SC Article XVI Legislative-Referral Pathway — The Two-Thirds Threshold

Last verified: May 2026

The Article XVI Three-Step Process

Under Article XVI, §§ 1–3 of the South Carolina Constitution, amending the Constitution requires three sequential steps:

1. Two-thirds supermajority in each chamber. A proposed amendment must be approved by at least two-thirds of the members of each chamber of the General Assembly during one legislative session. In practice, this means at least 82 votes in the 124-seat House and at least 30 votes in the 46-seat Senate. The governor’s signature is not required — the General Assembly is the sole gatekeeper at this stage.
2. Voter approval at the next general election. The amendment is then placed on the ballot at the next general election for state representatives. A simple majority of voters must approve. Constitutional amendments do not have to clear the 60% supermajority threshold that applies in some other states (Florida, for instance, requires 60%); SC requires a simple majority of voters.
3. Legislative ratification. If voters approve, the General Assembly must ratify the amendment again — this time only by simple majority in each chamber — before it becomes part of the Constitution. This step is typically a formality but is structurally required.

The two-thirds first step has been the binding constraint on cannabis policy. The Senate has come close on the Compassionate Care Act (28–15 in 2022, 24–19 in 2024 — both well below the 30-vote bar); the House has not approached the 82-vote bar at any point.

The 28–15 Senate Vote in Context

The 28–15 February 9–10, 2022 Senate passage of S.150 was a historic moment — the first time either chamber of the South Carolina General Assembly had passed a medical-cannabis bill. But for Article XVI purposes, 28 votes in a 46-member Senate is short of the 30-vote two-thirds threshold by two votes. A constitutional referral would have required two more Senate votes than Sen. Davis was able to secure on a peak-attention floor vote. The 2024 vote (24–19) on S.423 was further still from the supermajority bar. The structural lesson: even in the chamber where Sen. Davis has built the strongest reform coalition, the Article XVI threshold remains out of reach. See 2022 origination clause page.

Why the Two-Thirds Threshold Matters Here

Sen. Davis has pursued the statutory path — the Compassionate Care Act — precisely because it requires only majority votes (24 in the Senate, 63 in the House) rather than the two-thirds supermajority needed for constitutional referral. The statutory path bypasses Article XVI entirely. The downside of the statutory path is that it is more vulnerable to procedural challenge (the 2022 origination-clause kill demonstrated this) and that it cannot bind future legislatures: a future General Assembly could repeal a Compassionate Care Act by majority vote. A constitutional amendment, by contrast, would be far more durable — but the supermajority bar makes it currently unreachable.

The 56-Amendment Historical Record

Constitutional amendments have been placed on the South Carolina ballot 56 times between 1985 and 2022, with 47 approved and 9 defeated. The historical record shows that the General Assembly does periodically refer amendments — on tax policy, gambling regulation, court structure, eminent domain, voter eligibility, and similar institutional questions — and that referred amendments tend to pass. The 84% voter-approval rate (47 of 56) reflects the General Assembly’s general filtering function: amendments that the legislature is willing to refer have typically been carefully drafted to secure broad support, and voters have generally approved them. The 9 defeats are concentrated in a narrow set of contested policy areas.

Cannabis has never been on the SC ballot. The 2022 advisory-referendum proposal (S.268) on medical cannabis did not advance. The 2024 ballot included one constitutional amendment on voter eligibility; cannabis was not on the ballot. See no citizen initiative page.

What an Article XVI Cannabis Amendment Could Do

If the General Assembly chose to refer a cannabis amendment, the substantive options range widely:

• Medical-cannabis constitutional authority. An amendment authorizing the General Assembly to enact a medical-cannabis program by statute, with constitutional enumeration of program structure (qualifying conditions, dispensary count, vertical-integration rules, pharmacist-dispensing model). This would lock the program at constitutional level rather than statutory level.
• Adult-use authority. An amendment authorizing the General Assembly to enact an adult-use program. Politically more difficult but constitutionally identical in structure.
• Direct constitutional regulation. Some states (Colorado, Florida) have enacted detailed cannabis programs at constitutional level via ballot measures, with the program text included verbatim in the constitution. SC has not historically used this approach for any policy area; the General Assembly prefers to keep substantive regulation at statutory level.
• Limited authorization. An amendment authorizing only Julian’s-Law-style narrow CBD-oil access, or only specific qualifying conditions, providing a constitutional floor below which the General Assembly cannot retreat.

