place overcome to burdens more difficult of the Two the voters. the and requirements signature are the the ballot on proposal the across to be distributed need the signatures extent to which state. to a number of factors. The proposal itself oftentimes will generate generate will oftentimes itself The proposal factors. of to a number and statewide both issue, the to attention media increased government and the with Voter frustration nationally. sometimes to its contributed industry also has the initiative growth of have supporters their and officials Finally, elected expansion. their to afford in an attempt process the initiative used increasingly protection. constitutional policies C has an indirect initiative process in that proposals meeting all requirements must be be must all requirements meeting proposals that in process initiative has an indirect theon ballot. appearing its review before for to thesubmitted legislature Statewide Initiative Processes 2152 Albany LawReview [Vol. 76.4 [Vol. LawReview 2152 Albany here— under study the period during change for constitutional (1972), (1992), and South Montana Mississippi Florida (1972), Dakota (1972). 2141 C was challenged unsuccessfully in Wirzburger v. Galvin, 412 F.3d 271, 274 (1st Cir. 2005).271, 274 (1st Cir. 412 F.3d v. Galvin, Wirzburger in unsuccessfully was challenged state, article, to seeking some by has been challenged that a restriction process, provision. the amend constitutional change is not without its critics, as some argue that that argue some as critics, its without not is change constitutional on pressures undue places effort, deliberative lacks the process can of the initiative, subject with the who may be unfamiliar voters minorities jeopardizes and interests, moneyed by be manipulated the of hands the in placed is change constitutional because majority. state, http://www.iandrinstitute.org/New%20IRI%20Website%20Info/Drop%20Down%20Boxes/Requ irements/A%20Comparison%20of%20Statewide%20I&R%20Processes.pdf (last visited Jun. 14, [hereinafter 2013) 33912-alb_76-4 Sheet No. 135 Side B 09/10/2013 07:04:50 09/10/2013 B 135 Side No. Sheet 33912-alb_76-4 33912-alb_76-4 Sheet No. 136 Side A 09/10/2013 07:04:50 85 81 For UTGERS note 63, 83 , 41 R supra 2012, See id. See Id. 84 OVERNMENTS G at tbl.1. at TATE note 63, at 15 tbl.1.3. Nebraska 63, note requires 15 at S see also id. also see supra At the time the Louisiana convention was held in in held was convention Louisiana the the At time OUNCIL OF Id. 2012, C and the lowest percentages Colorado percentages and the lowest The conventions held since 1965 in no-aid states clause since held conventions The 80 see also see with the highest percentages required by by required percentages with the highest Most state constitutions authorize the authorize the Most state constitutions 78 See id. See 86 OVERNMENTS G The Irony of Comprehensive State Constitutional Reform State Constitutional Comprehensive of Irony The note 62, at 195. 62, at 195. note Six of these states where change to the no-aid the no-aid to change where states these Six of 82 TATE )9/8/2013 10:59 AM S . art. III, § 2; supra DONE ( and Oklahoma ONST 79 .C (“Eight percent of legal voters for all candidates for governor at last election.”). election.”). last at governor for candidates all for voters of legal percent (“Eight (“Fifteen percent of total votes cast for all candidates for governor at last election.”). at last governor for candidates all for cast votes of total percent (“Fifteen at voters of number highest receiving office state for voters legal of percent (“Fifteen last at state of secretary for candidates all for votes legal total of percent (“Five EB OUNCIL OF AUTHEN AUTHEN Id. Id. N Benjamin, Kogan, Vladimir C Id. Id. Id. M K Although constitutional change in no-aid clause states primarily primarily states clause change in no-aid constitutional Although 82 83 84 85 86 78 79 80 81 C Y clause through initiative is available—Florida, Mississippi, Mississippi, is available—Florida, initiative clause through distribution and Ohio—impose Nebraska, Montana, Missouri, that there is some ensuring proposals, for initiative requirements state. the across proposal for the of support level minimum begins with legislatively proposed amendments and, where where and, amendments proposed with legislatively begins there initiative, popular through proposed amendments permitted, or modification to the repeal that could lead methods also are other the convention and constitutional provisions—the of these of as a method Conventions commission. constitutional due to years, likely in recent decreased change have constitutional the of and the unwillingness results of the the uncertainty change. constitutional state over cede authority to legislature signatures equal or greater than ten percent of registered voters and North Dakota’s Dakota’s North and voters of registered ten percent than greater equal or signatures population. state the of percent is four requirement minimum and year(s) New Hampshire are convened (1966, 1974,New York (1967), 1984), Pennsylvania (1967–68),Hawaii (1968, 1978), New (1969–70), (1969), Illinois Mexico Montana (1971–72), North (1971–72), Dakota Texas (1974). today. not it is although a no-aid1973–74, state, clause it was L.J. 892 app’x. 881, 1 (2010). Someof were matters theselimited conventions they in the were convened to address. signature requirements across various states); states); various across requirements signature Since 1965, state constitutional conventions have been held in ten have been held in ten conventions constitutional state Since 1965, one held was almost the most recent although states, no-aid clause thirty years ago. 2012/2013] of number tie the Dakota, North and Nebraska for except State Constitutional No-Aid Clauses population in of the that voted percentage the to needed signatures a previous election, and Missouri. 2153 2141 C legislature to call a convention, sometimes without the question the question without sometimes convention, a to call legislature last general state election.”). election.”). state last general election.”). general at 15 tbl.1.3. at 15 tbl.1.3. example, the Nebraska Constitution requires that the required required the that requires Constitution Nebraska the example, of voters registered of the “five percent include must signatures the state.” of counties the of two-fifths each of Arizona 33912-alb_76-4 Sheet No. 136 Side A 09/10/2013 07:04:50 09/10/2013 A 136 Side No. Sheet 33912-alb_76-4 33912-alb_76-4 Sheet No. 136 Side B 09/10/2013 07:04:50 . M K EV :A , 52 , 52 Id. C Y .U.L.R T ONSTITUTION .S L.J. 1075, 1078– C LA TATE UTGERS , 23 F , 23 S ORK but, across all states, states, all but, across The Role of the Constitutional Constitutional the of Role The , 36 R Y 88 There are a handful of of There are a handful 87 EW . 1017, 1020 (2002).. 1020 1017, N It created a thirty-seven It created a thirty-seven EV Lessons learned from the the from Lessons learned 91 HE note 63, note at 16 tbl.1.4.Theno-aid clause In two no-aid clause states— clause In two no-aid 94 89 T .L.R in LB supra Citizen Initiatives in Florida: of An Analysis 95 , Getting from Here to There: Twenty-First Century Century Twenty-First There: to Here from Getting , 65 A , 65 2012, Criticism of the commission after those those after the commission Criticism of 93 note 87, at 1081. 87, note OVERNMENTS note 62, at 191. note 62, at 90 G The Mandatory Constitutional Convention Question Referendum: The The Referendum: Question Convention Constitutional Mandatory The supra TheNeed to Revise theFlorida Constitutional Revision Commission note 62, at 191 (citingnote Robert 62, at 191 Williams, supra supra TATE It proposed eight amendments in the 1978 election election the 1978 in eight amendments It proposed note 93, at 488–92 (indicating that only one of the eight proposals waseight proposals of the one only at 488–92 (indicating that note 93, )9/8/2013 10:59 AM S 92 supra supra 78 (Gerald Benjamin ed., 78 (Gerald 1994)). Benjamin DONE ( supra . 485 (2000). 475, OOK B Benjamin, Benjamin, EV ; Hosak, & Marsha K. Jameson P. OUNCIL OF AUTHEN AUTHEN Tarr & Williams, Williams, & Tarr See Id. Joseph W. Little, Benjamin, Little, G. Alan Tarr & Robert F. Williams, Williams, F. & Robert Tarr G. Alan C Benjamin, Gerald .L.R The method least available to propose amendments to state no-state to amendments propose to available least The method 90 91 92 93 94 95 87 88 89 RIEFING LA Mechanisms and Opportunities in State Constitutional Reform Constitutional State in Opportunities and Mechanisms member Constitutional Revision Commission in 1968 that first met met 1968 that first in Revision Commission Constitutional member the to changes ten years to consider in 1978 and meets every constitution. aid clauses is through a constitutional commission. Legislatures Legislatures commission. a constitutional is through aid clauses with assist to commissions temporary created have often to authority the without but or amendment revision constitutional constitutionally only the has ballot. Florida the on place proposals for amendments propose to the authority with commission created the electorate. to directly submission no-aid clause states that periodically submit the question whether whether question the submit periodically states that no-aid clause to voters, convention a constitutional to hold states with periodic question put to voters whether to call a convention are Alaska, Hawaii, Hawaii, Alaska, are convention a call to whether to voters put question periodic with states Oklahoma. and Ohio, York, New Hampshire, New Montana, Missouri, Michigan, Illinois, earlier experiences resulted in a more successful meeting meeting of the in a more successful resulted earlier experiences tempered more of its of nine eight out when 1998 in commission voters. by ratified were proposals 79 (2005). most periodic calls are rejected; between 1970 and 2002, voters voters and 2002, 1970 between rejected; are calls most periodic four occasions, on only for conventions calling approved questions times. twenty-five them but rejected B 2154 Albany LawReview [Vol. 76.4 [Vol. LawReview 2154 Albany not is authority where even but voters, the to being submitted the recognized often have courts theto legislature, expressly given to call. legislature the of authority implied 2141 C 417, 423–24 (1995). F Commission in StateConstitutional Change New York Experience in National Context National in Experience York New and none were approved. and none were defeats led to a legislatively proposed amendment in 1980 to abolish in 1980 amendment proposed led to a legislatively defeats the proposal. rejected it, but voters Florida and Montana—conventions also can be called through be called through can also Montana—conventions Florida and a convention convened has state neither although citizen initiative, process. using this Florida’s Constitutional Initiative Process, Issues, and Alternatives and Issues, Process, Initiative Constitutional Florida’s 33912-alb_76-4 Sheet No. 136 Side B 09/10/2013 07:04:50 09/10/2013 B 136 Side No. Sheet 33912-alb_76-4 33912-alb_76-4 Sheet No. 137 Side A 09/10/2013 07:04:50 : , 103 The NITIATIVE I EGISLATION L except for for except and New and New For most Becky Kruse, Kruse, Becky 97 98 99 IRECT In the no-aid no-aid the In , D OLITICS OF 100 see also see also P Methods of Altering State State Altering of Methods See id. See AGLEBY HE B. M :T 90 (1984); proposals for constitutional for constitutional proposals AVID 96 note 63, at 13 tbl.1.2. 63, at 13 note Nevada requires a majority vote in two Nevadamajority in two requires vote a TATES S EMOCRACY AnnePermaloff, D supra See id. See NITED U 2012, IRECT IRECT Id. , D See generally . 217, 237–44 (2003) (describing roles of commissions in state . 217, state 237–44 (2003) in of (describing commissions roles EV 101 66–67 (1989) (“[A] 5 to drop-off 15 percent orof falloff voter RONIN OVERNMENTS at 13 tbl.1.2, 14 tbl.1.2. In Hawaii, the majority vote on the on the vote majority the Hawaii, tbl.1.2, 14 tbl.1.2. In at 13 G .L.R Id. ECALL E. C ROPOSITIONS IN THE R P UMB TATE )9/8/2013 10:59 AM note 61, at 34. at 34. 61, note S AND DONE , This has led state constitutions increasingly beingincreasingly constitutions state This has led , 33 C ( HOMAS ALLOT at 13 tbl.1.2, 15 tbl.1.3. Mississippi requires a majority but there is a threshold requires at 13 tbl.1.2, there is a threshold Mississippi tbl.1.3. 15 majority but a supra T B , 102 Illinois permits approval with a majority voting in the election or three-fifths voting or three-fifths voting election in the a majority voting with approval Illinois permits ARR OUNCIL OF See id. T See Id. AUTHEN AUTHEN C Id. Id. Id. M K The need for popular ratification of proposals contributes to the to the contributes proposals of ratification popular The need for In all no-aid states but Delaware, but states all no-aid In 101 102 103 96 97 98 99 100 EFERENDUM OTING ON C Y change, whatever their source, must before the source, must their be change, whatever voters for placed vote majority a require all states, clause no-aid the Of ratification. amendments, proposed legislatively of for approval Florida, which requires a three-fifths majority, a three-fifths requires which Florida, complexity and dynamics of the process, given that the ratifiers of of given that the ratifiers the process, of and dynamics complexity for proposal the control that the groups from differ the change change. Truth in Masquerade: Regulating False BallotPropositionRegulating AdsTruth in Masquerade: State Through Anti-False viewed as “political documents,” involving campaigns for and and for campaigns involving documents,” “political viewed as for of candidates campaigns resemble that proposals against ballot between differences some there are But office. electoral example, For elections. candidate and elections measures voters, fewer attract generally propositions ballot constitutional in participating the number between drop-off ballot significant with vote for office who and those on ballot elections the proposition. V amendment must be at least fifty percent of the total votes cast at the election, and in and in election, the at cast votes total the of percent fifty least at be must amendment at least be thirty-five must at least the vote on amendment of majority percent the Nebraska election. the in cast votes total the R clause states where initiative is available, two states place higher place higher states two available, is initiative where states clause initiative than through proposed on amendments vote requirements vote required for the otherwise through legislative proposal; same. the is approval Constitutions rejected by voters in 1998). 2012/2013] State Constitutional No-Aid Clauses 2155 2141 C states, the necessary majority is based on those voting on the those voting on the on majority is based necessary the states, voting a majority require and Wyoming but Minnesota amendment, the in a ballot cast to not choosing voters so that in the election, of approval. the chances will harm referendum participation is common in state issue elections.”); D elections.”); issue state in is common participation constitutional change with emphasis on Florida experience). experience). Florida on emphasis with change constitutional Hampshire, which requires a two-thirds majority. a two-thirds requires which Hampshire, requirement for constitutional initiatives. initiatives. constitutional for requirement initiatives. constitutional ratify to elections general consecutive on the amendment. amendment. the on 33912-alb_76-4 Sheet No. 137 Side A 09/10/2013 07:04:50 09/10/2013 A 137 Side No. Sheet 33912-alb_76-4 33912-alb_76-4 Sheet No. 137 Side B 09/10/2013 07:04:50 11 M K A A TATE C Y 2010]. S 107 TATES available OUNCIL OF S OUNCIL OF OOK OF THE note 106. note 103, 78–95, , 42 B OUNCIL OF 3 (2012), 2006]; C supra C OVERNMENTS G supra OOK OF THE , TATES See See S TATE . S , 38 B OVERNMENTS AGLEBY G sources cited sources OVERNMENTS M TATES G S See TATE OOK OF THE . S B TATE OUNCIL OF S 14 tbl.1.3 tbl.1.2, (2009) [hereinafter 16 OVERNMENTS HE G TATES which higher significantly was S 109 106 see generally 44 T TATES TATE OOK OF THE in OUNCIL OF S S , B 12 tbl.1.2, 14 tbl.1.3 (2005) [hereinafter C OUNCIL OF HE Procedurally, the direct initiative is the initiative direct Procedurally, the OOK OF THE 2009]; C TATES B . of certain complexity 129, the (noting 143–44 (2001) that In addition, given that they are not the the they are not given that In addition, 110 S EV HE OUNCIL OF 108 Why State Constitutions Differ in their Treatment of Same-Sex Same-Sex of Treatment their in Differ Constitutions State Why OOK OF THE .L.R note at 103, 66–84; . 1222, 1225 (2010) (addressing how contemporary constitutional . 1222, 1225 (2010) (addressing constitutional how contemporary 2005]; C For example, between 2000 and 2009, there was a was 2009, there 2000 and between For example, , 41 B ALIF note 75, at 45. 75, at 45. note OVERNMENTS OOK OF THE OL 104 G 105 supra )9/8/2013 10:59 AM note 61, at 142 (explaining that “the infrequency of organized opposition to to opposition organized of infrequency that “the at 142 (explaining 61, note , , 89 C supra , 37 , 37 B TATE DONE ( S supra RONIN , C Arthur Lupia et al., , 72 J. P OVERNMENTS at 43–44. at OVERNMENTS 13 tbl.1.2, 15 tbl.1.3 (2010) [hereinafter C ARR G G This number was calculated by the author from data contained in Tables 1.2 and 1.3in Tables 1.2 contained data the from author calculated by number was This Magleby, Id. See See See T and 1.3 in Tables 1.2 contained data the from author calculated by number was This AUTHEN AUTHEN In the end, for formal state constitutional change to occur, two two to occur, change constitutional state formal In the end, for Legislatively proposed amendments, the proposals most often on on often most the proposals amendments, Legislatively proposed http://knowledgecenter.csg.org/drupal/content/state-constitutional-developments-2011. 