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News analysis

No, Republicans don’t control enough states to change the Constitution (but it’s close)

Donald Trump in New York after winning the election last week.
Donald Trump in New York after winning the election last week. Jessica Rinaldi/Globe Staff/Globe Staff

Here’s how dominant Republicans are at the state level: There is serious discussion about whether they may have enough power to unilaterally amend the US Constitution.

Conservatives have plenty of constitutional tweaks on their wish lists, but at least one took center stage this year: during the Republican presidential primary, President-elect Donald Trump and others suggested eliminating birthright citizenship, which would require changes to the 14th Amendment.

It turns out Republicans don’t actually have enough numbers to change the 14th Amendment (or any other) on their own. But they’re surprisingly close to taking being able to take some of the first steps, a fact that underscores their strength at every level of governance. As I wrote last year, constitutional amendments are so difficult to pass, they are often only spurred by war, crises, or death.

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With help from Cornell Law School professor Josh Chafetz — my go-to resource on constitutional law — let’s break down what one party would need to do to go about changing the Constitution, and why Republicans are close, but not quite there.

Option 1: Start with Congress, take it to the states

There are actually two ways to change the Constitution that are written into Article V. The most common way (in fact the only way it’s been done so far) is to start by having Congress pass a constitutional amendment.

Our founders made this one of the most difficult things to do in all of governing.

What they need: A two-thirds supermajority in both chambers of Congress has to agree to it.

What they have: Republicans control both chambers of Congress, but they don’t have a supermajority. Republicans would need to control 290 seats out of the 435 if they were going to pass a constitutional amendment without any Democratic help. With some races still outstanding, Republicans currently control 239.

In the Senate, Republicans are even further from the two-thirds line. Republicans would need to control 67 seats; in January they’ll control just 51.

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For the sake of argument, let’s pretend a constitutional amendment somehow got through Congress. Then it goes to the states, where there are two options to ratify it (state legislatures can do it, or states can convene a ratifying convention), but both require three-quarters of states to agree to it.

Republicans need 38 states to make either of those things happen.

Some results are still outstanding, but it looks like Republicans will start 2017 with majority control of the entire state legislature in 33 states. (We’re including Nebraska’s legislature, which is technically nonpartisan but practically Republican, in this count.)

That’s a pick up from 2016, when Republicans controlled both chambers of the legislature in 30 states. But it’s just shy of what they’d need to ratify a constitutional amendment without any Democratic help.

Option 2: Let the states do it via a constitutional convention

If Option 1 is difficult, Option 2 appears impossible: Convening a constitutional convention. My colleague Philip Bump goes into more detail here on how the process would work, but essentially it’s a way for the states to go around Congress and change the Constitution themselves.

It’s actually never happened before (though there have been groups out there trying to promote the idea.) As Chafetz points out, in part because it’s never happened, the rules are hazy on what could even be talked about. What we do know is that it would require two-thirds of states to call a convention to even propose an amendment.

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Here, Republicans come their closest to being able to get the ball rolling on their own: They control both chambers in 33 states, just shy of the 34 needed.

Even before Nov. 8, Republicans controlled more state legislative chambers (and governorships) than at any time since the Great Depression. With this election, they cemented their dominance. According to population calculations by the conservative group Americans for Tax Reform, that translates to roughly 80 percent of the population living in a state either all or partially controlled by Republicans.

But it’s so difficult to change our Constitution, even that isn’t enough.