That’s the question a recent opinion from the Attorney General of Kansas seeks to answer.

In 1974, the Kansas Constitution was amended to require 2/3 consent of each house of the state legislature to ratify any federal constitutional amendment. The federal Constitution, however, simply provides that an amendment is ratified by “three fourths” of the “Legislatures” of the several states. It places no conditions on how a state legislature goes about ratifying it.

The opinion concludes that the “the Kansas Constitution cannot impose a supermajority voting requirement on the Legislature’s decision to ratify a proposed amendment.” This ties to an understanding that the power to ratify is reserved to the state legislature under the federal Constitution, and the state constitution cannot add conditions to the state legislature’s political process when it is acting pursuant to the federal Constitution. Each legislature chooses its own threshold.

This is, of course, not what the Supreme Court concluded in a different context of the term “legislature.” In Arizona State Legislature v. Arizona Independent Redistricting Commission, the Supreme Court concluded that the term “legislature” in the Elections Clause did not give the state legislature the power to ignore a state constitutional amendment about how redistricting takes place. Adopting a “functional” understanding of the term “legislature,” in this context, at least, the legislature was bound by the state constitution.

I think the Kansas Attorney General opinion is likely right—and, I think, it may well be consistent with the Court’s approach in Arizona State Legislature. For more, dig into the opinion!