107 108 109 110 104 105 106 OVERNMENTS OUNCIL OF TATE TATE TATES requirements must be met: the procedural requirement to put the to put the requirement be met: the procedural must requirements the for requirement the election-day and voters the before proposal to be approved. proposal product of legislative debate and revision, initiatives oftentimes oftentimes initiatives debate and revision, of legislative product and ultimately confusion more to leading worded, may be poorly the voters. by opposition increased C than the 39.9% approval rate (158 on the ballot) for initiatives. for ballot) on the (158 rate approval than the 39.9% appearing various volumes of T volumes various appearing appearing in various volumes of T volumes in various appearing tbl.1.2, 13 tbl.1.3(2006) [hereinafter C [legislatively proposed] amendments” contributes to a high rate of ratification). ratification). of rate high a to contributes amendments” proposed] [legislatively 103–18 (addressing voter turnout and behavior in referendum and initiative contests). contests). initiative and referendum in and behavior turnout voter 103–18 (addressing Speech Statutes G S S S 2156 Albany LawReview [Vol. 76.4 [Vol. LawReview 2156 Albany amendment a constitutional in participating voters In addition, and whole a as voters as representative less be to tend election than they have proposals on these have less information oftentimes on candidates. 2141 C Over that same time period, no proposals were initiated by constitutional conventions, and and by constitutional initiated conventions, proposals were no period, time Over that same Dinan, John adopted. were of which three commissions, four by constitutional initiated were State Constitutional Developments in 2011 few factors contribute to this lower approval rate for initiatives. rate for initiatives. approval to this lower contribute factors few positions reflect to tend initiative by ballot the on placed The issues well have not fared that groups or reform by ideological espoused before the legislature. 77.7% approval rate for legislatively proposed constitutional constitutional proposed for legislatively rate 77.7% approval (780 on the ballot), amendments at outcomes on same-sex marriage is explained by integrating state level attitudes with state with state attitudes level state by integrating is explained marriage same-sex on outcomes amendment). constitutional formal for requirements initiatives often leads to voter drop-off as such propositions are harder to understand). understand). to harder are propositions such drop-off as voter to leads often initiatives the ballot, generally deal with issues of governing that do not not that do governing of with issues deal generally the ballot, high a relatively in resulting opposition, significant generate approval rate. Marriage 33912-alb_76-4 Sheet No. 137 Side B 09/10/2013 07:04:50 09/10/2013 B 137 Side No. Sheet 33912-alb_76-4 33912-alb_76-4 Sheet No. 138 Side A 09/10/2013 07:04:50 see also see also 113 note 60, at 367 60,note at The only The only Thus, one 114 111 See of Comparison supra supra ALLOT B noteat 14 tbl.1.3; 63, 115 supra supra note 69. note 69. 2012, In those states where initiative initiative where states In those supra , 112 LAUSES ON THE C note 69. note 69. note 67, at 309 (“Wherenote Direct Constitutional available, the OVERNMENTS AID - G supra O , N supra supra TATE S III. )9/8/2013 10:59 AM DONE ( OUNCIL OF Krislov & Katz, & Katz, Krislov C See See New Mississippi, Louisiana, Kentucky, Kansas, Idaho, Georgia, Alaska, Alabama, id. See Lutz, on relied author the state, each for amendment of rates For AUTHEN AUTHEN M K While no-aid clause states permitting formal constitutional formal constitutional While states permitting no-aid clause The most difficult amendment hurdles to overcome would be in be in would overcome to hurdles amendment difficult The most 111 112 113 114 115 C Y change through direct initiative or with less restrictive legislative legislative restrictive with less initiative or change through direct for locales attractive to be might appear requirements and electoral constitutional clause, no-aid state’s the of amendment or the repeal take to it for need perceived is a if there only occur change will in the constitution of a no-aid The mere presence clause place. tbl. A-1. tbl. A-1. Statewide Initiative Processes Initiative Statewide Mexico, Texas, Utah, Washington. Mississippi is an initiative state, but it is included in this in this included but it is state, is an initiative Mississippi Washington. Utah, Texas, Mexico, involvement. legislative requires process initiative its because category Initiative is quickly becoming the method of choice for citizen lawmakers.”). lawmakers.”). citizen for choice of method the becoming quickly Initiative is Comparison of Statewide Initiative Processes Initiative Statewide of Comparison 2012/2013] change constitutional formal which through method complex least State Constitutional No-Aid Clauses of proponents the change can can access ballot place, take because for proposals legislative While involvement. legislative without proposed those outpace significantly change still constitutional the use available, where both are in those states initiative, through in cut been years has thirty last over the proposals of legislative doubled. has nearly initiative of the 2157while the use half, 2141 C states among this group with above average rates of amendment average group with above amendment rates of this among states and York, Carolina. South New are Hawaii, those states without an initiative and where proposals must be be must proposals and where initiative an without those states a must by be approved or sessions two legislative approved over no-aid thirteen remaining The electorate. the of supermajority ten of might expect, one as and category, this fall in states clause amendment. of rates low have relatively states these would expect a significant number of proposals to amend no-aid no-aid amend to proposals number of significant a would expect allow that states clause no-aid fourteen the from to emanate clauses initiatives. constitutional direct is not available, the easiest road to constitutional change would be change would be to constitutional road the easiest is not available, a vote require a single in proposals legislative where states is achieved measure the of where approval and session legislative in this states no-aid eleven are There majority. electoral through an given that its is included, constitution if Louisiana category (twelve period). study the of the beginning at clause no-aid a included 33912-alb_76-4 Sheet No. 138 Side A 09/10/2013 07:04:50 09/10/2013 A 138 Side No. Sheet 33912-alb_76-4 33912-alb_76-4 Sheet No. 138 Side B 09/10/2013 07:04:50 M K C Y 120 While ONSORTIUM C 119 the “Ballot 121 NIVERSITY This uncertainty -U 118 NTER , I The other type, preemptive preemptive type, The other 117 There are two types of court- 116 note 17, at 986 (describing history and types of “court-constraining of and types “court-constraining (describing history note 17, at 986 )9/8/2013 10:59 AM supra . (1995), http://www.icpsr.umich.edu/icpsrweb/ICPSR/studies/6 visited (last ES DONE ( at 986–89. at 986–89. .R Dinan, Dinan, OC See id. See id. See id. See id. See 6) (ICPSR Materials Election Primary and Referenda AUTHEN AUTHEN .&S My focus here is on no-aid clause repeal or amendment proposals proposals amendment or repeal clause on no-aid is here My focus I identified ballot proposals affecting state no-aid clauses and no-aid and clauses state affecting proposals I identified ballot 116 117 118 119 120 121 OL court-constraining amendments, are designed to avert future court court future to avert designed are amendments, court-constraining or practice a program whether uncertainty the of because decisions written. as constitution the under is authorized amendments”). constraining amendments. Reactive court-constraining court-constraining Reactive amendments. constraining and court decision a state to overturn are adopted amendments has the court that a statute enact to the legislature authorize under the constitution. nullified may result from courts in other states using their constitutions to to constitutions their using states in other courts from may result considered. being practices or programs similar invalidate P 2158 Albany LawReview [Vol. 76.4 [Vol. LawReview 2158 Albany being interpreted is not a need if the clause be enough of might not be permitted would that otherwise programs to curtail restrictively state if example, For Clause. Establishment under the Federal with be consistent to clause no-aid the state interpreting are courts see would the legislature in few Clause, Establishment the Federal states, in initiative and, an amendment, proposing for the need expensive an undertake to compelled less be would citizen groups in courts if However, campaign. approval and proposal initiative or the restrictively clause no-aid the interpreting are the state environment different a be will there will, that they is expectation for available methods and the formal change, for constitutional matter. change may elementary religious of support public affect may or that address change constitutional Because the need for schools. and secondary a no-aidclause the presence more than just by be driven likely will be “court- to I expect most proposals in the constitution, amendments. constraining” 2141 C court-constraining amendments might focus on on might focus a specific permitting amendments court-constraining the of repeal a complete involve also might they policy, program or restrictive. less it make to it of rewriting general a or provision their application to religious elementary and secondary schools and secondary schools elementary religious to their application on data I used were Primary sources sources. using multiple the Inter-university through available initiatives and referenda Research, and Social Political for Consortium 33912-alb_76-4 Sheet No. 138 Side B 09/10/2013 07:04:50 09/10/2013 B 138 Side No. Sheet 33912-alb_76-4 33912-alb_76-4 Sheet No. 139 Side A 09/10/2013 07:04:50 56 , 17 , 17 TATE TATE OMER and See See UIDE TO 126 (2013), D. K :AG note 106. For ICHARD I focused on focused I R supra 124 EGISLATURES See ONSTITUTIONS http://www.alec.org/docs/IJ- .L C T S , which published developments developments published , which sources cited sources TATE S I also relied on various various on relied I also EWS N See OF . 123 Council of State Governments, S State Governments, Council of . Voters Versus Vouchers: An Analysis of of An Analysis Vouchers: Versus Voters available at and data on initiative ballot on initiative ballot and data ONF See note note 69. C 122 TATES HOICE AND S C L ’ supra , OVERNMENT 76, 76–80 (Sept. 1999). Additionally, I referred to AT G 1 (2007), Constitutional Amendment and Revision Revisited Revision and Amendment Constitutional CHOOL , N APPAN TATE ,S S K OOK OF THE Table 1 sets out the results by state, by the results out Table 1 sets B ROGRAMS P 125 HE USTICE ELTA J D HI HOICE FOR . C )9/8/2013 10:59 AM NST , 81 P ,I Table 1. DONE CHOOL ( . S EILY N 153, 153–79 (1987); Albert J. Menendez, EWS N Delaware’s 1967 proposal to its no-aid amend clause to to did not be the need submitted infra See Ballot Measures Database Measures Ballot Institute Referendum & Initiative See information or state of secretaries state of offices were I consulted sources state The AUTHEN AUTHEN T ’ LARK M K For each proposal, I determined whether the proposal was placed placed was the proposal whether I determined For each proposal, 125 126 122 123 124 ESIGNING OV UBLIUS C Y other sources, including those in individual states. in individual those including sources, other the early years, I resorted to the to resorted I years, early the several annual editions of T editions annual several voters for ratification—it was approved by vote in the legislature over two sessions. over legislature in the by vote approved was ratification—it for voters offices of state legislatures. I consulted other various sources as well. well. as sources various other I consulted state legislatures. offices of D G Jun.referendastate returns 4,on state election 2013) (compiling county and the from both century). twentieth late the to century mid-nineteenth the from levels &C 2012/2013] the National by and maintained compiled Database” Measures State Constitutional No-Aid Clauses Legislatures, of State Conference 2159 2141 C Del. Laws 37–38 (1967). Del. Laws ALEC-school-choice.pdf; JaniceC. May, P within state governments on basis. a monthly within state governments proposals between 1965 and 2012 to reflect the more modern efforts efforts more modern the 1965 and 2012 to reflect between proposals into insight more may provide which provisions, these to amend in the data if it included was A measure efforts. future amendment the amend to proposed clause, no-aid state’s the repeal to proposed affecting or practices programs to specific it applied as no-aid clause the rewrite to proposed schools, secondary or elementary religious to its application could influence that way in a no-aid clause secondary or elementary religious affecting practices or programs other some in constitution state amend the to or proposed schools, to no-aid clause the of the application limit would that way secondary or elementary religious affecting practices or programs schools. or convention, initiative, legislature, the by on the ballot to provided the ballot question/summary obtained and commission I identified the end, In result. vote popular the and the voters states clause no-aid the of morethan half from thirty proposals clauses no-aid of state the application or affecting amending the before were put which one of 1965 and 2012, all but between voters for ratification. measures compiled by the Initiative and Referendum Institute at at Institute and Referendum the Initiative by compiled measures California. Southern of the University http://www.ncsl.org/legislatures-elections/elections/ballot-measures-database.aspx. http://www.ncsl.org/legislatures-elections/elections/ballot-measures-database.aspx. Referendum Data Referendum 33912-alb_76-4 Sheet No. 139 Side A 09/10/2013 07:04:50 09/10/2013 A 139 Side No. Sheet 33912-alb_76-4 33912-alb_76-4 Sheet No. 139 Side B 09/10/2013 07:04:50 M K C Y The The 127 )9/8/2013 10:59 AM Table 2. DONE ( See infra infra See AUTHEN AUTHEN 127 2160 Albany LawReview [Vol. 76.4 [Vol. LawReview 2160 Albany and subject. type proposal by setsTable 2 out the measures 2141 C subject of the proposals varied significantly. Some involved a repeal a repeal involved Some varied significantly. proposals the subject of to any specific reference without clause the no-aid or rewrite of clause no-aid to repeal 2012 proposal Florida’s (e.g., program (e.g., program only policy or a single referenced language), some only), loans textbook secular addressed proposal 1982 California’s initiative 1986 Missouri’s (e.g., programs multiple referenced others and student textbooks secular services, covered handicapped in more support addressed still others while transportation), “aid” referenced 1982 proposal Massachusetts’ (e.g., general terms If schools). and secondary elementary private attending to pupils it appears proposal, in the referenced was one program more than is the proposals of language 2. Table in The ballot times multiple B. in Appendix out set 33912-alb_76-4 Sheet No. 139 Side B 09/10/2013 07:04:50 09/10/2013 B 139 Side No. Sheet 33912-alb_76-4 33912-alb_76-4 Sheet No. 140 Side A 09/10/2013 07:04:50 HE ,T n/a n/a ARGRAVE H approval approval 64,211 (54.0%) Votes against against Votes 156,855 (57.4%) 262,676 (42.1%) 684,818 (59.7%) 253,945 (56.9%) 250,529 (57.8%) 126,737 (28.3%) 229,824 (44.2%) 519,196 (60.7%) 782,982 (60.3%) EE 4,286,572 (55.5%) 1,160,130 (62.1%) 1,154,069 (69.7%) 1,078,740 (43.2%) 2,075,583 (74.3%) 2,767,320 (69.1%) 3,487,513 (72.4%) 4,411,672 (61.1%) 3,567,833 (69.6%) 7,422,037 (70.5%) 1,011,901 (66.8%) L W. See 18 (1991) (describing issues n/a n/a (44.5%) (56.8%) (30.9%) (27.6%) (38.9%) (30.4%) (29.5%) UIDE 3,441,330 1,416,838 1,235,533 1,327,999 2,810,191 1,561,514 3,101,193 approval approval Votes for Votes 54,636 (46%) G 116,373 (42.6%) 360,980 (57.9%) 708,034 (39.7%) 502,170 (30.3%) 718,440 (25.7%) 463,198 (40.3%) 191,986 (43.1%) 182,827 (42.2%) 320,909 (71.7%) 289,683 (55.8%) 336,382 (39.3%) 503,162 (33.2%) 515,942 (39.7%) 128 Fail Fail Fail Fail Fail Fail Fail Fail Fail Fail Fail Fail Fail Fail Fail Fail Fail Pass Pass Pass Pass Pass Table 1 EFERENCE Pass Result Result 1965-2012 :AR Source Source Initiative Initiative Initiative Initiative Initiative Initiative Initiative Initiative Initiative Initiative Initiative Proposal Legislative Legislative Legislative Legislative Legislative Legislative Legislative Legislative Legislative Legislative Legislative Legislative Legislative Legislative Legislative Legislative Convention Convention Convention Convention ONSTITUTION C )9/8/2013 10:59 AM Affecting State Support of Religious Schools State Support Affecting TATE DONE ( S Approval of Proposed Amendments to No-aid Clauses to No-aid Amendments Proposed of Approval Idaho (1972) Louisiana voters were asked to cast two votes. The first vote (listed here) was for the the for was here) (listed vote first The cast two votes. to asked were voters Louisiana AUTHEN AUTHEN Alaska (1976) Oregon (1972) Oregon Florida (2012) Missouri (1976)Missouri Colorado (1992) Colorado (1998) Michigan (1970) Michigan (1978) Michigan (2000) Michigan Delaware (1967) Nebraska (1966) Nebraska (1970) Nebraska (1972) Nebraska (1976) State and Year Year and State Louisiana (1974) Louisiana New (1967) York California (2000) California (1982) California (1993) M K 128 Massachusetts (1986) Massachusetts Massachusetts (1982) Massachusetts OUISIANA C Y approval of the Constitution and the second was to choose between two versions of the of the versions two was between the second to choose and Constitution of the approval Both structure. board education higher state to with regard differed that article education no-aid the clause. excluded article education of the versions L 2012/2013] State Constitutional No-Aid Clauses 2161 2141 C surrounding approval of the new Constitution). Constitution). new of the approval surrounding 33912-alb_76-4 Sheet No. 140 Side A 09/10/2013 07:04:50 09/10/2013 A 140 Side No. Sheet 33912-alb_76-4 33912-alb_76-4 Sheet No. 140 Side B 09/10/2013 07:04:50 M K C Y 741,863 (67.8%) 187,757 (43.2%) 127,530 (46.1%) 195,936 (53.0%) 565,444 (60.5%) 377,107 (43.3%) 298,016 (25.5%) 585,511 (49.6%) 351,977 (32.2%) 247,061 (56.8%) 148,813 (53.9%) 173,650 (47.0%) 369,775 (39.5%) 494,236 (56.7%) 871,707 (74.5%) 595,075 (50.4%) Fail Fail Fail Pass Pass Pass Pass Pass Pass Initiative Initiative Legislative Legislative Legislative Legislative Legislative Legislative Legislative Legislative )9/8/2013 10:59 AM DONE ( AUTHEN AUTHEN Oregon (1990)Oregon Wisconsin (1967) Wisconsin (1972) Wisconsin (1972) Wisconsin Washington (1975) Washington South Dakota (1986) Dakota (1986) South Dakota (2004) South South Carolina (1972) Carolina (1972) South 2162 Albany LawReview [Vol. 76.4 [Vol. LawReview 2162 Albany 2141 C 33912-alb_76-4 Sheet No. 140 Side B 09/10/2013 07:04:50 09/10/2013 B 140 Side No. Sheet 33912-alb_76-4 33912-alb_76-4 Sheet No. 141 Side A 09/10/2013 07:04:50 AM

