Shortly before adjourning this year’s General Assembly session in late June, legislative leaders announced a slate of ballot measures, six constitutional amendments in all.
Although some of the proposals had been discussed previously, others aimed at restructuring state government had not been discussed previously. They drew immediate criticism and, eventually, legal action that resulted in changes during another hastily called legislative session in late August.
The decisions in those cases were among the reasons the printing of this year’s ballot was delayed, and although the controversies were in the news for weeks, polling shows that voters know little about what the proposed amendments would do.
An Elon University poll of 1,523 registered voters released in early September showed that while 56 percent of respondents knew that amendments would be on the fall ballot, 62 percent of those responding said they had heard little or nothing about them. Only 8 percent said they had heard “a lot” about the amendments.
The survey also found that support for the amendments dropped as more details were explained.
Given the circumstances of this year’s referendums, voter confusion is understandable.
While North Carolina voters are used to occasional statewide referendums, they’ve seen only a few constitutional amendments over the past decade. There have been seven in this century, and only one, the 2012 marriage amendment, was the subject of a heated statewide campaign.
Almost all the constitutional questions in recent years have been the only ones on the ballot. The last time there was a major grouping of amendments was in 1985, when five amendments were proposed at the same time.
Further, several of the amendments this year require follow-on legislation that has yet to be proposed, a novel position for North Carolina voters who in prior referendums had been given a better idea of the specific laws to follow, known in legislative parlance as “enabling legislation.”
In the case of the amendment requiring a photo identification for voting, for instance, there is no indication yet of the types of identification that will be acceptable or how an individual might receive a waiver, two areas that would have a significant impact on the number of potential voters affected and vary widely among states that already have the requirement.
Also adding to the confusion is that the language of the amendments themselves and their official descriptions have been the subject of legal battles and required the special session just ahead of the ballot printing deadline to rewrite them.
One of the results was the production of an official voter guide in which the GOP-dominated legislature provided the ballot questions and a three-member state commission with two Democrats and one Republican added descriptions that took aim at legislative intentions.
The official ballot question for the amendment for a new board of elections and ethics reads: “Constitutional amendment to establish an eight-member Bipartisan Board of Ethics and Elections Enforcement in the Constitution to administer ethics and elections law.”
The headline over the official description in the same document seems to say something else: “Party Leaders in Legislature to Control Ethics and Elections Board Appointments; Eliminate Nonpartisan Representation on Board.”
The same kind of mixed message in the official documents has played out in statewide campaigns. While most of the amendments have drawn opposition, the heat has been focused on those affecting elections, filling judicial vacancies, and appointments by the governor.
The most high-profile opposition has come from North Carolina’s five former governors, two Republicans and three Democrats, who have actively campaigned against the judicial vacancies amendment as an assault on judicial independence and the elections and ethics board amendment as a move that will tie up elections and shift even more power to the General Assembly. A previous version of that amendment, which included new legislative authority over executive branch appointments, was struck down in state court and the amendment modified, although not enough to win over the governors.
Following are descriptions of the six amendments, what they would do, and the potential laws around them. We’ve included links to the official bills and descriptions.
Amendment to require photo ID to vote in person
What would the amendment do? It would amend two sections of the state constitution, adding that voters must present photographic identification to vote and giving the General Assembly the authority to enact laws governing the requirements. The language allows for exceptions but does not specify what they are. If voters approve the amendment, those details would be taken up by the legislature after the election.
Proponents of the amendment say it’s needed to provide clear authority to the legislature for drafting new voter identification laws to prevent voter fraud.
Those opposed to the amendment say it would lead to a law that would disenfranchise thousands of mostly elderly and minority voters and that instances of in-person voter fraud, while not unknown, are extremely rare.
Authorization bill: Text
When would it take effect? If approved, the changes would take effect after the certification of November’s election, which is scheduled for Nov. 27. The use of the word “shall” in the language of the bill impels the General Assembly to draft enabling legislation. Although the next election is not until next year’s spring primaries, legislators who have supported voter identification legislation in the past have called for the General Assembly to enact new legislation as soon as the lame-duck special session, which is scheduled to start Nov. 27.
What would happen after that? Any new legislation is almost certain to be challenged in court and the amendment itself, already the subject of multiple challenges, could be challenged again. The fate of those cases turns on the specifics on allowable types of identification and the types of exceptions built into the law.
The state’s previous photo identification law was part of a multisection bill that federal courts ruled unfairly targeted African-American voters.
That legislation included a narrow list of acceptable identification. An earlier version of the legislation included additional forms of IDs, such as student IDs, but the bill was modified in the weeks following a U.S. Supreme Court decision that ended federal requirements for pre-clearance of voting laws.
Exceptions to voter ID requirements vary widely in the states that require them.
Amendment to establish a bipartisan Board of Ethics and Elections Enforcement
What would the amendment do? It would add a new section to Article VI of the state constitution creating a new state board to take on the duties of the state elections board and the former ethics commission, which were merged into a similarly named state Board of Elections and Ethics Enforcement in 2016. The addition of the word “bipartisan” is a reference to a change in the composition of the board, which now has four Republicans, four Democrats and one unaffiliated member appointed by the governor from candidates selected by the board.
