A section of the Kansas Constitution requiring a 2/3 majority in the House and Senate to call for a Convention of States has been ruled unconstitutional as it violates Article V of the U.S. Constitution.
A Convention of States is one of two methods to ratify an amendment to the U.S. Constitution. We’re familiar with the first; when two-thirds of the U.S. House and Senate approve an amendment, and three-quarters of the state legislatures vote to add it to the Constitution. A Convention of States differs in that state legislatures, not the U.S. Congress, approve the calling of a convention, when 2/3 of them (34) approve. When the convention approves an amendment, and 3/4 (38) of state legislatures agree, it is added to the U.S. Constitution.
According to the Convention of States website:
“Our convention would only allow the states to discuss amendments that limit the power and jurisdiction of the federal government, impose fiscal restraints, and place term limits on federal officials.”
Sens. Thompson and Murphy, who was a state representative when their suit was filed in 2024, argued the Kansas Constitution placed an undue burden on the question of approving, or calling, a Convention of States by requiring a 2/3 majority in each house of the Kansas Legislature, citing first, the text of Article V of the U.S. Constitution:
The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.
Then Article II, Section 13 of the Kansas Constitution:
A majority of the members then elected (or appointed) and qualified of each house, voting in the affirmative, shall be necessary to pass any bill. Two-thirds (2/3) of the members then elected (or appointed) and qualified in each house, voting in the affirmative, shall be necessary to ratify any amendment to the Constitution of the United States or to make any application for Congress to call a convention for proposing amendments to the Constitution of the United States.”
U.S. District Judge Toby Crouse agreed with the legislators, citing in his decision that the 2/3 requirement for the Kansas Legislature was added to the original 1861 state constitution in 1974, and no such requirement is included in Article V, which imposes the 2/3 majority on each house of Congress, but not individual state legislatures.
Senators comment on Convention of States ruling
Sen. Thompson hailed the decision:
“I was grateful the court affirmed our belief that the 1974 change to the Kansas Constitution was erroneous. The founders of this country provided Article V of the United States Constitution as a means to empower states to exercise their 10th Amendment rights…something that was seriously impaired with the passage of the 17th Amendment. Our ask was to simply join with other states who wanted to start the conversation about whether or not an amendment to the US Constitution is prudent. The courts correctly held that a legislature requesting to initiate such a conversation should not be impaired by a more onerous requirement than that which exists in Article V. The Kansas Constitution created a superfluous barrier to that process. Thankfully, this opinion provides the clarity and proof that the Kansas Constitution needs to be corrected, and to pave the way forward to join the list of states that wish to consider options for reigning in a federal government that is incapable of controlling the national debt, preventing overreach into individual liberty, and averting Congressional careers from becoming interminable.”
In his statement to The Sentinel, Sen. Murphy said he went from being a Convention of States opponent to a supporter:
“Several years ago, I heard about the Conventions of States Project, and what little I knew about it, it scared me and I was immediately against the idea. I contacted David Schneider to visit with him, and in the meantime, I researched Article V, how and why it came about, the pros and cons. By the time we met, the evidence had changed my mind. I became a “District Captain” whose job it was to meet with my Representative and Senator and convince them to vote yes on the resolution. The first time, it was Rep Thimesch and Senator Berger, and they both voted yes when the opportunity arrived.
“Of course, the failure due to the 2/3 clause in our state constitution was a terrible frustration; in fact at the time the House rules also included a 2/3 requirement. Research into the 2/3 requirement added in 1974 raised more questions than it answered. It was added quietly in the post-Roe v. Wade era amid fears by some of a national Right to Life amendment via Article V. It passed the legislature without public debate or hearing with the voters approving a lengthy multipage proposal that ‘barely fit on a newspaper page.’
“When the idea of a lawsuit was brought up, I immediately wanted to be a part of it. After my election to the 114th House District, I’d been a strong supporter as a representative, and I was anxious to take it to the next step. Some suggested it might not be the best move politically, but I don’t make decisions with elections in mind. In reality, when I ran for Senate last year, my history of support for Article V efforts was a strong net positive. An Article V convention would be very popular in my district, where about 4,000 have signed a petition and over 50,000 Kansans have signed it.”