10:59

(1974)

Louisiana Louisiana

(1967); (1967);

Convention New York York New Convention

(2000) (2000)

Michigan Michigan

(2000); (2000);

California California

(2000) (2000) (1993); (1993);

Michigan Michigan California California

; ; (1970) (1992); (1992);

Colorado Colorado Michigan Michigan

(1976) (1976) (1978); (1978); (1998); (1998); (2000) (2000)

Missouri Missouri Michigan Michigan Colorado Colorado Michigan Michigan

; ; (1970) ; ; (1970) (1976) (1976) (1990); (1976) (1976) (1970); (1970);

Michigan Michigan Michigan Michigan Missouri Missouri Oregon Missouri Missouri Initiative Michigan Michigan Initiative

While some of the proposals While some of the proposals (2004) (2004) (1986) (1986) (1986)

South Dakota Dakota South Dakota Dakota

Massachusetts

131

Idaho (1972); (1972); Idaho South South (1982); (1982);

; ; (1967) (2004) (2004) (1986); (1986); Massachusetts

(1972) Wisconsin Wisconsin

South Dakota Dakota South Massachusetts Massachusetts (1976); Alaska

Carolina Carolina ; ; (1967) (2012) (2012) (1986); (1986); (1982); (1982); (1975);

South South Delaware Delaware Florida Florida Massachusetts Massachusetts Massachusetts Massachusetts Washington Washington

; ; (1972) (1972) (1976) (1972) (1972); (1972); (1982); (1982); (1966); (1966); (1982); (1982); (1970); (1970);

Wisconsin Wisconsin Nebraska Nebraska Wisconsin Wisconsin Nebraska Nebraska Oregon Oregon Massachusetts Massachusetts Nebraska Nebraska

California California Legislative Nebraska Nebraska Legislative

Materials Materials Schools Credit Credit

130

Instructional Instructional and Students Services Services Students Buildings Tax Replacement Replacement Clause of Time

Transportation Transportation Textbooks/ Vouchers to Aid Auxiliary Auxiliary Handicapped School Income Repeal / / Repeal Revision Release

Source Source

Proposal Proposal Subject Subject

)9/8/2013

Affecting State Support of Religious Schools, 1965-2012 Schools, Religious of Support State Affecting

129 Table 1. Table 1.

Subjects of Proposed Amendments to No-aid Clauses No-aid to Amendments Proposed of Subjects

DONE ( Table 2 2 Table Approved proposals appear in bold. bold. in appear proposals Approved of aid types or aid non-specific covering with language proposals includes category This See supra AUTHEN AUTHEN C

M K for voters the before put were proposals these of Twenty-nine 129 130 131 C Y not falling within other subject categories. categories. subject other within not falling

