On Nov. 8, New Hampshire voters will be asked whether they want to call a state constitutional convention—a question automatically placed on the ballot every 10 years. Since New Hampshire approved its current constitution in 1784, voters have approved calling a constitutional convention 15 times, including 10 times during the 20th century.
The democratic function of this referendum is to prevent the legislature from having monopoly power over the proposing of constitutional amendments. This is important because the legislature has a conflict of interest in proposing constitutional changes that would reduce its own power. As one prominent New Hampshire lawyer explained the function of this referendum: “Suffice it to say that one of the reasons that we do not place the fate of the constitution exclusively in the hands of the legislature is that it has a conflict of interest in this area. The legislature’s own powers and structure are themselves defined by the constitution and any amendment which diminishes that body’s authority is not likely to be favored by our elected representatives.”
Twenty-four states allow the people to bypass the legislature via the ballot initiative, but New Hampshire isn’t one of them. Its only available bypass mechanism is its periodic constitutional convention referendum. The framers of New Hampshire’s constitution believed this was a better bypass mechanism than a ballot initiative based on citizen-petitions because it entails greater public deliberation at the proposal stage of the lawmaking process, thus granting less proposal power to private political actors.
A legislature’s conflict of interest regarding constitutional amendment includes the allocation of power among the competing branches of government, the design of information and election systems affecting its members’ reelection, and the powers retained by the people.
But most voters aren’t satisfied with such abstractions; they want concrete tasks for a convention before voting to call one. So, here’s one proposal that the legislature won’t implement even though it has proven popular after voters have had an opportunity to deliberate and vote on it.
The proposal is a top-four primary election with ranked-choice voting in the general election for state offices. Via a ballot initiative, Alaska approved such an electoral system in 2020; neighboring Maine approved the ranked-choice voting part in 2016.
The top-four primary would replace New Hampshire’s separate partisan ballots with one ballot with a party ID next to each candidate’s name. The top four vote-getters, regardless of their party affiliation, would be placed on the general election ballot. Instead of only two meaningful choices in the general election, voters get up to four.
The top-four primary makes the general election, with its much larger and more representative voters, the key election candidates must win. Currently, with many districts overwhelmingly either Democratic or Republican, the primary election determines who wins the general election because the other party has little chance of winning in the general election. New Hampshire’s last mid-term primary in 2018 had a 23.7 percent turnout whereas its general election had a 57.5 percent turnout, so 243.6 percent more voters voted in the general election than the primary.
Candidates sometimes win New Hampshire primaries with less than 20 percent of the vote—which translates into less than 5 percent of registered voters. If one wanted to design a less representative system for electing state legislators, it’s hard to imagine what it would be. The resulting ideologically extreme legislators hinder legislative compromise, which is necessary for government to work effectively.
With ranked-choice voting in the general election, voters rank candidates in order of preference. After each round of counting, the candidate with the least votes is eliminated and the voter’s next choice is counted instead. This process repeats itself until one candidate receives more than 50 percent support.
Ranked-choice voting in the general election prevents a candidate from winning with less than 50 percent voter support. It also allows voters to choose candidates based on their sincere preferences rather than a candidate’s electability.
Incumbent legislators generally hate this type of electoral system because it both changes the electoral system that got them elected and greatly increases voter choice and thus electoral competition. That’s why when such a system is adopted at a state level it must be done via a legislative bypass mechanism. For example, year after year ranked-choice voting bills die in New Hampshire’s legislature. This year there were three such bills.
The Nov. 8 constitutional convention referendum is the latest iteration of a 230-year-old New Hampshire tradition worthy of continued reverence and serious, thoughtful consideration. Such consideration should include a general sense that New Hampshire’s current governing institutions are flawed in a way the legislature has inadequate incentive to discuss and fix.
