Explanation

Of the more than twenty states with some form of the popular initiative, only four–Florida, Montana, North Dakota, and South Dakota–have an explicit provision stating that the popular initiative can be used to call a constitutional convention, thus bypassing the legislature. In the others, it is arguably an implied power of the popular initiative. In the words of a guide published by Alaska’s Legislative Affairs Agency:

By implication, the voters as well as the legislature can call a constitutional convention at any time. This is because the voters can do by initiative what the legislature can do, unless they are explicitly barred by the constitution, and calling a convention by initiative is not prohibited in Article I, Section 7. (See Harrison, Gordon, Alaska’s Constitution: A Citizen’s Guide, Fifth Edition, Alaska Legislative Affairs Agency, 2021, p. 206.)

Only Missouri and Michigan have used this implied power to convene a convention.  Both did so by specifying a convention referendum date and system of election for convention delegates.  For a brief explanation, see Snider, J.H., “Rauner’s best route may be constitutional convention,” State Journal-Register, December 27, 2015.

In practice, this power of the initiative is not utilized in either the U.S. or other countries with the iniative because the interest groups with the resources to place an initiative on the ballot prefer the control that the initiative gives them over the proposal placed on the ballot. They also believe that an initiative directly dealing with their issue will be less expensive. In contrast, a constitutional convention grants proposal power to delegates, and it is prohibitively expensive for an intersest group to even attempt to meaningfully control the election of delegates to a convention.

In J.H. Snider’ judgment, the most realistic and best use of the initiative is to improve on the delegate selection process; for example, to use open primaries and ranked choice voting to elect delegates, just as Alaska uses such electoral methods to select state legislators.

One-Step vs. Two-Step Implied Power

It has been argued that the implied power to call a constitutional convention via initiative can be exercised via one of two basic processes:  a one-step or two-step constitutional convention popular initiative.  Through a one-step process, the initiative is used to call a constitutional convention directly.

Through a two-step process, the initiative is used to call a constitutional convention indirectly.  The two-step process consists of 1) passing an initiative to change the constitutional initiative article to include a provision for directly calling a constitutional convention, and then 2) directly calling a constitutional convention through the initiative. Both initiatives for steps 1) and 2) could presumably be placed on the same ballot.  

For most states, the authorities have had little to say about whether a one- or two-step process is legal and whether a constitutional convention can legally or meaningfully be called with either process.  Nevertheless, the general consensus is that in at least some states the right to call a constitutional convention via the initiative is an implied power.

Practical Considerations

Even when calling a constitutional convention via the initiative is an implied power, that power may be restricted in such a way that it is impractical. For example, if the initiative cannot be used to pay for convention expenses, it may not be practical to call one.

Most people who want to use the initiative to bypass the legislature have a specific public policy goal and see merely additional risk and expense in calling a state constitutional convention.  The types of activities for which a constitutional convention is best suited–general democratic reform focused on public goods–are those where the public tends to be most indifferent because the impact on them is most indirect and hard to understand.

Another reason for preferring conventional uses of the popular initiative over the calling of a constitutional convention is that wherever either a one- or two-step procedure were used, it would undoubtedly be subject to litigation by parties opposed to calling a convention.  In contrast, the law of using the conventional popular initiative is usually well-settled for most narrowly targeted purposes.

Legal Arguments

Marked on the map are: a) states with an explicit provision to call a state constitutional convention via the initiative, and b) states with the initiative but no explicit provision to call a state constitutional convention via the initiative.   This simple categorization may evolve on this website as new legal considerations come to light.  

The legal question in b) states is whether calling a constitutional convention via the initiative is an implied power of the sovereign people.   Although it might at first glance appear that only the constitutional initiative could be used to call a constitutional convention, this is not necessarily the case.   Legal authorities have argued that just as many legislatures have claimed an inalienable right to call a constitutional convention even if such a procedure isn’t specified in their state constitution, the sovereign people should have a similar right when using the statutory initiative to call a constitutional convention.  

John Hempelmann  appears to be the leading legal theorist on the one-step constitutional convention popular initiative.  He develops his argument in the context of Washington State but includes references to other states.  See Hempelmann, John W. “Convening a Constitutional Convention in Washington through the Use of the Popular Initiative.” Washington Law Review 45 (1970): 535.

Steven Miller appears to be the leading legal theorist on the two-step constitutional convention popular initiative.  He develops his argument in the context of California.  See Miller, Steven. “Getting to a Citizens’ Constitutional Convention: Legal Questions (without Answers) Concerning the People’s Ability to Reform California’s Government through a Constitutional Convention.” Loyola Law Review 44 (2010): 545.

For an argument that the popular sovereign has an inherent right to the constitutional initiative–and by extension, the right to call a constitutional convention–even without an explicit constitutional initiative provision in a constitution, such as is missing in Article V of the U.S. Constitution, see Amar, Akhil. “The Consent of the Governed: Constitutional Amendment outside Article V.”  Columbia Law Review 94 (March 1994):457-508.