2012/2013] State Constitutional No-Aid Clauses 2163 2141 were put before the voters when the United States Supreme Court’s Court’s Supreme States when the United voters the put before were approval and nine were approved. approval and nine were 33912-alb_76-4 Sheet No. 141 Side A 09/10/2013 07:04:50 09/10/2013 A 141 Side No. Sheet 33912-alb_76-4 33912-alb_76-4 Sheet No. 141 Side B 09/10/2013 07:04:50 M K , 35 C Y 137 and all 134 all of the proposals proposals of the all 133 these while As a result, 135 These types of measures, measures, of types These Delegates were content with content were Delegates 136 139 Other efforts to repeal state no-aid state repeal to efforts Other 140 The Declaration of Rights of the Louisiana Constitution of 1974 For example, all of the proposals authorizing school school authorizing For all the proposals example, of )9/8/2013 10:59 AM 132 . of 1921, art. XII, § 13 (“No shall be public funds used for the support of any Table 2. Table 2. Table 2. Table 2. Table 2. ,v. 463 U.S. Allen, 388, Mueller are states 390 (1983) (confirming that , Bd. v. Everson of Educ., 330 U.S. 1,5–6 (1947) (holding that states which , Bd. of Educ. U.S. v. Allen, 392 236, (allowing 238 (1968) public authorities to DONE ( at 29–30. at 29–30. that convention delegates unanimously proposed to proposed unanimously delegates convention that ONST . 1, 29 (1974).. 29 1, Lee Hargrave, 138 .C EV A See, e.g. See, See, e.g. See supra See supra L See id. See See supra e.g. See, AUTHEN AUTHEN As reflected in Table 2, eighteen of these proposals addressed addressed proposals of these eighteen 2, in Table As reflected Louisiana voters’ adoption of its 1974 constitution represents the the represents constitution 1974 its of adoption Louisiana voters’ .L.R 134 135 136 137 138 139 140 132 133 A transportation programs for students in non-public schools were on on were schools in non-public students for programs transportation that the determination 1947 Court’s Supreme the the ballot after permissible; constitutionally was practice private or sectarian school.”). school.”). or sectarian private measures addressed policy questions, they also presented to the the to presented they also questions, policy addressed measures should constitution the state’s of whether clear question voters the Clause. Establishment Federal the than restrictive be more and instructional textbooks aid, of types other vouchers or transportation. student or materials, permitted to give a tax credit for educational expenses). expenses). educational for to tax credit give a permitted only successful effort to repeal a state no-aid clause. The state’s clause.The state’s repeal a state to no-aid effort successful only the education in clause a no-aid included constitution previous article L provide transportation to non-public schools does not violate due process). process). due violate not does schools non-public to transportation provide attending those twelve—including through seven grades in students to free for textbooks lend schools). private remove after relatively little debate. little relatively after remove of the proposals on tax credits for school expenses appeared after appeared after expenses school for tax credits on proposals of the them. of 1983 approval court’s the high 2164 Albany LawReview [Vol. 76.4 [Vol. LawReview 2164 Albany to with regard was evolving Clause jurisprudence Establishment after proposed were others 2, Table in to referred aid of the subject Federal the under permissible aid the declared had the Court Constitution. 2141 C what some might consider the core of religious school aid, received school received of religious the core aid, might consider what some even were approved, three only Indeed, voters. from support little proposal. legislative through ballot the on appeared most though clauses were not successful. One of the more contentious efforts efforts contentious more of the One successful. were not clauses the restrictions on aid to religious schools provided under the the under provided schools religious to on aid the restrictions no-aid the of repeal the and viewed Clause, Federal Establishment to regard with flexibility greater state the allowing clause as support. school religious permitting textbook loan programs appeared after the Court’s 1968 1968 Court’s the after appeared programs loan textbook permitting programs; of those constitutionally the upholding decision 33912-alb_76-4 Sheet No. 141 Side B 09/10/2013 07:04:50 09/10/2013 B 141 Side No. Sheet 33912-alb_76-4 33912-alb_76-4 Sheet No. 142 Side A 09/10/2013 07:04:50 , at 142 See The The ALIE supra supra EVIEW , R J. G The TATE 143 ETER The most The P OLITICAL . 7, 1972, at 20, N.Y. S 148 OV The proposed The proposed See :AP ,N 144 , 3, Apr. 1967, at 29 (“The OTERS OF AILURE V F IMES 43 (1973) (discussing various 43 (1973) (discussing various 310–12 (1996). LECTION Although the repeal of of the repeal Although E OMEN ORK 145 Y W EEDS OF , N.Y. T EW ,S N ENERAL ONVENTION note 142, at 29. It should be noted that the note noted It should 142, be that the at 29. C TATE :G . 343, 359 (1968). Response to proposal the 146 EAGUE OF L supra EGIS , N.Y. S ISTORY OF H The proposed repeal of New York’s no- New York’s of repeal The proposed AMPHLET It was handily defeated. handily It was see also see .J.L 141 ’P 147 ARV ONSTITUTIONAL OTERS OF V OTERS ,5 H ,5 The People: No! Some Observations onthe 1967 New York 1967 C ., V OMEN R ONSTITUTIONAL S ’ O W )9/8/2013 10:59 AM :AC TATE S DONE at 325–27 (citing fiscal concerns, court reform, and overall partisanship as other overall partisanship reform, court as fiscal concerns, and at 325–27 (citing ( TATE OF EAGUE OF IBERTY ORK S L L Y at 325, 327. Id. See id. See See See See alsoId. Revision? Just or New Document A Revision? Just or A New Document Kaden, Lewis B. AUTHEN AUTHEN EW M K N The other two unsuccessful efforts to repeal no-aid clauses came came clauses no-aid repeal to efforts two unsuccessful The other 145 146 147 141 142 143 144 Amends Oregon Constitution to provide as follows: “The Legislative Assembly shall shall Assembly Legislative “The as follows: provide to Constitution Oregon Amends exercise free the or prohibiting religion, of establishment an respecting law no make RDERED C Y conflicting viewpoints regarding the proposal to repeal the “so-called Blaine amendment”). amendment”). Blaine “so-called the repeal to the proposal regarding viewpoints conflicting Oregon proposal read: read: proposal Oregon OF repealing the “Blaine amendment” was divisive among the public. public. the among divisive was amendment” “Blaine the repealing Convention took place shortly after the state enacted the 1965 textbook loan program that the enacted that the 1965 textbook program the loan afterConvention shortly state the took place the on vote the before constitution. constitutional new found of Appeals Court New York Appeals’s of Court Bd. York U.S.New 238–41 of v. Allen, 236, Educ. 392 the (1968) (affirming students to be loaned to foruphold 1965 amendment textbooks that allowed decision the to schools). private attending Constitutional Convention Constitutional constitution, put before the voters as a single submission rather rather submission a single the voters as put before constitution, with remaining of the major changes submissions than separate failed. amendment, omnibus in an items 2012/2013] of a the proposal to leading its convention in York in New occurred State Constitutional No-Aid Clauses in 1967. new constitution that it was argued the no-aid clause of retaining Proponents prevent a diversion and separation church-state to ensure necessary schools. to religious schools the public 2165 from of funds 2141 C O intensity of feeling over whether the school-aid limitation should be modified indicates that that indicates be modified should limitation school-aid the over whether of feeling intensity delegates.”). convention the facing issue emotional most the may be the question in Oregon in 1972 and Florida in 2012. Oregon’s legislatively Oregon’s legislatively Florida in 2012. in Oregon in 1972 and no-aid and the clause would have repealed amendment proposed the Federal following clause establishment with an it replaced language. Constitutional the no-aid clause was a central issue in the debate at the the debate at the in a central issue was the no-aid clause the of defeat the to contributed also issues other Convention, polls. the at constitution proposed Convention ultimately approved its repeal, though the proposal proposal the though repeal, approved its ultimately Convention state the throughout dissension religious of months “three prompted . fierce was and the . . unseemly.” battle [where] note 141, at 61 (claiming that several other issues likely played a more important role in played likely severalnote other issues 141, in a more at 61 (claiming role that important decisions). voters’ primary reasons for the failed vote); vote); failed the for reasons primary available http://library.state.or.us/repository/2010/201003011350161/ORVPGenMari1972.pdf. aid clause as part of the new constitution has been referred to as to as been referred has new constitution the of as part aid clause the Convention.” of charged issue emotionally most “[t]he 33912-alb_76-4 Sheet No. 142 Side A 09/10/2013 07:04:50 09/10/2013 A 142 Side No. Sheet 33912-alb_76-4 33912-alb_76-4 Sheet No. 142 Side B 09/10/2013 07:04:50 . R M K .6, , 30 , 30 , O C Y OV N RLANDO The The , O 149 available at available at The proposed The proposed 152 MENDMENTS ON Pedigree of an Unusual of an Unusual Pedigree A ROPOSED ROPOSED P The court ruled that the that ruled court The 151 Opponents initially challenged the challenged initially Opponents 150 note 149. See Nathan A. Adams, IV, supra Oregon Blue Book: Initiative, Referendum and Recall: 1972–1978 and Referendum Initiative, Book: Blue Oregon Judge Tosses Religious-Funding Question from 2012 Ballot from Question Religious-Funding Tosses Judge )9/8/2013 10:59 AM DONE ( . 1, 4 (2005), for a discussion of the history of the Florida constitutional language. language. constitutional Florida of the the history of a discussion . 1, 4 (2005), for , 14, Jun. visited (last http://bluebook.state.or.us/state/elections/elections19.htm note 1. Letter from Pam Bondi, Att’y Gen. of Fla., Office of Att’y Gen., to Hon. Kurt S. S. Kurt Hon. to Gen., Att’y of Office Fla., of Gen. Att’y Bondi, Pam from Letter EV , Dec. A3. 15, 2011, at OOK B L. R Fla. CS/HJR 1471, Deslatte, Aaron See Or. Sec’y of State, State, of Or. Sec’y CS/HJR (Fla. 2011), 1471, 2011 Leg., Sess. Reg. AUTHEN AUTHEN supra There were two proposals put to voters to revise state no-aid revise to no-aid to voters put state proposals There were two 150 151 152 thereof.” Repeals existing constitution provision which reads: “No money shall be drawn drawn shall be money “No reads: which provision constitution existing Repeals thereof.” nor institution, (sic) or of theological any religeous benefit the for thefrom Treasury either in religeous (sic) services of any payment for the appropriated be money shall any Assembly.” Legislative the of house 148 149 OVA LUE ENTINEL Blaine Amendment: Article I, Section 3 Interpreted and Implemented in Florida Education Florida in Implemented and Interpreted 3 Section I, Article Amendment: Blaine N amendment failed. failed. amendment does that although restrictive, less them made that way in a clauses measures. with both the original intention to have been not appear a of part as South Carolina proposal the 1972 Voters approved constitutional a from legislature the to recommendations of series measure in court, claiming the title and ballot language proposed by by and ballot language proposed the title claiming in court, measure misleading. was the legislature legislative proposal referenced the connection between the state’s the state’s between referenced the connection legislative proposal that noting bigotry, and anti-Catholic language Blaine amendment the aforementioned “to correct necessary was the amendment Floridians of principles and sentiments true the between disconnect application present and intentions, origins, and the discriminatory Amendment.” of the Blaine Id. http://election.dos.state.fl.us/initiatives/pdf/2012Amd_ReligiousFreedom_ATGLetter.pdf. Browning, Fla.Browning, ofFla. Sec’y State, Dep’t of (Dec. State 20, 2011), http://www.flsenate.gov/Session/Bill/2011/1471 [hereinafter Fla. CS/HJR 1471]. The the adding and sentence) third no-aid language (the the deleting proposed legislature the by required extent the to “Except clause: establishment state’s the to language following of agent any nor government the neither States Constitution, United the to First Amendment or funding, of any program, benefits or the entity individual any deny to may the government belief.” or identity basis of religious on the support other 2012, language was confusing and removed it from the ballot, but upheld but upheld ballot, the from it and removed confusing language was the attorney language to be rewritten; the for a law allowing ballot language and it appeared on the the general then revised proposals. with eleven other general election ballot B S 2166 Albany LawReview [Vol. 76.4 [Vol. LawReview 2166 Albany were voters 2012, where in in Florida was at repeal recent attempt no-aid repealing language and an amendment to approve asked based on religious discrimination prohibiting adding a sentence programs. of government administration belief in the 2141 C 2013). 2013). 33912-alb_76-4 Sheet No. 142 Side B 09/10/2013 07:04:50 09/10/2013 B 142 Side No. Sheet 33912-alb_76-4 33912-alb_76-4 Sheet No. 143 Side A 09/10/2013 07:04:50 , art. VII, OMMITTEE C (Neb.), Nov. ONST available at OMMISSION FOR .C C EB XPRESS E not owned or not owned 157 EPORT OF THE LECTION R E UPERIOR 1895, (1969)). at 101 , S INAL , art. VII, § 11 (1972)).§ VII,, art. AROLINA ONST C S.C., F to prohibiting appropriation appropriation to prohibiting .C EB 156 OUTH S ONSTITUTION OF C SSEMBLY OF .A While the measure was approved was approved by While the measure and the Legislative Council’s report on report Council’s Legislative and the 30, 1973, at 414–15 (1973), EN The ballot summary did not specifically specifically did not The ballot summary 154 159 G AROLINA C EPORT OF THE 158 UNE ,R J The then-existing no-aid clause in the state the clause in no-aid The then-existing N ’ 155 OUTH 153 S FOR THE . OMM C OMM NDING , 311 N.W.2d at 887 (quoting N N.W.2d 887 (quoting , 311 at constitution). the to change N.W.2d 887 (detailing , 311 at )9/8/2013 10:59 AM E DONE ( TUDY OF THE TUDY OF LECTION S (quoting C LenstromThone, v. 311 N.W.2d 884, 887 (Neb. N 1981) (quoting ERIOD P See See Lenstrom Lenstrom See SeeSample Ballot:General Election, November 7, 1972 Op. S.C. Att’y Gen., 1974 S.C. AG LEXIS 230 (Jan. 4, 1974) [hereinafter 1974 SC Id. S.C. E AUTHEN AUTHEN AKE A M K M The Nebraska proposal also was not put forth as a significant significant as a forth not put was also proposal The Nebraska (internal quotation marks omitted). omitted). marks quotation (internal 156 157 158 159 153 154 155 [R]ecodify, revise, and clarify provisions of Article VII of the Constitution of Nebraska. of Nebraska. Constitution the of VII of Article provisions clarify and revise, [R]ecodify, . . . . on Article the of provisions the rearrange generally will proposal this FOR vote A so as to of this State a provide for be Article Shall amended XI of the Constitution and free system school of Education, Superintendent State State of Education, Board or to religious financial aid public direct prohibit of learning, institutions public other of school election to: relating provisions to delete institutions, educational private other school funds,officers, treasurers from officers General to and county payment school districts, by school levied taxes tax, poll trustees, school enrollment, defining Assembly gifts references, related other and education higher specific races, for schools separate from income and property, escheated designated, not State to gifts education, for alcoholic beverages? C Y reference this alteration, this reference constitution prohibited both direct and indirect aid, and the and the aid, and indirect both direct prohibited constitution aid, on indirect the restriction removing proposed commission perhaps and aid students “‘to legislature the thereby allowing of types certain for institutions and private religious with contract and programs.’” training voters and the legislature subsequently ratified it as required under ratified subsequently legislature the voters and level of provide that language did not the ballot the constitution, direct prohibiting language voters approve that only asking detail, restriction the the deletion of constitutional to reference aid without aid. indirect against § (1958)). 11 2, 1972, at 4B. The question posed on the ballot did not specify this change but only referred only referred 2,specify change on 1972, did not but at 4B. ballot this the posed The question clear: more it make to clause no-aid the revise to one as proposal to the change to the no-aid clause but eventually was interpreted to be. to be. interpreted was but eventually change to the no-aid clause revision a constitutional after proposed was clause its of The rewrite no-aid language the existing changing recommended commission any aid of “in funds of public appropriation from prohibiting school” denominational or sectarian Attorney General Opinion]. Opinion]. General Attorney 2012/2013] study commission. State Constitutional No-Aid Clauses 2167 2141 C http://uselectionatlas.org/DOC/SC/Election_Report_1969-1973.pdf. ballot Carolina The South read: proposal Id. of public funds “to any school or institution” school or any “to funds of public TO THE controlled by the state. by controlled 33912-alb_76-4 Sheet No. 143 Side A 09/10/2013 07:04:50 09/10/2013 A 143 Side No. Sheet 33912-alb_76-4 33912-alb_76-4 Sheet No. 143 Side B 09/10/2013 07:04:50 , M K C Y 71–72 UIDE G However, However, The court court The 160