Why an Amendment Has Not Been Referred

Several reasons explain the General Assembly’s unwillingness to refer a cannabis amendment despite sustained voter support:

• The two-thirds threshold itself. Even if 80% of South Carolinians support medical cannabis, two-thirds of legislators in each chamber must agree to refer. The House has not been close.
• Republican-caucus opposition. The House Family Caucus under Rep. McCravy and the broader Republican-caucus posture have foreclosed two-thirds support. See opposition coalition page.
• Speaker Smith’s vote count. House Speaker Murrell Smith (R-Sumter) has consistently signaled that the bill lacks Republican-caucus support. A constitutional referral would require Republican-caucus support an order of magnitude beyond what the statutory path requires. See Speaker Smith page.
• Sen. Davis’s strategic preference. Sen. Davis has consistently pursued the statutory path because it is procedurally easier. Reform-coalition energy has not been redirected toward an Article XVI strategy.
• The advisory-referendum precedent. The 2022 S.268 advisory-referendum effort did not advance, suggesting that even non-binding voter-input mechanisms face institutional resistance.

The Realistic 2027+ Window

If the 2025–26 session ends without medical-cannabis enactment — and as of May 5, 2026, three days before sine die, this is the overwhelmingly likely outcome — reform strategy will turn to the 2027–28 session under a new governor. The 2026 SC gubernatorial election is open (McMaster term-limited); the GOP primary includes Lt. Gov. Pamela Evette and others, with cannabis posture being parsed carefully. See McMaster + 2026 race page.

The 2027–28 session may produce one of three reform pathways:

• Statutory enactment. Sen. Davis, if still in office, retries the Compassionate Care Act with a new House composition; majority votes secure passage. This remains the most likely reform path.
• Article XVI referral on a narrowly drafted medical-cannabis amendment. If federal preemption pressure (DOJ Schedule III rescheduling, November 12, 2026 federal hemp cliff) creates political space, a constitutional referral could become procedurally feasible. The two-thirds threshold remains the binding constraint.
• Federal-mirror schedule change without state-program enactment. Under § 44-53-160(c), the federal Schedule III change may trigger an SC schedule change without any General Assembly vote. This does not legalize cannabis but reduces some criminal penalty exposure. See federal rescheduling page.

Comparison to Other Non-Initiative States

Among the 24 non-initiative states, the supermajority threshold for constitutional referral varies:

• South Carolina: two-thirds in each chamber (Article XVI).
• Virginia: simple majority in two consecutive sessions, then voter approval. Lower threshold but two-cycle requirement.
• Maryland: three-fifths in each chamber. Lower threshold than SC.
• Tennessee: simple majority + two-thirds in next session, then voter approval.
• North Carolina: three-fifths in each chamber, then voter approval.
• Georgia: two-thirds in each chamber + voter approval.

SC’s two-thirds first-pass threshold is on the strict end among non-initiative Southern states — tied with Georgia and stricter than Maryland, Virginia, and North Carolina.

Practical Implication

The Article XVI pathway is theoretically available but practically unreached. The Compassionate Care Act’s peak Senate vote (28–15 in 2022) fell two votes short of the 30-vote two-thirds bar. The House has not approached the 82-vote bar. Until a substantial shift in the Republican caucus produces two-thirds support — an outcome that would require either federal preemption pressure or a generational shift in House Republican posture — constitutional referral is not a near-term reform pathway. The statutory Compassionate Care Act remains the primary vehicle, with all of the procedural vulnerabilities (origination clause, House 3M bottleneck, Speaker veto) that have blocked it for over a decade. See Compassionate Care Act page.