"Nota Bene" means "note this well" or "take particular notice." We at the O'Quinn Law Library will be posting tips on legal research techniques and resources, developments in the world of legal information, happenings at the Law Library, and legal news reports that deserve your particular attention. We look forward to sharing our thoughts and findings and to hearing from you.

N.B: Make a note to visit "Nota Bene" regularly.

-Spencer L. Simons, former Director, O'Quinn Law Library and Associate Professor of Law



Wednesday, March 20, 2013

Why Do Some States Even Have Governors?

Recently, the state of Arkansas made headlines across the nation when they overrode a governor's veto to enact the tightest abortion restrictions in the country (at that time). Most of the news, deservedly so, focused on the content of the new act. What caught my eye, however, was how easy it was for the Arkansas legislature to override a veto: a mere simple majority of both houses is required!

If that's all it takes, why even involve a governor in the process?!

But Arkansas isn't alone. Five other states do not require at least three-fifths of each house to override a veto: Alabama, Indiana, Kentucky, Tennessee, and West Virginia. All of these require simply a majority of those elected in each house to override a veto. To be fair, although most states require at least three-fifths of legislators elected to override a veto, several states require two-thirds or three-fifths of the members present to do so, which, when coupled with a quorum requirement of a majority of those elected, means that a veto theoretically could be overridden with the approval of as little as one-third (plus one) of the elected legislature. But these states that require a simple majority of those elected in each house to override a veto (with the exception of Kentucky), also require a simple majority of those elected in each house to pass a bill to begin with! (Kentucky requires a majority of those present, provided that that majority is at least two-fifths of the number elected, in order to pass a bill (see Ky. Const. sec. 46), so requiring a majority of those elected to override a veto theoretically can make a difference.)

Now to be exact, the Arkansas Constitution requires "a majority of the whole number elected" of each house to override a veto (see Ark. Const. art. 6, sec. 15). But section 22 of Article 5 of the Arkansas Constitution states that, before being sent to the governor for his consideration, "no bill shall [be passed] unless . . . a majority of each house be recorded thereon as voting in its favor." The question becomes: Is the "majority" mentioned in Art. 5, sec. 22, a majority of those present or of those elected? According to the Supreme Court of Arkansas, this section requires a majority of those elected (see Smith v. Ridgeview Baptist Church, 514 S.W.2d 717, 718 (1974)). In other words, just like all of the other states that require a simple majority to override a veto (with the exception of Kentucky), that number needed to override is the exact same number required to pass a bill in the first place!

On paper, as the title of this post suggests, the presence of an executive in the legislative process seems superfluous in these states. One would think that, if 50% plus 1 of each house of a state's legislature is needed to pass a bill, and the same number is needed to override a veto, then a governor's veto should never be successful. But that is not the case. In Arkansas, Governor Mike Beebe, since taking office in 2007, has issued eleven vetoes (not counting one line item veto). Of those vetoes, only the two most recent ones involving extreme restrictions on abortion rights (HB 1037 and SB 134) were overridden by the legislature, and even then, both bills lost votes between the two stages!

I guess it's due to the fickle nature of politics that these states maintain an executive presence in the legislative process.

No comments:

Post a Comment