161 162 EFERENCE :AR ONSTITUTION C TATE S The successful 1986 South Dakota Dakota South 1986 The successful 164 ISCONSIN ISCONSIN W note 17, at 1003–04. note Two of the Wisconsin proposals—the 1967 proposals—the Wisconsin Two of the Faithful to the Constitution: The Roadblock for Nebraska’s Schools Nebraska’s for Roadblock The Constitution: the to Faithful HE 163 note 13, at 8–9. 13, at 8–9. note , T supra supra ,N.W.2d 887. 311 at )9/8/2013 10:59 AM TARK supra . 884, 897 (2000) (“In a series of cases during the 1980s, the Nebraska Nebraska cases. the 1980s, (“In a series of during the 884, 897 (2000) S That decision was the second the state supreme court the state supreme the second was That decision Dinan, EV DONE 165 ( ACK J Bacon, .L.R see also See Lenstrom Id. Shugrue, E. Richard See See unconstitutional. loan program the textbook found Court Supreme Dakota The South AUTHEN AUTHEN EB Many of the no-aid clause amendment proposals were specifically were specifically proposals amendment clause of the no-aid Many 160 161 162 163 164 165 Education into a more logical sequence and clarify the language thereof, will clarify the the will clarify thereof, language the clarify and sequence logical a more into Education of persons institutions in public education the respecting Legislature of the authority eliminate will twenty-one and and of years, five ages between the than those other language. obsolete certain and language, arrangement, present will retain the proposal this vote A AGAINST on Education. Article the of provisions nine years later, the state supreme court relied on that change to on that relied court supreme the state nine years later, financial to provide program of a constitutionality uphold the in and universities colleges private attending to students assistance Council’s the Legislative that, notwithstanding finding the state, language made the of” of the “in aid the deletion interpretation, previously. been had it than restrictive less clause Id. (1997); directed toward particular programs and intended to be court- to intended and programs particular toward directed an existing have overturned would their adoption as constraining, program a under a restrictive down striking decision state court successful most of the Indeed, clause. no-aid of the interpretation amendments of legislatively-proposed approvals were measures legislatively-enacted invalidated court supreme state the after school permitting proposal Delaware’s For example, programs. state after the the legislature by adopted was transportation the legislature’s the governor that advised court supreme violated pupils school private of transportation the of authorization clause. the no-aid amendment overturned a state supreme court decision finding that that finding decision court supreme a state overturned amendment clause, no-aid state’s the violated program loan textbook an existing ballot in the proposal’s decision the court’s even referencing language. 2168 Albany LawReview [Vol. 76.4 [Vol. LawReview 2168 Albany was not revision proposed the that noted measure the ballot of the no-aid meaning clause. to change the intended 2141 C subsequently used that interpretation to uphold other programs programs other uphold to interpretation that used subsequently text. earlier the under suspect been have would that transportation amendment and the 1972 building use amendment— building 1972 and the amendment transportation these finding decisions court supreme state overturned successfully unconstitutional. programs Supreme Court turned some of its previous jurisprudence upside down.”). down.”). upside jurisprudence previous its of some turned Court Supreme 79 N 33912-alb_76-4 Sheet No. 143 Side B 09/10/2013 07:04:50 09/10/2013 B 143 Side No. Sheet 33912-alb_76-4 33912-alb_76-4 Sheet No. 144 Side A 09/10/2013 07:04:50 167 IGURES FOR F available at EGISTRATION R In addition, the In addition, 170 372 N.W.2d second372 That at 117. , The failed Oregon 1972 The failed 171 Elbe ETURNS AND 16 (1986), R Louisiana’s 1974 constitution 1974 constitution Louisiana’s 166 LECTION at 118. E LECTION E Id. Approved constitutional changes in both in both changes constitutional Approved 168 FFICIAL ENERAL ,O . art. IX, § 5 (demonstrating that the original no-aid provision no-aid provision original the that 5 (demonstrating § . art. IX, TATE S : G ONST )9/8/2013 10:59 AM C Y OF ’ AKOTA DONE ( EC Voters ultimately rejected it. rejected Voters ultimately D DAHO S I 169 Seegers v. Parker, 241 So. 2d 213, 216 (La. 1970) (noting that the use of use that the 2d 213,public 1970) (noting 216 (La. 241 So. Parker, Seegers v. See Patterson, v.Hartness 179 S.E.2d 907, 909 (S.C. 1971) (expressing that tuition grants Epeldi Engelking, v. 867–68 (Idaho 1971). P.2d 860, 488 See Cal. Teachers Ass’n v. Riles, 632 P.2d 953, 964 (Cal. 1981) (holding that textbook loans A 1976 decision textbook voided program. a similar loan McDonald Sch.of v. Bd. AUTHEN AUTHEN M K However, numerous efforts to overturn state court decisions by by court decisions state to overturn efforts numerous However, 167 168 169 170 171 166 all to textbooks of nonsectarian loaning only the authorize to Legislature Allow the the that [previously] ruled Court Supreme South Dakota . . . The in this state. children not toof textbooks all children loaning the prevent prohibitions constitutional existing school. public attending FFICE OF C Y OUTH California 1982 textbook loan amendment rejected by voters was was voters by rejected amendment loan textbook California 1982 state the by brought an action in court, state the after proposed loan program the existing found and others, association teachers clause. no-aid violated the constitution’s removing the no-aid clause was approved after a decision striking striking a decision after approved was clause no-aid the removing for non-public schools in pay teachers to of tax funds down the use clause. no-aid previous the under subjects secular teaching program was found unconstitutional. unconstitutional. was found program considered by the court was never repealed and there remains no transportation exception in in exception transportation no remains there and repealed never was court by the considered Constitution). the Idaho funds to pay for secular instruction in religious schools violated the state’s no-aid clause). no-aidclause). state’s the violated schools religious in instruction secular for pay funds to no-aidclause). state’s the violated universities and colleges religious attending to students Yankton Indep.No. 1, 246 N.W.2d Sch. Dist. 93, 99 (S.D.1976). However, the state modifications. with the program reenacted legislature Elbe v. Yankton Indep. Sch. Dist., 372 N.W.2d 113, 118 (S.D. 1985). The N.W.2d ballot proposalElbe Dist., 113, 118 (S.D. Indep. 372 Sch. Yankton 1985). v. read: O S 2012/2013] loans. on textbook had rendered State Constitutional No-Aid Clauses overruled amendment 1972 successful Carolina’s South Similarly, program assistance a state college tuition finding an earlier decision education higher religious it benefitted because 2169 unconstitutional indirectly. institutions 2141 C http://sdsos.gov/content/html/elections/electvoterpdfs/72-86/86SDGEN.pdf. Louisiana and South Carolina extended beyond the programs struck struck programs the beyond extended Carolina South Louisiana and also proposals those so court decisions, earlier the down in of constitutionality the reviewing decisions court future preempted programs. state example, For unsuccessful. were clause no-aid the of amendment to funds public of use the permitting proposal the 1972 Idaho in proposed was schools sectarian from and to children transport previous the down handed decision court high a state to response the by enacted program transportation school that the year finding First Amendment’s the under constitutional while legislature, no-aid constitution’s the state violated Clause, Establishment clause. 33912-alb_76-4 Sheet No. 144 Side A 09/10/2013 07:04:50 09/10/2013 A 144 Side No. Sheet 33912-alb_76-4 33912-alb_76-4 Sheet No. 144 Side B 09/10/2013 07:04:50 M K 178 C Y 1975 174 overruled in part by by part in overruled proposals also would havewould also proposals 176 but the proposals also extended extended also proposals but the 173 Balancing Parental Choice, State Interest, and the thereby seeking to prevent the courts courts the prevent to seeking thereby 179 note 17, at 986. 17,note at and 1976 Missouri )9/8/2013 10:59 AM 175 supra supra Advisory Opinion re Constitutionality of 1974 PA 242, 228 N.W.2d of 1974 772, 775 re Constitutionality Advisory Opinion DONE ( The Massachusetts 1982 and 1986 proposals would have 1986 proposals and 1982 The Massachusetts Gallwey v. Grimm, 48 P.3d 274, 284, 288 (Wash. 2002) (en banc) (finding that (Wash. 2002) that (en (finding 48 P.3d banc) 274, 284, 288 Grimm, v. Gallwey 177 Dinan, , Bloom Sch. v. Springfield, Comm. of 379 N.E.2d 578, 585–86 (Mass. 1978) Paster 97, v. 104 (Mo. Tussey, 512 S.W.2d 1974) (en banc) (deciding that textbook Jackson Sheldon Coll. v. State, 599 P.2d 127, 128 n.2 1979) (discussing the (Alaska Brad J. Davidson, Comment, Weiss v. Bruno, 509 P.2d 986 (Wash. 973, 1973) (en banc), 172 ex rel. ex See See See See Dickman No. Sch. Dist. v. 366 P.2d 62C, 533, 544–45 (recognizing (Or. 1961) that E.g. See re In See AUTHEN AUTHEN Fewer efforts to amend the state’s no-aid clause have been have been clause no-aid state’s the to amend efforts Fewer 176 177 178 179 172 173 174 175 preemptive court constraining amendments—designed to prevent to prevent amendments—designed constraining court preemptive way certain in a constitution state the interpreting from the court of a program. constitutionality given the uncertainty about the overturned previous decisions as well as extended beyond their their beyond extended well as as decisions previous overturned Alaska the decision, court at a state directed not Although scope. an after was proposed the state’s voters by rejected aid amendment loan the existing program declaring general opinion attorney higher involved program The challenged unconstitutional. language was the proposed amendment but education loans, broader. language of the proposed amendment, in addition to the explanation of it that appeared on on of it that appeared explanation to in addition the amendment, of the proposed language the ballot). textbook loan programs violate the state constitution, and although the proposal in question question in proposal the although and constitution, state the violate programs loan textbook language Clause Establishment mirrored it programs, loan to textbook notwas directed programs). such permit to Court Supreme U.S. the by interpreted state’s the violated students school private to textbooks loaning programs that (deciding constitution). (Mich. 1975) (acknowledging that textbookprograms school and to supply private schools clause). no-aid state’s the violated to non-public school students violated the state constitution’s prohibition against the the against prohibition constitution’s state the violated students school to non-public schools). sectarian of support the for money of appropriation For example, the proposals in Colorado (1992) and California (1993, and California (1992) in Colorado proposals the For example, the legislatureto require or authorize to 2000) were designed programs, voucher institute 2170 Albany LawReview [Vol. 76.4 [Vol. LawReview 2170 Albany no-and repeal the language clause establishment to adopt proposal a finding decision an earlier have overruled would likely aid clause no-aid state’s the under unconstitutional program loan textbook clause. 2141 C Washington, State the violated purpose” religious substantial a having “schools for programs assistance tuition state’s no-aidv. clause); Consol. Mitchell No. Sch. Dist. P.2d 201, 79, 135 82 (Wash. 1943) clause). no-aid state’s the violated programs transportation (holding that beyond the scope of previous decisions. The 2000 Michigan, 2000 The decisions. previous of scope the beyond overturned previous court decisions applying the state’s no-aid no-aid state’s the applying decisions court previous overturned programs, loan textbook to clause loan programs no-aid violated state’s the clause); 258 S.W.2dHawkins, 927, v. McVey 933–34 education violated the of parochial(Mo. students that transportation (recognizing 1953) fund clause). 33912-alb_76-4 Sheet No. 144 Side B 09/10/2013 07:04:50 09/10/2013 B 144 Side No. Sheet 33912-alb_76-4 33912-alb_76-4 Sheet No. 145 Side A 09/10/2013 07:04:50 See ,33 In the 180 (2012), Y More ’ OL 182 , 919 So. 2d 392 .P UB strengthen aff’d but the state but the .P 181 School Vouchers and the the and Vouchers School TR C 886 So. 2d 340 (Fla. Dist. Ct. aff’g OLLINS , C That proposal also is unique is also That proposal 184 e transportation of students to and from any any from to and students of e transportation . 187, 203 (2000). EV 183 .L.R ONZ . art.§ 2. VIII, . (2002);T. 435, Vail, Jason 439–40 Comment, )9/8/2013 10:59 AM ONST , 35 G , 35 EV .C DONE Voters approved the initiative after the legislature the after initiative the approved Voters ( ICH L. R 185 Bush v. Holmes,Bush 919 So.392, 398 (Fla. 2d 2006), Bush v. Holmes,340, v. 886 So. 366 (Fla.Bush 2d Ct. Dist. App. 2004), Council for Humanism, Council McNeil, Inc. 44 So. v. Secular 3d 112, 115, 126 (Fla. Dist. M ECH 2012 Florida Amendments:2012 Florida 8 Amendment See See See See of the 8) (Article article education the to section new a approve to asked were Voters AUTHEN AUTHEN .T M K Looking at the sources of proposals, citizen initiatives limiting limiting initiatives citizen of proposals, sources at the Looking Florida’s 2012 proposal repealing the no-aid clause was designed designed was clause the no-aid repealing proposal 2012 Florida’s It should be noted that including a sentence allowing for the transportation of students of students transportation the for allowing a sentence that including noted be It should 180 181 182 183 184 185 credit public or any or paid appropriated be shall or property monies No public of the or state agency any other political subdivision or utilized, by the legislature nonpublic, other or denominational any private, maintain or aid to indirectly or directly benefit, tax credit, No payment, school. secondary or elementary, preelementary, or monies of public or loan grant subsidy, voucher, tuition deductions, or exemption of the attendance any support to or indirectly, directly shall be provided, property at any location or school at any such nonpublic person of any or employment the student school nonpublic such to orin part in whole is offered instruction where or institution th for provide may legislature The students. school. EX C Y recently, the Florida no-aid clause has been used to challenge the the challenge used to been clause has no-aid the Florida recently, providing use organizations of public money faith-based to support been resolved at the yet litigation had not but that services, social proposal. the of time 2004, the Florida District Court of Appeals relied on the no-aid relied on the no-aid Appeals Court of District 2004, the Florida that program publicly funded voucher a down strike clause to schools, non-public to attend students allowed among the thirty in that it was the sole proposal to to proposal sole the was it that in thirty the among supreme court affirmed the decision on other grounds. on other decision the affirmed court supreme http://collinscenter.org/2012flamendments/files/2012/09/Collins-Center-Amendment-8.pdf. App. 2004). Ct. App. 2010). state constitution: Id. of the transportation for provided had as the legislature of restrictions, not a loosening was amendment. of this approval the to prior years many for students parochial and private Establishment Clause: Is the First Amendment a Barrier to Improving Education for Low- for Education to Improving Barrier a Amendment First the Is Clause: Establishment Income Children? state no-aid clauses fared particularly poorly. Only one initiative one initiative Only poorly. particularly fared clauses state no-aid voters—the the 1970 nine put before the of was approved Michigan. in proposal amendment Establishment Clause: Constitutional Guidelines for States’ School-Choice Legislation School-Choice States’ for Guidelines Constitutional Clause: Establishment T 2012/2013] a such down strike to clause no-aid state’s the interpreting from State Constitutional No-Aid Clauses enacted. once program in two areas. court the supreme state by decisions to preempt 2171 2141 C (Fla. 2006). state’s no-aid clause (all of the other measures proposed since 1965 1965 since proposed measures other of the (all clause no-aid state’s no-aid state’s of the scope the or limit repeal to designed were clause). 