New bill would give Delawareans vote on constitutional changes  

Why Should Delaware Care? 
Delaware is currently the only state where residents do not vote on proposed constitutional amendments. A new bill could give voters the final say, while also shortening the legislative timeline.   

A new bill could change how Delaware’s Constitution is amended, letting voters decide the fate of proposed constitutional changes. 

Introduced last month by House Majority Leader Kerri Evelyn-Harris (D-Dover), House Bill 440 would shift the power to pass constitutional amendments from lawmakers to voters via a public ballot. If passed, Delaware would join the rest of the union in having voters decide on constitutional changes.

Currently, proposed constitutional amendments must receive a two-thirds vote by the legislature in two consecutive sessions of the General Assembly — sessions that are separated by an election. 

House Bill 440 calls for a single two-thirds supermajority vote in both the House and Senate, followed by a statewide referendum that would require 55% voter approval.

But Harris’ bill comes at an interesting political juncture for Delaware Democrats.

Senate Democrats currently hold a two-thirds supermajority, and their House counterparts could also soon hold that same power. Should House Democrats gain just one seat during this fall’s general election, the party would have the power to amend the state’s constitution without any bipartisan support.

So Harris’ bill, in effect, could remove a strategic political maneuver from Democrats’ potential playbook. 

“Some people might say that it’s not strategic,” Harris said. “I come from a different standpoint, which is what would you want to happen if you weren’t in power?”

But the legislation, as it is currently written, would not cede Democratic political power entirely. If a proposed amendment were to fail to receive 55% of a referendum vote, it could then be reconsidered by the General Assembly, and potentially enacted without voter approval. 

Harris told Spotlight Delaware she included that provision in case a referendum loses by a slim margin, or the public shows more interest in it after the fact. She described the second legislative vote as a “failsafe,” but also a chance to garner more public input.   

House Bill 440, technically itself a proposed constitutional amendment, would need to be passed once before June 30, and again during the next General Assembly in order to become law. 

Republicans express reservations

Harris’ bill has yet to be heard in committee, but it has already drawn scrutiny from some Republican lawmakers.

Critics of the bill, like Rep. Bryan Shupe (R-Milford), warned the current two-stage process prevents impulsive changes to the constitution by temporary legislative majorities. 

While Shupe told Spotlight Delaware he would vote against the bill, he said he is “not opposed to adding the referendum process,” and thinks it would be beneficial to look at a referendum process moving forward. 

Shupe’s biggest concern is shortening the timeline to pass a constitutional amendment and the threshold from a two-thirds supermajority in the General Assembly to 55% of the public, he said.

“We’re not talking about normal legislation here, we’re talking about the foundational constitutional principles that hold up all of legislation,” he said. 

As for the 55% threshold, Harris said she saw it as a midway between a simple majority where a small minority could sway the vote and a 60% supermajority, which she said could be a more challenging target for voter turnout.  

In a May 27 episode of “For The Record,” a podcast produced by the Delaware State Senate Republican Caucus, Senate Minority Whip Brian Pettyjohn (R-Georgetown) also said he “didn’t mind putting the question to voters.” However, he’d like to see the bar raised from 55% of voters to 60%.

Pettyjohn also described the part of the bill that sends the proposed amendment back to the General Assembly if the referendum does not pass as “a direct slap in the face to the will of the people.”

But Harris defended that provision of the bill.

“If the General Assembly overturns the will of the voters, the people in the General Assembly are going to have to have something to answer for, and that will be a big deal,” Harris said.  

Delaware has strictest procedure

While Delaware stands alone as the only state in the country that does not include a referendum vote, its current system — a supermajority requirement in two consecutive General Assemblies —  may make it one of the strictest states to amend its constitution, said Quinn Yeargain, a Michigan State University professor who studies law and democracy.

Neighboring states like Pennsylvania and Virginia both require a bill to pass two legislatures, but they only need a simple majority. 

In New Jersey, an amendment can pass if it receives a three-fifths vote in a single legislative session, or a simple majority in both the House and Senate during two legislative sessions. 

While Harris’s bill would make Delaware’s constitutional process consistent with other states by adding a referendum, Yeargain also said changing the requirement from two sessions of the General Assembly to one would bring Delaware in line with other states.  

Other constitutional debates 

A separate bill that would change the way lawmakers notify the public about proposed constitutional amendments, House Bill 321, drew criticism from last month as a blow to government transparency. 

Harris said she had been drafting HB 440 for a while, and had originally intended to release it at a later time. After the outcry over HB 321, however, she felt it was the right time to introduce the bill.  

House Bill 321, which would no longer require the state to notify the public about proposed constitutional amendments in print newspapers, passed the House on April 21.

Harris said HB 321, which passed the House in April, is no longer being considered in the Senate. 

She said that bill was not intended to make people uncomfortable, and was rather a modernization effort. But after the reactions to the bill and anxieties about transparency, “it felt like the right time to drop it.” 

After the reactions to HB 321, Harris described HB 440 as an affirmation that the party had no intention to hide proposed constitutional amendments from the public. 

Rather, she said, lawmakers want voters to participate in the process.

House Bill 440 has until Jun. 30 — just 10 working days for lawmakers — to receive a supermajority vote from the House and Senate. Still, if it passes, the bill would have to make it through the second leg of the General Assembly under Delaware’s current constitutional amendment system.