The amendment would eliminate the unaffiliated member, leaving the board at four members from each of the two major parties. They would be appointed by the governor from candidates selected by the leaders of the two parties in the House and Senate.
Proponents of the proposal say the new board would put both parties on equal footing and lead to more consensus on election disputes.
Opponents say the 4-4 structure would lead to more partisanship and tie votes, which would result in inaction when it came to decisions on conflicts at the local level such as early voting plans.
The plan would also leave the fast-growing number of voters who are unaffiliated with no say in the makeup of this board.
Authorization bill: Text
When would it take effect? If voters approve the amendment, the General Assembly would be required to enact laws on handling vacancies on the board, and a new board would begin its duties on March 1, 2019.
What would happen then? Like the other more controversial amendments, legal challenges to the amendment and new laws adopted because of it are likely to be filed early in the process.
Amendment on judicial vacancies
What would the amendment do? The title of the amendment bill is lengthy and sets out a new system of selecting nominees for judicial vacancies, starting with a new judicial merit commission appointed by the governor, legislature and chief justice of the state Supreme Court. Nominees selected by the commission are forwarded to the General Assembly, which is charged with selecting two nominees to forward to the governor.
The system now relies on recommendations forwarded to the governor by the bar association in the judicial district with the vacancy.
Legislation on nominees would not be subject to veto by the governor.
Proponents of the change say it will move to a better system of judicial selection based on merit.
Opponents say the change effectively moves the selection of judges from the governor to the legislature and takes local input out of the process.
Authorization bill: Text
When would it take effect? According to the bill, the amendment would become effective upon election certification and would apply to vacancies occurring on or after the date of this year’s general election.
What would happen then? The new selection commission would be appointed, and the process would be established for submission on nominations from the public. The amendment and enabling legislation are also likely to be challenged in court.
Amendment declaring the right to hunt and fish
What would the amendment do? It would add a new section to the state constitution that reads, “The right of the people to hunt, fish, and harvest wildlife is a valued part of the State’s heritage and shall be forever preserved for the public good. The people have a right, including the right to use traditional methods, to hunt, fish, and harvest wildlife . . .”
It would also make the right subject to laws for wildlife management and states, “Public hunting and fishing shall be a preferred means of managing and controlling wildlife.”
The section includes a disclaimer that it does not modify laws on “trespass, property rights or eminent domain.”
If approved by voters, North Carolina would become the 22nd state to put the right to hunt and fish in its constitution. This version tracks a National Rifle Association-supported model that has been used in other states that have had recent votes on similar amendments.
The state’s voters guide notes that “traditional methods” are not defined, and it is not clear what the practical effect will be of making hunting and fishing the preferred means of wildlife management.
Proponents of the amendment say it would prevent animal rights groups from initiating court challenges to hunting and fishing and encourage participation.
Opponents argue that the amendment is too vague and could impede effective wildlife management.
Authorization bill: Text
When would it take effect? The amendment would take effect upon certification of the election and does not require the adoption of new laws.
Amendment to provide better protections and safeguards to victims of crimes
One of the more complex amendments, this would make multiple changes to a victims’ rights amendment approved in 1993, adding several sections that give crime victims more opportunities to be heard in hearings and other legal proceedings.
Proponents say the additional sections give greater weight to the impact on crime victims and create additional layers of input, access to information and protections.
Opponents say that its objectives could be done through laws and an amendment is unnecessary, costly, and would limit judges’ options.
Authorization bill: Text
When would it take effect? If approved, the amendment would take effect Aug. 31, 2019, giving the General Assembly time to enact new laws that would spell out the procedures for victims to assert their rights under the amendment.
Amendment to cap the maximum state income tax rate at 7 percent
What would the amendment do? It would amend Section 2 of Article V of the state constitution, which currently limits the maximum state tax rate on income to 10 percent.
Proponents say it will lead to more fiscally responsible spending and prevent a return to higher income taxes.
Opponents say it will handcuff government should there be a crisis that required higher rates as well as unnecessarily limit options in future tax policy.
Authorization bill: Text
When would it take effect? Once the election results are certified, if approved by voters, the amendment would take effect immediately and apply to taxable years starting on Jan. 1, 2019.
What would happen then? Since the current income tax rates are already nearly 2 percentage points below the rate and scheduled to drop further, there is no immediate effect.
For more information
- Senate Bill 75, creating constitutional amendment on the maximum tax rate
- Senate Bill 677, creating the constitutional amendment to protect the right to hunt and fish
- House Bill 3 (2018 Second Extra Session), creating the constitutional amendment to establish nonpartisan judicial merit commissions
- House Bill 551, creating the constitutional amendment on strengthening victims’ rights
- House Bill 4 (2018 Second Extra Session), creating the constitutional amendment to establish a bipartisan board of ethics and elections
- House Bill 1092, creating the constitutional amendment to require photo ID to vote
- “Politifact” investigation of statements about NC constitutional amendments
- Judicial Voter Guide (with amendments included toward the end)
Editor’s note: This article was published by Carolina Public Press. It has been posted with the author’s permission.Voting & Elections