33912-alb_76-4 Sheet No. 145 Side A 09/10/2013 07:04:50 09/10/2013 A 145 Side No. Sheet 33912-alb_76-4 33912-alb_76-4 Sheet No. 145 Side B 09/10/2013 07:04:50 M K C Y . 245, . 245, The EV 186 L. R AYNE , 18 W available at and the second was and the second 188 189 Constitutional Law Constitutional C.L. 145, 145, 146–47 (providing an argument ETROIT .U.D T .S The Michigan Voucher Proposal Would Pass a Constitutional Constitutional a Pass Would Proposal Voucher Michigan The ICH the 1970 amendment survived two initiative two initiative survived the 1970 amendment .M The Transportation of Private and Parochial School Children at Public Public at Children School Parochial and Private of The Transportation 187 Library of Michigan, Ballot 1978 General State Proposals: Election Library EV R )9/8/2013 10:59 AM . L. 259, 260 n.7 Q. (1962). For a discussion of the in legal involved issues Legislature’s Request for an Opinion on the Constitutionality of 1970 PA 100, the on Constitutionality an Opinion Request for Legislature’s EMP DONE ( ]. , 2001 L., 2001 reprinted in , 35 T , The proposal read: 1978 ballot The proposal read: 2000 ballot See In re See In D. McLellan, Richard AUTHEN AUTHEN 188 189 186 187 The proposed amendment would: would: amendment proposed The operating expenses. school taxes for of property use the 1. Prohibit of for support taxation state of general a program establish to legislature the 2. Require would: amendment constitutional proposed The through schools nonpublic attending of students support ban on1.) Eliminate indirect or grants subsidies, or deductions, exemptions benefits, tax credits, vouchers, tuition or property. monies loans of public with a in districts schools nonpublic attend to vouchers tuition use to 2.) Allow students through vouchers tuition and districts 1998–1999 approving 2/3graduation rate under in average of state to ½ limited be would voucher Each or vote. action a public board school per pupil public school revenue. nonpublic in and schools public in subjects academic on testing teacher 3.) Require vouchers. tuition redeeming schools per-pupilminimum 4.) Adjust from 1994–1995 to 2000–2001 level. funding schools. schools. to be voucher educational of an issuance the for to provide legislature the 3. Require of the school nonpublic at a public oreducation a student’s financing toward applied choice. or guardian’s parent’s student’s attempts to modify it. The first was in 1978 when a school voucher voucher a school when in 1978 The first was it. to modify attempts of use the prohibit to proposal a of part as included was proposal expenses, operating school for taxes property 180 N.W.2d 265, 273–74 1970). (Mich. Challenge Support Indirect Provide to State Permit to Constitution the Amend to Proposal 00-1: Proposal in 2000 when Michigan voters were asked to approve an initiative an initiative to approve asked were voters in 2000 when Michigan through students school nonpublic for support indirect permitting programs. of other a variety and vouchers (photo. 1978), reprint http://cdm16110.contentdm.oclc.org/cdm/ref/collection/p16110coll2/id/104524 [hereinafter H Proposal Proposal H: Proposal to Prohibit the Use of Property Taxes for School Operating Expenses and and Expenses Operating School for Taxes Property of Use the Prohibit to Proposal H: Proposal Nonpublic and Public at Students of Education Financing for System Voucher a to Establish Schools Expense William J. McKenna, 2172 Albany LawReview [Vol. 76.4 [Vol. LawReview 2172 Albany of to pay a portion used be to public funds permitting a law enacted in religious instruction in secular involved the salary of teachers as program the upheld court supreme the state and schools, clause. no-aid then-existing state’s the under constitutional 2141 C 245, 254–56 (1972). the 1970 proposal process,Leon see Cohan, S. for repeal and replacement of the 1970 amendment to permit a voucher program). to permitforrepeal replacement a amendment 1970 the of and proposal overturned that decision and further defined the types of of types the defined further and decision that overturned proposal most “the containing as a critic by Described aid prohibited. to non- of public aid in terms in the country language restrictive public schools,” 33912-alb_76-4 Sheet No. 145 Side B 09/10/2013 07:04:50 09/10/2013 B 145 Side No. Sheet 33912-alb_76-4 33912-alb_76-4 Sheet No. 146 Side A 09/10/2013 07:04:50 : HOICES C EMANDING , D available at ONOVAN D Initiatives, like many of many like Initiatives, note 103, at 127. at 127. note 103, ODD 190 &T supra supra , 191 41–42 (1998) (rejecting that most voters are well 41–42 (1998) most voters(rejecting are well that OWLER B AGLEBY The information vacuum may be filled may be filled The information vacuum HAUN 192 , S EMOCRACY D Library of Michigan, State Ballot of State Proposals: Michigan, Library 2000 General Election note 75, at 36. note 75, at 36. See, e.g. See, IRECT D note 61, at 142 (citation omitted) (“Even in politically competitive politically competitive in (“Even omitted) (citation at 142 note 61, supra supra )9/8/2013 10:59 AM AND supra , , reprinted in DONE ]. , ( ARR OTING T Magleby, Magleby, ,V See See and in initiative knowledge voter of lack the addressed have studies Numerous AUTHEN AUTHEN M K When voting on a candidate for office in a partisan election, the the election, a partisan in office for candidate When voting on a Even though citizen initiatives fared poorly, attempts to amend to amend attempts fared poorly, citizen initiatives Even though all across results than impressive less these What may explain 190 191 192 PINION C Y states, proposed amendments have often enjoyed bipartisan support.”). support.”). bipartisan enjoyed often have amendments proposed states, by the media, messages from elites, as well as information from the the from information as well as elites, from messages the media, by voter is able to rely on cues to simplify the decision, such as party party as such the decision, simplify cues to on to rely voter is able as can serve Both evaluation. candidate and affiliation process. decision-making the simplify to shortcuts informational so voters is lacking, that information measures, in ballot However, knowledge. need greater (photo. 2000), reprint http://cdm16110.contentdm.oclc.org/cdm/ref/collection/p16110coll2/id/104535 [hereinafter 00-1 Proposal O referendum campaigns. campaigns. referendum those here, often address more controversial issues and increase and increase issues controversial more address often those here, run campaigns active by may be caused This voter skepticism. to gain seeking of groups or a distrust approval initiative against proposal. the through something no-aid clauses have increasingly become initiative driven. In the driven. initiative become have increasingly no-aid clauses two legislatively there have been only years, past twenty-five The increased six initiatives. but ballot the on measures proposed of overall as a tool use increased its mirrors here use of initiative difficulty the reflects and also likely change state constitutional to legislative bodies convince to change of supporters faced by surrounding aid environment the political in amendments propose to put unwilling legislatures With vouchers. school like programs where the initiative, voters, before measures these constitutional change. But formal for alternative primary the becomes available, weapon no-aid it as a against using success have had no proponents clauses. approval high the have attributed scholars In general, proposals? fact the change to constitutional for proposals legislative for rate and are not in of governing identified problems that most deal with they Thus, change. for clamoring public of result a not as generated opposition. face organized infrequently to Students Attending Nonpublic Pre-Elementary, Elementary and Secondary Schools; Allow Allow Schools; Secondary and Elementary Pre-Elementary, Nonpublic Attending to Students Teacher of Enactment Require and Districts; School Certain in Vouchers Tuition of Use the Laws Testing 2012/2013] State Constitutional No-Aid Clauses 2173 2141 C informed of the policies being voted on); on); M voted being policies the of informed 33912-alb_76-4 Sheet No. 146 Side A 09/10/2013 07:04:50 09/10/2013 A 146 Side No. Sheet 33912-alb_76-4 33912-alb_76-4 Sheet No. 146 Side B 09/10/2013 07:04:50 . , , ., ., M K AL C Y , C OUND OUND , 78 S. F F available at Specifically, Specifically, originally published in vote). , Nov. 1, 2000, at 1C. at 1C. Nov. 2000, , 1, 200 , The opposition of The opposition no N ’ EWS 198 SS N .A DUC In the 2000 Michigan 2000 the In Proposals addressing aid aid addressing Proposals ETROIT 196 , D 193 , S.D. E OTER In the 2000 California initiative, the initiative, In the 2000 California 199 195 note 192, at 56. note 192, at 56. supra , In the 2012 campaign in Florida to repeal the In to repeal in Florida the 2012 campaign (S.D.), 14,Oct. at 16, 2004, The Effectiveness of Money in Ballot Measure Campaigns Measure Ballot in Money of Effectiveness The 197 Voucher CampaignVoucher is Costliest ONOVAN Vote No on Amendment B Amendment on No Vote &D For example, in the campaign to defeat California’s California’s defeat to campaign the in For example, )9/8/2013 10:59 AM Amendment 8 Scoreboard: Teachers Union $1 Million, $158,000 Catholics Teachers 8 Scoreboard: Amendment at 156, 160 (discussing the California Teachers’ Association in support of a in support Association Teachers’ the California at 156, 160 (discussing 194 NTERPRISE DONE ( E . 1041, 1043–44 (2005). OWLER B EV ED (Sep. 21, 2012), http://www.redefinedonline.org/2012/09/amendment-8- Mark Hornbeck, Hornbeck, Mark Jon East, Advertisement: Thomas Stratmann, See See id. see But See Introductionto California’s Ballot Measures: Proposition 38—School Vouchers See Top Ten Contributors to California Propositions:Proposition 38—School Vouchers AUTHEN AUTHEN .V .L.R vote on a school spending measure—noticeably outweighing the outweighing measure—noticeably on spending vote school a These organized and well-funded opposition campaigns can have can have campaigns opposition well-funded These organized and 197 198 199 200 193 194 195 196 ILMOT AL EDEFIN AL OTER state education groups extended beyond measures for vouchers or or vouchers for measures extended beyond groups education state the South example, For an issue. as raised were where vouchers South of Administrators School Association, Education Dakota South the 2004 opposed PTA actively Dakota South the and Dakota, services food and transportation involving proposal ballot Dakota children. school for nonpublic no-aid clause, the Public Education Defense Fund—affiliated with with Fund—affiliated Defense Education Public the clause, no-aid $1 approximately Association—contributed the Florida Education 8. Proposition to defeat campaign to the million http://www.calvoter.org/voter/elections/archive/2000/general/propositions/topten.html (last http://www.calvoter.org/voter/elections/archive/2000/general/propositions/topten.html updated 2001). May 2, voucher proposal, the Michigan Education Association supported supported Association Michigan Education the voucher proposal, with donations the initiative opposing campaign First! the All Kids $5 million. close to R yes W increased opposition spending generally leads to more negative negative more to leads generally spending opposition increased http://calvoter.org/voter/elections/archive/2000/general/propositions/analysis.html#38 (last (last http://calvoter.org/voter/elections/archive/2000/general/propositions/analysis.html#38 updated Nov. 1, 2000). V C 2174 Albany LawReview [Vol. 76.4 [Vol. LawReview 2174 Albany proposition. over the waged campaign 2141 C an impact. Research has shown that the level of campaign spending spending campaign level of the that shown has Research an impact. the outcome. affects ballot measures against scoreboard-teachers-union-1-million-catholics-158000. to religious schools oftentimes attract significant attention from from attention significant attract oftentimes schools to religious education as state such state, the in interests large and well-funded no” “vote active wage to resources the have that associations, campaigns. Proposition 174, the 1993 voucher initiative, the state teachers teachers state the voucher initiative, the 1993 174, Proposition campaign $24 million to the contributor largest the was association the measure. against waged Teachers Association contributed approximately $26 million to million to $26 approximately contributed Teachers Association defeat. its for campaign the support http://wil.stparchive.com/Archive/WIL/WIL10142004P16.php. C 33912-alb_76-4 Sheet No. 146 Side B 09/10/2013 07:04:50 09/10/2013 B 146 Side No. Sheet 33912-alb_76-4 33912-alb_76-4 Sheet No. 147 Side A 09/10/2013 07:04:50 ., ., T 204 S TATES S ECRETARY NITED 203 U , S.D. S (July 29, 2010), AL -C (Nov. 5, 2000), OLITI EEK W :P EMOCRACY IN THE D note 75, at 39–40. 75, note at HALEN USINESS IRECT , W :D supra , B 2004 Ballot Question Pamphlet note 153. at 68, 192, EGISLATORS L In the 2000 for the California campaign supra 205 , Contending Players and Strategies: Opposition Advantages in in Advantages Opposition Strategies: and Players Contending some pro-voucher groups failed to back the to back failed groups pro-voucher some 206 ITIZENS AS note 103 at 147; Magleby, note 103 ONOVAN C Prop 23 Gets Draper-ized 23 Gets Prop in , &D )9/8/2013 10:59 AM supra supra , Additionally, opponents claimed the proposal would would proposal the claimed opponents Additionally, DONE ( at 153. at 153. Opponents are able to use these resources to define the define the resources to to use these able are Opponents 207 The same relationship on spending and outcome is not not is and outcome spending on relationship The same OWLER 201 Donna DeKraai, S.D. Educ. Ass’n, Ass’n, Educ. S.D. DeKraai, Donna B 202 AGLEBY See id. See et al., Donovan Todd See Bill Whalen, Crusade Voucher Tim Draper’s M See AUTHEN AUTHEN M K The ability of opponents to create doubt and uncertainty is easier is easier and uncertainty doubt create to opponents The ability of 203 204 205 206 207 201 202 C Y http://sdsos.gov/content/viewcontent.aspx?cat=elections&pg=/elections/pastelections_electioni 14,nfo04_prosconsAGexplanations.shtm 2013). Jun. (last visited http://www.businessweek.com/stories/2000-11-05/tim-drapers-voucher-crusade. http://www.businessweek.com/stories/2000-11-05/tim-drapers-voucher-crusade. OF Initiative Elections Initiative necessarily true for proponents of measure; in fact, some scholars some fact, scholars in measure; of for proponents true necessarily a measure of sides both on spending in an increase have found that of aware more become will voters because opposition, may increase proposal. the behind are that interests special the various measure because it did not target troubled schools or low income income low or schools troubled not target did it because measure children. $4000 voucher proposal, financed in large part by a Silicon Valley Valley Silicon a by part large in financed proposal, $4000 voucher venture capitalist, For example, opponents can center a campaign on the impact of of on the impact a campaign can center opponents For example, a campaign design in the proposal, language or ambiguous vague may latch onto in a that voters the proposal of aspect around some what they around campaigns or develop race, low information South In the 2004 proposal. the of impacts be likely to believe the asserted opponents and food initiative, transportation Dakota out might be taken money that amount of the not limit did measure schools, control over local reduce would system, school of the public litigation in costly result could and mandates unfunded increase schools of nonpublic parents by filed districts school local against these services. seeking 2012/2013] voting. State Constitutional No-Aid Clauses 2175 2141 C http://whalen.wordpress.com/2010/07/29/prop-23-gets-draper-ized. issues favorable to their position and create doubt and uncertainty and uncertainty doubt create and position to their favorable issues voters so, do able to are they If proposal. the of aspect some about a new over quo status the favor and averse risk become tend will policy. 