Reforming the Delaware Constitution Amendment Process for True Democratic Representation

The Delaware State Constitution currently allows amendments to be made through a unique process controlled by just one branch of government: the Legislature. This system, which has been in place since 1776 with minor changes that already make it easier than originally intituted, raises serious concerns about democratic representation and the balance of power, especially when the legislature is controlled by a near supermajority of one party.

Originally in 1776 it took a 5/7 majority in both houses in two consecutive sessions which was reduced in subsequent Constitutions to 3/4 majority and then down to the current 2/3 majority in both houses. Delaware has never required a public vote on amendments.

A recent proposal, HB440, seeks to change this by allowing amendments to be ratified by 55% of voters. Interestingly, 55% of Delaware’s registered voters live in New Castle County, which raises questions about fairness and regional influence. This blog post explores why the current amendment process falls short of true democratic principles and offers a proposal for a more inclusive and balanced ratification system.

The Current Amendment Process and Its Limitations

Delaware’s constitution can be amended if a majority of the Legislature approves the change in two consecutive sessions and is published in 3 newspapers in each county by the Secretary of State. This process excludes direct voter participation, which is unusual for a foundational legal document. The people’s role is limited to electing or re-electing legislators who may or may not prioritize constitutional amendments during campaigns. This setup creates several problems:

• Concentration of Power: Only the legislative and executive branches control constitutional changes, sidelining the judiciary and local governments.

• Lack of Direct Consent: The amendment process bypasses the “consent of the governed,” a core principle of the American as well as the Delaware republic.

• Potential for Power Expansion: The Legislature could increase their own authority without meaningful checks.

  
  

This process does not reflect the horizontal separation of powers or the vertical division between state and local governments. It risks undermining the democratic foundation of Delaware’s governance.

Why 55% Voter Ratification Raises Concerns

HB440 proposes lowering the voter threshold for ratifying amendments to 55%. While this might seem like a step toward more public involvement, it coincides with the fact that 55% of Delaware’s registered voters reside in New Castle County. This demographic concentration could skew amendment outcomes in favor of one region, potentially marginalizing Kent and Sussex counties.

This raises important questions:

• Does a small majority in capable of coming from just one populous county justify statewide constitutional changes?

• How can Delaware ensure that amendments reflect the interests of all regions fairly?

• Is a 55% threshold truly representative of a broad consensus?

  
  

These questions highlight the need for a ratification process that balances regional interests and includes multiple levels of government and the public.

A Proposal for a Proper Ratification Process

To restore democratic legitimacy and balance, a new ratification process should involve all branches of government, local authorities, and the people directly. The following steps outline a more inclusive approach:

1. Legislative Approval: A proposed amendment must pass with a two-thirds majority in both chambers of the Legislature, either in a single session or two consecutive sessions. This higher threshold ensures broad legislative support.

   
   

2. County Council Ratification: Each of Delaware’s three County Councils must approve the amendment by a three-fifths majority. This step gives local governments a direct voice in constitutional changes.

   
   

3. Municipal Approval: The three largest municipalities by population in each county must each vote on the amendment through their city or town councils, requiring a three-fifths majority. This inclusion recognizes the role of local communities.

   
   

4. Countywide Referendum: The final step is a countywide referendum in each county, where voters decide on the amendment’s exact language by a simple majority. This ensures the people have the ultimate say.

   
   

This process distributes power across different government levels and the electorate, creating a system of checks and balances that respects Delaware’s diverse population.

Benefits of the Proposed Ratification Process

The suggested process offers several advantages:

• Enhanced Democratic Participation: Voters directly approve amendments, not just their representatives.

• Balanced Regional Influence: Each county and major municipality has a say, preventing dominance by any single area.

• Stronger Checks and Balances: Multiple government levels must agree, reducing the risk of power grabs.

• Clear Amendment Language: Voters see the exact wording, promoting informed decisions.

  
  

For example, if an amendment affects education funding, local governments and voters in all counties can weigh in, ensuring the change reflects statewide needs rather than regional preferences.

Addressing Potential Challenges

Implementing this process requires careful planning:

• Coordination Among Governments: County and municipal councils must work together efficiently.

• Voter Education: Clear communication about amendment language and implications is essential.

• Avoiding Deadlock: Mechanisms to resolve disagreements between counties or municipalities may be necessary.

  
  

Despite these challenges, the benefits of a fair and transparent amendment process outweigh the complexities.

Moving Toward a More Democratic Delaware Constitution

Reforming Delaware’s amendment process is crucial for maintaining trust and integrity in government and protecting the rights of all citizens. HB440’s proposal to lower the voter threshold to 55% raises valid concerns about regional fairness. Instead, a ratification system involving legislative supermajorities, local government approval, and direct voter referendums offers a stronger model.

Delawareans deserve a constitution that reflects their collective will, not just the decisions of just one branch of government especially when it is controlled by one political party. By adopting a more inclusive amendment process, Delaware can strengthen its republic and ensure that constitutional changes have broad, balanced support.