Federal lawsuit filed to determine constitutionality of Kansas' Convention of States 2/3 requirement
Article/COS and Government
A federal lawsuit to reverse the ruling for a two-thirds majority requirement to pass a Convention of States (COS) application has been filed by plaintiffs Rep. Michael Murphy (R-Kingman, Reno, and Rice Counties) and Sen. Mike Thompson (R-Johnson County). The lawsuit, filed on December 22, 2023, will decide if the two-thirds majority requirement is constitutional.
“Attorney General Schmidt had given an opinion that he felt like the requirement for the two-thirds in the Kansas Constitution may not be constitutional because it puts the burden on the legislators that was not intended by the founders of the U.S. Constitution. That’s why we explored this route,” Rep. Murphy told The Kansas Constitutional over the phone.
In other states, a simple majority from the House and Senate is needed to pass a COS application per Article V of the U.S. Constitution. However, in Kansas, a two-thirds majority is required due to a 1974 change known as the ‘Roe Rule’.
The defendants include Speaker of the House Dan Hawkins (R-Sedgwick County) and Senate President Ty Masterson (R-Butler and Sedgwick Counties). While both defendants have previously voted in favor of passing the COS application, there is a difference in interpretation of which constitution to follow.
“While I support the Convention of States, I also swore an oath to uphold the Kansas Constitution,” Speaker Hawkins said in a statement to The Kansas Constitutional via email. “There’s an interesting legal question here and that’s something the courts will have to sort out.”
All four members of the Kansas Legislature are acting to uphold the Kansas and U.S. Constitutions, but it will be the decision of the Court to decide whose interpretations are correct.
“There is a clear conflict between the Kansas Constitution and the stated procedures in the Federal Constitution with regard to calling an Article V convention that needs to be resolved,” Sen. Thompson told The Kansas Constitutional via email. “The Kansas Constitution creates a requirement for simply calling for an Article V convention that is tantamount to ratifying an amendment to the constitution. In fact, the Kansas Constitution singles out the application for an Article V convention for reasons that escape logic. The process of considering constitutional amendments should not be as burdensome as the actual ratification process, and the Kansas Constitution, in my opinion, imposes a limitation on our ability to simply consider changes to the U.S. Constitution through an Article V convention. This conflict in interpretations has impeded our ability to apply for an Article V convention even though a majority of the state legislature has voted to do so. I hope this lawsuit clears up the confusion and leads to a clear and uniform rule in our state constitution.”
Convention of States Kansas, the nonpartisan, grassroots activist organization pushing for a COS application, posted to social media that while they agree with the plaintiffs they are not a part of the lawsuit.
Should the Court agree that the two-thirds majority is unconstitutional, Kansas can become the 20th state of 34 needed states to pass a COS application to propose amendments to the U.S. Constitution that may do the following:
Impose fiscal restraints on the federal government
Limit the power and jurisdiction of the federal government
Term limits on Congress and federal officials
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I believe the 2/3 requirement is Constitutional and will be upheld. Article V of the U.S. Constitution clearly states that a 2/3 vote is required of both Houses to propose amendments and 3/4 of the State's are required for ratification.
The problem in Kansas is our lawmakers lack the knowledge and the will to pass an Article V resolution. I have personally spoken with Rep. Awerskamp at a town hall and was amazed that he had no knowledge of how an Article V convention was to be structured or implemented when Article 14 of the Kansas Constitution clearly sets the parameters for such an action. Let's say a resolution is passed in 2024, Kansas would be the 20th state to join the Convention. It requires 34 states to bring a national Convention. At the rate of 1 or 2 states a year it will take another decade or more before it becomes a reality. This country cannot wait for what is no guarantee of changing anything.
What's needed is more people to get involved and form petition groups to recall elected servants who can't or refuse to do the will of the people. The Declaration of Independence in paragraph 2 and Section 20 of the Bill of Rights in the Kansas Constitution reinforces the power of the people to remove or replace a tyrannical government. We the people must exercise our rights under common or natural law to protect ourselves, our state and this country from a government that will not.
Joe May
Mayetta,Ks