99 (Shaun Bowler et al. eds. 1998). eds. al. et 99 (Shaun Bowler cost the state billions of dollars and create voucher schools with no with no schools voucher and create dollars of billions state the cost no and teachers, for no credentials students, for standards to do in a ballot measure campaign than one with candidates, candidates, with than one campaign measure a ballot to do in the so fixed, it allows is a ballot proposal on wording because the cover.” or take move a target that cannot “at shoot to opponent 33912-alb_76-4 Sheet No. 147 Side A 09/10/2013 07:04:50 09/10/2013 A 147 Side No. Sheet 33912-alb_76-4 33912-alb_76-4 Sheet No. 147 Side B 09/10/2013 07:04:50 , , ], M K OF OF . C Y ONF (2012), OLIDARITY .C LA , S , F OLITICIANS P Like other opposition opposition other Like 212 Amendment 8 Our Opinion 8 Our Amendment ALLAHASSEE T TOP note 210 (“The proposal is not about religious religious about is not proposal note 210 (“The Many newspapers followed suit, suit, followed newspapers Many ONCLUSION , S With money, opponents could mount mount could opponents With money, C supra 211 , 208 IV. School Vouchers Scam Goes Down Goes Scam Vouchers School Indeed, one of the opponents’ slogans was, “This slogans was, one of the opponents’ Indeed, , http://www.flaccb.org/resources/archives.php Mar. 16, 2013).(last visited )9/8/2013 10:59 AM 210 (Oct. 4, 2012) [hereinafter Opponents countered that, regardless what supporters what that, regardless supporters Opponents countered 209 DONE ( ISHOPS Amendment 8 Our Opinion 8 Our Amendment ERALD B , H Louise Cooper, Cooper, Louise See Sheet Fact Non-Discrimination & Freedom Religious for on 8 Yes Schools Religious Fund to Attempt Blatant No on this Vote 8 Our Opinion: Amendment 8 Amendment No On Vote E.g. AUTHEN AUTHEN The most recent campaign in Florida involved opponents opponents involved in Florida campaign The most recent Ridding state constitutions of no-aid clauses through formal formal through clauses no-aid of constitutions state Ridding 208 209 210 211 212 IAMI ATHOLIC freedom at all, but rather a blatant attempt to use public money to finance private religious religious private attempt to public use to finance freedomrather money a blatant at all, but institutions.”). claimed, the amendment was intended to allow the government to to government the to allow intended was the amendment claimed, religious a to be claiming any group to dollars tax provide organization. campaigns, it was designed to tap into voters’ preferences for the preferences the for voters’ to tap into designed was it campaigns, measure. the defeating in succeeded It uncertainty. over quo status http://www.miamiherald.com/2012/10/04/3034879/amendment-8-our-opinion-vote-no.html. November, don’t don’t be fooled.” November, http://stoptallypoliticians.com/amd8. http://stoptallypoliticians.com/amd8. opposing the measure by claiming the proposal, although not although not claiming the proposal, by the measure opposing to system a voucher to create was intended vouchers, mentioning schools. religious to funds public provide M C 2176 Albany LawReview [Vol. 76.4 [Vol. LawReview 2176 Albany to taxpayers. accountability 2141 C http://www.solidarity-us.org/site/node/1531 (last visited Jun. 14, Jun. http://www.solidarity-us.org/site/node/15312013). visited (last an opposition campaign around messages like these to raise doubt doubt raise to these like messages around campaign an opposition electorate. the among and uncertainty non- including no-aid language and that repealing asserting freedom” “religious for proposal a not was language discrimination state another toward step was the first but as it was entitled was that it claimed of the measure Proponents voucher program. end religious and freedom religious to protect designed service social administering groups religious against discrimination programs. constitutional change mechanisms has not fared well over recent recent well over fared not has mechanisms change constitutional a no-aid of repeal successful one only been has There decades. clauses state no-aid involving measures constitutional Most clause. authorize to constitution the state on amending have focused or that court the statesupreme by down struck programs these of Most enacted. if down be struck might believed proponents the were ones that and voters, by not approved were proposals a invalidating to overturn a court decision sought approved usually 33912-alb_76-4 Sheet No. 147 Side B 09/10/2013 07:04:50 09/10/2013 B 147 Side No. Sheet 33912-alb_76-4 33912-alb_76-4 Sheet No. 148 Side A 09/10/2013 07:04:50 213 )9/8/2013 10:59 AM Table 1. Table 1. DONE ( See supra AUTHEN AUTHEN M K The success rate of amendments to no-aid clauses put on the on the put clauses to no-aid of amendments rate The success proposed is clauses no-aid of amendment the whether Indeed, 213 C Y 2012/2013] legislative of rate success the Overall, program. legislative State Constitutional No-Aid Clauses were over one-third no-aid clauses—just amending proposals legislatively that of than lower significantly voters—is by approved subjects. all across amendments constitutional proposed faced Voters lower. even was process the initiative through ballot no-aid of restrictions the 1965 lessening since 2177 eight initiatives and approved. were none schools, to religious applied as clauses the state’s strengthened in Michigan, approved initiative, The only face generally initiatives most constitutional While no-aid clause. up when going difficult more even is it approval, for an uphill battle the was as opposition, and well-organized a well-funded against less no-aid clause the to make proposals the of case in most restrictive. these the ability of the legislature, by or through initiative and doubt raise to resources use their to groups opposition for hurdles difficult create will electorate the among uncertainty for campaigns in future to overcome clauses no-aid of opponents rejected change. overwhelmingly Voters constitutional formal of support of public types fundamental the involving proposals opposition— most the to generate likely that are schools religious and materials, instructional and textbooks aid, other vouchers or less become campaigns Until opposition transportation. student likely appear not does that something organized, less or well-funded may be better served clauses of no-aid critics the in the near future, constitutional of state methods formal less on their efforts focusing change. 2141 C 33912-alb_76-4 Sheet No. 148 Side A 09/10/2013 07:04:50 09/10/2013 A 148 Side No. Sheet 33912-alb_76-4 33912-alb_76-4 Sheet No. 148 Side B 09/10/2013 07:04:50 , M K C Y IGHTS R 7 sec. 2 sec. 2 No-Aid No-Aid Art. 189 IX, sec. 8 Clause(s) Clause(s) Art. I, sec. 4 4 sec. I, Art. Art. 1, sec. 6 6 sec. 1, Art. Art. 1, sec. 3 3 sec. 1, Art. Art. X, sec. 1 1 sec. X, Art. 3 sec. X, Art. Art. X, sec. 3 3 sec. X, Art. Art. IX, sec. 5 5 sec. IX, Art. Art. I, sec. 16, 16, sec. I, Art. Art. V, sec. 34 34 sec. V, Art. Art. IX, sec. 8, 7, sec. IX, Art. Art. VII, sec. 2 Art. VII, sec. 1 Art. 6, sec. 6(c) 6(c) sec. 6, Art. Art. II, sec. 12, 10 sec. IX, Art. Art. XVI, sec. 5 5 sec. XVI, Art. Art. XIII, sec. 2 Art. X, sec. 6 (1) (1) 6 sec. X, Art. Art. I, sec. 7, Art. Art. I, sec. 2, par. Art. XIV, sec. 263 263 sec. XIV, Art. Amend. Art. CIII, Art. VIII, sec. 208 NDIVIDUAL I 214 ITIGATING Rts. Rts. Rts. Rts. Rts. :L Art. VII Art. I, sec 4 Compelled Compelled Art. I, sec. 3 3 sec. I, Art. 3 sec. I, Art. 4 sec. I, Art. 6 sec. I, Art. Art. I, sec. 3 3 sec. I, Art. 1 sec. I, Art. AW Art. I, sec . 4 Art. sec. II, 4 Art. I, sec. 16 16 sec. I, Art. Art. 24 II, sec L Sec. 7 in Dec.of Sec. 5 in Dec.of Art. 36 in Dec. of of in Dec. 36 Art. Support Clause Clause Support Rts. Rts. Rts. ONSTITUTIONAL Clause Clause Art. VII C APPENDIX A Art. I, sec. 3 3 sec. I, Art. 4 sec. I, Art. 3 sec. I, Art. 7 sec. I, Art. Art. I, sec. 3 3 sec. I, Art. 4 sec. I, Art. 1 sec. I, Art. Art. 1, sec. 4 4 sec. 1, Art. Art. sec. II, 4 Art. I, sec. 16 16 sec. I, Art. Art. II, sec. 24 Sec. 7 in Bill of Bill Sec. 7 in of Bill Sec. 5 in Art. III, sec. 18 Amend. Art. XI No Preference No Preference TATE , App. 4A2-8 (1992) )9/8/2013 10:59 AM Religion Clauses in State Constitutions Art. 36 Art. I, sec 4 Art. I, sec. 3 3 sec. I, Art. 8 sec. I, Art. Art. I, sec. 3 3 sec. I, Art. 4 sec. I, Art. Art. I, sec. 3 3 sec. I, Art. 4 sec. I, Art. Art. II, sec. 5 EFENSES DONE Federal Model ( D Appendix A was compiled based on a review state constitutions by the author and and author the by constitutions state a review on based compiled A was Appendix AUTHEN AUTHEN IL IA ID IN HI HI MI FL FL AZ KS LA CT AL AR CA KY CO DE GA AK MS MT MT ME MA MO MD MN 214 State State LAIMS AND Jennifer Friesen and a review Friesen and a review JenniferS C 2178 Albany LawReview [Vol. 76.4 [Vol. LawReview 2178 Albany 2141 C 33912-alb_76-4 Sheet No. 148 Side B 09/10/2013 07:04:50 09/10/2013 B 148 Side No. Sheet 33912-alb_76-4 33912-alb_76-4 Sheet No. 149 Side A 09/10/2013 07:04:50 Second Second No-Aid No-Aid X, sec. 9 VII, sec. 5 Clause(s) Art. I, sec. 5 5 sec. I, Art. Art. 83, Part Part 83, Art. Art. 6, Sec. 2 2 Sec. 6, Art. Art. I, sec. 11 11 sec. I, Art. 18 sec. I, Art. Art. 5 Sec. II, Art. XI, sec. 4 4 sec. XI, Art. Art. 3, sec. 36 36 sec. 3, Art. Art. XI, Sec. 3 3 Sec. XI, Art. 15 Sec. 3, Art. Art. 1, sec. 19, 19, sec. 1, Art. Art. VI, sec. 3, Art. 11, sec. 10 10 sec. 11, Art. Art. IV, sec. 16 Art. XII, Sec. 3 3 Sec. XII, Art. Art. VII, sec.11 Art. VIII, Sec. 5 Art. VIII, sec. 16 Art. I, sec. 7, Art. Art. I, sec. 4, Art. Ch. 1, art.3 Compelled Compelled Art. I, sec. 3 3 sec. I, Art. 3 sec. I, Art. 6 sec. I, Art. Art. I, sec. 4 4 sec. I, Art. 3 sec. I, Art. 7 sec. I, Art. Art. I, sec. 3 Art. I, sec. 16 16 sec. I, Art. 18 sec. I, Art. Art. VI, sec. 3 Art. II, sec. 11 Art. sec. III, 15 Art. 6, Part First First Part 6, Art. Support Clause Support Clause Art. I, sec. 3 3 sec. I, Art. 6 sec. I, Art. Art. I, sec. 4 4 sec. I, Art. 4 sec. I, Art. 4 sec. I, Art. 3 sec. I, Art. 3 sec. I, Art. 7 sec. I, Art. 3 sec. I, Art. Art. I, sec. 16 16 sec. I, Art. 18 sec. I, Art. 18 sec. I, Art. Art. VI, sec. 3 Art. II, sec. 11 Art. sec. III, 15 No Preference No Preference Art. 6, Part First First Part 6, Art. )9/8/2013 10:59 AM Art. I, sec. 4 4 sec. I, Art. Art. I, sec. 2 2 sec. I, Art. DONE Federal Model ( AUTHEN AUTHEN M K RI SC TX TX NJ NJ VT WI PA PA SD VA UT UT OR TN NE NE NV NY NC OK ND ND OH OH NH NH WY WY WA WA WV NM NM State C Y 2012/2013] State Constitutional No-Aid Clauses 2179 2141 C 33912-alb_76-4 Sheet No. 149 Side A 09/10/2013 07:04:50 09/10/2013 A 149 Side No. Sheet 33912-alb_76-4 33912-alb_76-4 Sheet No. 149 Side B 09/10/2013 07:04:50 M K C Y l of the State State l of the ut who attend ut who attend type basis to pupils entitled entitled to pupils basis type ecause of race or color. color. or race of ecause which do not exclude pupils notwhich do exclude pupils Ballot Summary/Question Summary/Question Ballot eted for support of public schools; and that that and schools; public of support eted for 1965-2012 1965-2012 APPENDIX B Authorizes Legislature to provide that textbooks that textbooks to provide Authorizes Legislature may schools public attending pupils to available library- on be loaned b schools to attend public schools nonpublic b from enrollment budg an appropriation is not so providing textbooks for school support. This is a proposal to amend Article VII, Section to Section VII, Article a proposal This amend is to State of Alaska of the 1 of the Constitution direct provide to used be to funds public allow tuition equalization and aid such as scholarships private educational attending grants to students Genera The Attorney institutions. of Alaska has interpreted Article VII, Section 1 1 Section VII, Article interpreted has of Alaska reads, to prohibit it now of as the Constitution, grants equalization giving tuition the State from or colleges private attending to students in State. the universities Specifies that authorizing a textbook loan loan textbook a that authorizing Specifies as authorizing not construed be program shall than other materials of instructional provision the that appropriations textbook textbooks; for funds from made be not shall program loan 215 (L) State Support of Religious Schools No. 4 (L) No. 4 (L) Proposition Proposition Measure Proposition 9 Proposition )9/8/2013 10:59 AM DONE ( Proposed Amendments to No-Aid Clauses Affecting 1982 1982 1976 1976 Year AUTHEN AUTHEN The letter in parenthesis after the measure designates whether it was proposed by the by the proposed was it whether designates measure the after parenthesis in letter The CA AK legislature (L), through initiative (I), or by a constitutional convention (C). convention constitutional a or (I), by initiative (L), through legislature 215 2180 Albany LawReview [Vol. 76.4 [Vol. LawReview 2180 Albany State 2141 C 33912-alb_76-4 Sheet No. 149 Side B 09/10/2013 07:04:50 09/10/2013 B 149 Side No. Sheet 33912-alb_76-4 33912-alb_76-4 Sheet No. 150 Side A 09/10/2013 07:04:50 age age pupil pupil schools schools esources 12 public schools. schools. 12 public shall be counted for for be counted shall composite test scores of of scores test composite of vouchers; authorizing the the authorizing of vouchers; e to establish procedures procedures establish e to enacted constitutional funding funding enacted constitutional government, and home schools; and and home schools; and government, redeeming schools. Vouchers may be Vouchers may be redeeming schools. Voucher schools. redeeming phased in over phased in four Restricts over and state years. to meet schools private to require authority local state academic standards, including safety, health, requirements. future Limits schools. on private restrictions zoning, building General Assembly to similarly apportion local and funds purposes for educational taxes raised appropriated existing for categorical services; apportionments ofobject such providing that the that said the extent to only purposes attendance of the district school the by provided are services child's residence? priority for public schools (Proposition 98) with 98) with forpriority public schools (Proposition providing that, with respect to any share of a property base, local school cost to the charged student for whom is used a voucher for Requires release of release Requires current voter- per- national on based formula minimum measure. of this terms by defined as average, to the Colorado amendment an be there Shall moneys state all that requiring Constitution appropriated for of the general support and secondary elementary, kindergarten, among Colorado apportioned education be the form students in r educational of afford choice is to (public), non- services educational Amends California Constitution to enable enable to Constitution Amends California parentsschool by requiring to choose a child's State to provide a voucher for every school- year per pupilK- spending for Legislatur Requires voucher- voucher- of at least state payments Authorizes annual religious and private for pupil $4000 per child equal to at least 50 percent of prior fiscal fiscal of prior 50 percent at least to equal child voucher pupils. Permits Legislature to replace voucher Legislature to replace pupils. Permits redeemed by such schools and by qualifying qualifying by and schools such by redeemed academic required Authorizes schools. private and of private new regulation testing. Limits count toward savings specified expenditures and minimum constitutional education's existing funding guarantee. available in Colorado, including government government including Colorado, in available whereby public schools may become independent independent become schools may whereby public (I) (I) (I) (I) 174 (I) 174 (I) Proposition Proposition Amendment 7 Amendment )9/8/2013 10:59 AM Proposition 38 Proposition DONE ( 1992 1992 2000 2000 1993 1993 AUTHEN AUTHEN M K CA CA CO C Y 2012/2013] State Constitutional No-Aid Clauses 2181 2141 C 33912-alb_76-4 Sheet No. 150 Side A 09/10/2013 07:04:50 09/10/2013 A 150 Side No. Sheet 33912-alb_76-4 33912-alb_76-4 Sheet No. 150 Side B 09/10/2013 07:04:50 M K an an C Y public public hibiting hibiting public schools schools public nt to the United nt to the United based educational educational based e tax years beginning student public school school public student schools, including those those including schools, public schools beyond that that beyond schools public eregulatory their education role over the income tax credit for parents or legal guardians guardians parents credit or tax legal income for schools; prohibiting the state or any political political or any state the schools; prohibiting to this section using from thereof subdivision expenditures as a result of the measure or as a a as or of the measure as a result expenditures and 1, 1998; January on existent and exercised tax credit income the for eligibility eliminating children send who guardians legal or of parents of children in non- of children to certain non-public to an amendment Proposing Freedom. Religious no that providing theState Constitution basis on the denied, may be or entity individual governmental belief, or identity of religious or support,other exceptbenefits, funding as required by the Amendme First of the Constitution of IX, 5, Article Section Shall to sectarian relating Idaho, the state of to provideappropriations, that amended be school to support be made may appropriations programs? transportation of the the adoption OPPOSE or FAVOR you Do proposed 1974 Constitution? An amendment to the constitution of the state of of state the of constitution the to An amendment of establishment the concerning Colorado non- in public, enrolled of children home- and non-public incom tax creditincome for the entire credit; of pro costs such in reductions current per- to non- students of the transfer of result increas that illegally discriminate on the basis of race, of race, the basis on discriminate that illegally teach or origin or national color ethnicity, hatred. programs, and, in connection therewith, in connection therewith, programs, and, an to establish Assembly the General requiring determining for methods the in 1999; specifying priorities establishing of such credit; the amount an establishing credit; such for eligibility for offset to used to be fund opportunity educational States Constitution, and deleting the prohibition the prohibition deleting and States Constitution, treasury the public from revenues using against directly or indirectlyof any church,aid sect, in any of aid in or denomination religious or sectarian institution. (L) (L) (C) 1974 17 (I) 17 (I) Proposed Proposed Amendment Constitution Constitution Amendment 8 Amendment 4 Amendment )9/8/2013 10:59 AM DONE ( 1974 1974 2012 2012 1972 1998 1998 AUTHEN AUTHEN ID ID FL LA CO 2182 Albany LawReview [Vol. 76.4 [Vol. LawReview 2182 Albany 2141 C 33912-alb_76-4 Sheet No. 150 Side B 09/10/2013 07:04:50 09/10/2013 B 150 Side No. Sheet 33912-alb_76-4 33912-alb_76-4 Sheet No. 151 Side A 09/10/2013 07:04:50 s. secondary schools. schools. secondary xercise of religion re either publicly owned owned publicly either re aws imposing conditionsor restrictions on the and prohibits the establishment of religion. of religion. and prohibits the establishment request to have would pupils Third, individual to In addition services. or materials the aid, amendment the limitations, specific these three other to enact legislature thewould authorize l The services. or materials aid, of public grant state the change also would proposal to moneybe spent to public to allow Constitution religious or charitable hospitals, aid infirmaries, a undertakings if they amendment would The proposed constitutional private for funds of public expenditure the allow students. It would school and private schools the from schools and secondary primary remove from barred institutions of non-public list public allow would and aid public receiving student school to a non-public provided if that school does but such aid, only requesting to provided services or materials, on aid, limits The proposed constitutional amendment would amendment would The proposed constitutional prohibition constitutional remove the present or funds to aid of public against the use or primary private maintain limitation specific three to subject, however, e free the guarantees which money, property, or loans of credit to be used for for used credit to be of or loans money, property, schools. those or aiding founding, maintaining, allow also would amendment The proposed be to services or materials aid, public financial on requirements its entrance in not discriminate the basisof race, color, nationalorigin, religious state The handicap. physical or sex, belief, impose power to have the legislature would students. students. First, the private school could not be one that that not be one could school the private First, discriminates on the race basis of or color in its of the grant Second, requirements. admission with the First aid must be consistent Constitution States Amendment to the United It would permit the Commonwealth, cities and and cities Commonwealth, It would permit the to pupils available public funds towns to make schools secondary and primary private attending services or materials aid, either of form in the or under the control of public officials. The state spending nowConstitution unless prohibits such and owned publicly are both these institutions officials. of public under the control 1 (L) Question Question 2 (L) )9/8/2013 10:59 AM DONE ( 1986 1986 1982 1982 AUTHEN AUTHEN M K C Y MA MA 2012/2013] State Constitutional No-Aid Clauses 2183 2141 C 33912-alb_76-4 Sheet No. 151 Side A 09/10/2013 07:04:50 09/10/2013 A 151 Side No. Sheet 33912-alb_76-4 33912-alb_76-4 Sheet No. 151 Side B 09/10/2013 07:04:50 M K ies ies C Y 2001 2001 e student's ard action or a public action or a public ard legislature to establish establish to legislature ublic school students. The The students. school ublic pupil public school pupil public revenue. 3) elementary, elementary, or or elementary, elementary, state directly or indirectly to aid or or indirectly directly or to aid state 1999 and districts approving tuition tuition approving districts and 1999 maintain any private, denominational or other other or denominational private, any maintain parent's or guardian's choice. choice. parent's or guardian's legislature may provide for the transportation of of the transportation for provide may legislature any school.’ and from students to secondary school. No payment, credit, tax tuition or deductions, exemption benefit, in subjects on academic testing teacher Require schools nonpublic and in schools public 4) Adjust minimum vouchers. redeeming tuition expenses; 2) require the the 2) require expenses; th of school nonpublic or at a public would: amendment The proposed constitutional support of students on indirect ban 1) Eliminate throughschools tuition attending nonpublic or exemptions vouchers, credits, tax benefits, of public loans or grants subsidies, deductions, students to use or 2) Allow property. monies schools in tuition nonpublic to attend vouchers in 2/3 rate under graduation a with districts 1998- vouchers bo through school state average per- 2000- to 1994-1995 from per-pupil funding Authorizes enactment of laws providing 1) services 2) nonreligious for the handicapped; and for all public 3) transportation textbooks; school secondary and elementary nonpublic Proposed Amendment. Article 8, Section 2: ‘No 8, Section2: ‘No Article Amendment. Proposed appropriated be shall property or monies public the by utilized, credit public any or paid or or subdivision political any other or legislature agency of the pre-nonpublic, mon ofvoucher, or grant public loan subsidy, or in part to such nonp the 1) prohibit would amendment The proposed operating for school taxes use of property level. level. a program of general state taxation for support support for taxation state of general a program to provide the legislature 3) require of schools; be to voucher educational an of issuance for the student's education financing a applied toward of ½ to be limited vote. would Each voucher children. or property shall be provided, directly or or directly provided, be or shall property indirectly, to support the attendance of any any any person at of student or the employment at any location or school or such nonpublic in whole offered is instruction where institution (I) (I) No. 10 (I) No. 10 (I) Amendment Proposal 1 (I) 1 (I) Proposal Proposition C Proposition Proposal H (I) H (I) Proposal )9/8/2013 10:59 AM Constitutional Constitutional DONE ( 1976 1976 2000 2000 1978 1978 1970 1970 AUTHEN AUTHEN MI MI MI MI MI MI MO MO 2184 Albany LawReview [Vol. 76.4 [Vol. LawReview 2184 Albany 2141 C 33912-alb_76-4 Sheet No. 151 Side B 09/10/2013 07:04:50 09/10/2013 B 151 Side No. Sheet 33912-alb_76-4 33912-alb_76-4 Sheet No. 152 Side A 09/10/2013 07:04:50 approved approved he public he public c) or theological theological or c) one years, and will and will one years, nd provisions of the of the provisions nd for education outside public public for education outside Legislative Assembly shall make no no make shall Assembly Legislative to make grants forto make the grants benefit of law respecting the establishment of religion, or or of religion, establishment the respecting law Repeals thereof.' exercise free the prohibiting which existing reads: provision constitution 'No for Treasury the drawn from be the moneyshall students enrolled in nonpublic schools as schools as nonpublic in students enrolled that of their tuition for the part reimbursement school district which the student resides nor nor the student resides which district school the breach of reimbursement any plan shall required by the church and state separation of of the Constitution theFirst Amendment to United States. institution, nor shall any money be appropriated be appropriated any money shall nor institution, in services for the payment of any religeous (sic) courses, which reimbursement shall not exceed exceed not shall courses, reimbursement which Article onArticle Education. schools, tax credit the ages of five and twenty- the ages of five arrangement, language, a to permit contracting amendment Constitutional controlled or owned wholly not institutions with for subdivision or any political by the state nonsectarian handicapped serviceschildren. for by adopted newShall the proposed Constitution, and the Convention, the Constitutional approved? be same, the submitting Resolution as provide to Amends Constitution Oregon the 'The follows: (si of any religeous benefit Assembly. of the Legislative either house choiceShould provide of the public Constitution Constitutional amendment authorizing authorizing amendment Constitutional transportation services for children attending school. secondary or any elementary the to permit amendment Constitutional Legislature in state- to instruction is allocable cost in t one-third of student the per Article of provisions Recodify, revise and clarify A vote FOR Nebraska. of Constitution VII of the this proposal will generally rearrange the a into Education on Article of the provisions the language and clarify sequence logical more of the authority the clarify will thereof, public education in the respecting Legislature than between of other those institutions persons limit certain obsolete language. A vote vote A language. obsolete certain limit present retain the will proposal this AGAINST schools, voter approval of certain education certain of schools, approval education voter laws? 4 (L) 1 (C) 11 (I) 11 (I) No. 6 (L) No. 6 (L) No. 6a (L) No. 6a (L) No. 10 (L) No. 10 (L) No. 12 (L) No. 12 (L) Amendment Amendment Amendment Amendment Measure No. No. Measure Measure No. No. Measure Question No. )9/8/2013 10:59 AM DONE ( 1990 1990 1976 1976 1967 1972 1972 1972 1966 1966 1970 AUTHEN AUTHEN M K OR OR NE NY NE NE NE C Y 2012/2013] State Constitutional No-Aid Clauses 2185 2141 C 33912-alb_76-4 Sheet No. 152 Side A 09/10/2013 07:04:50 09/10/2013 A 152 Side No. Sheet 33912-alb_76-4 33912-alb_76-4 Sheet No. 152 Side B 09/10/2013 07:04:50 M K C Y constitutional torney General's hool age, including including hool age, ers from school funds, funds, school from ers The Constitution generally generally Constitution The sectarian schools. A vote “Yes”sectarian will schools. prohibitions prevent the loaning of textbooks to to of textbooks loaning the prevent prohibitions school. public not attending all children previously that existing that existing previously 3, of section the provisions Notwithstanding the VIII, Article 16, section and VI Article of loaning the authorize may Legislature the authorize may and textbooks nonsectarian services and food transportation participation in At age. of school children for Explanation: sc of children textbooks to attending to amended be Constitution Shall Washington's of students for assistance governmental permit all the by limited institutions educational federal constitution? Shall Article XI of the Constitution of this State State of this Constitution of the XI Shall Article of Board a State for to provide as so amended be Education, of Education, Superintendent State institutions public and other system school free aid to financial public direct prohibit of learning, religiousprivate educational or other to: relating provisions to delete institutions, payment officers to officers, of school election and county treasur of loaning the authorize to Allow legislature childrennonsectarian to all textbooks in state. The South Dakota Supreme Court ruled those attending sectarian schools. Amendment Amendment schools. sectarian attending those to the Constitution B, if adopted, change would to authorize Legislature the allow also services foodparticipation transportation in and those including age, of school children for change the Constitution. A vote “No” will leave leave will “No” A vote the Constitution. change it is. as the Constitution General Assembly defining enrollment, school school enrollment, defining General Assembly by school districts, taxes levied tax, poll trustees, higher specific races, for schools separate education other and related references, gifts for not designated, gifts to State education, alcoholic from income and property, escheated beverages? prohibits the Legislature from giving state state giving from Legislature the prohibits schools. to sectarian property or money the allows However, Constitution the of nonsectarian loan the authorize to Legislature (L) (L) No. 6 (L) No. 6 (L) No. 19 (L) No. 19 (L) Resolution Resolution House Joint Amendment )9/8/2013 10:59 AM Constitutional Constitutional Amendment C Constitutional Amendment B DONE ( 1975 1975 1986 1986 2004 1972 1972 AUTHEN AUTHEN SC SD SD WA WA 2186 Albany LawReview [Vol. 76.4 [Vol. LawReview 2186 Albany 2141 C 33912-alb_76-4 Sheet No. 152 Side B 09/10/2013 07:04:50 09/10/2013 B 152 Side No. Sheet 33912-alb_76-4 33912-alb_76-4 Sheet No. 153 Side A 09/10/2013 07:04:50 Shall Section 23 of article I of the constitution be be the constitution of I article of 23 Shall Section for provide may legislature so that the created by providing children of and welfare the safety for the transportation of to and from children learning? be constitution the of I article of 24 Shall Section to law by the legislature permitting created by school buildings of public use the authorize the be constitution of X article 3 of Shall Section authorize to legislature the to permit amended regular pupils during school of public the release of religious purpose the for hours school schools? public the outside instruction civic, religious, or charitable organizations organizations charitable or religious, civic, upon of payment hours during nonschool the use? for compensation reasonable any parochial or private school or institution of of institution or school private or any parochial Question 4(L) Question 7 (L) Question 3 (L) )9/8/2013 10:59 AM DONE ( 1972 1972 1967 1967 1972 AUTHEN AUTHEN M K WI WI WI WI WI C Y 2012/2013] State Constitutional No-Aid Clauses 2187 2141 C 33912-alb_76-4 Sheet No. 153 Side A 09/10/2013 07:04:50 09/10/2013 A 153 Side No. Sheet 33912-alb_76-4 33912-alb_76-4 Sheet No. 153 Side B 09/10/2013 07:04:50 M K C Y 33912-alb_76-4 Sheet No. 153 Side B 09/10/2013 07:04:50 09/10/2013 B 153 Side No. Sheet 33912-alb_76-4