UPDATED: A Close Look at the Six Constitutional Amendments on Your Ballot
[This version is updated to reflect a court ruling and new ballot language.]
In North Carolina, the general public doesn’t get to put amendments on the ballot through ballot initiatives but the public does get to vote on proposed amendments.
Your ballot this November will include six proposed constitutional amendments.
1. Right to Hunt and Fish
You can read the full amendment here.
Here’s what the language on your ballot will be:
[ ] FOR [ ] AGAINST
Constitutional amendment protecting the right of the people to hunt, fish, and harvest wildlife.
No one ever got a straight answer on why this is necessary. When I asked in committee whether this was going to impact any existing state laws, regulations, or municipal ordinances, I was told, “Not that we know of.”
This amendment may, however, end up causing plenty of litigation from hunters and fishermen who feel that existing regulations impinge on their (new) constitutional right. The courts would be left to establish standards for what level of regulatory intrusion would constitute a constitutional violation.
2. Legislative Selection of Judicial Vacancies (i.e., majority party in the state legislature fills the judicial vacancies)
You can read the full amendment here.
Here’s what the language on your ballot will be:
[ ] FOR [ ] AGAINST
Constitutional amendment to change the process for filling judicial vacancies that occur between judicial elections from a process in which the Governor has sole appointment power to a process in which the people of the State nominate individuals to fill vacancies by way of a commission comprised of appointees made by the judicial, executive, and legislative branches charged with making recommendations to the legislature as to which nominees are deemed qualified; then the legislature will recommend at least two nominees to the Governor via legislative action not subject to gubernatorial veto; and the Governor will appoint judges from among these nominees.
This is the second version of the ballot language. The first version was struck down by the court for being unconstitutionally deceptive. This language is an improvement.
But here’s the bottom-line: This amendment would essentially allow judicial vacancies (caused by retirement, death, etc.) to be filled by the majority party in the General Assembly.
Right now, the governor fills judicial vacancies. It works that way because the governor is elected statewide and judicial vacancies occur all across the state.
If this amendment passes, here’s what the new process will look like:
A vacancy occurs -->
anyone (including legislators…) can recommend someone to fill it — >
a “nonpartisan judicial merit commission” evaluates the nominees to determine who is “qualified” — >
the General Assembly (i.e., the majority party…) gives the Governor at least two “qualified” nominees to choose from.
Despite carving out roles for a nonpartisan commission and the governor, what’s really happening is that the General Assembly will now have almost total control of filling judicial vacancies. Here’s why.
The nonpartisan commission will likely be toothless. Its only function is to determine whether a nominee is “qualified” — a very low bar. That means the commission won’t serve as any kind of genuine filter. More to the point, it’s highly likely that any nominees recommended by the leadership of the General Assembly will be deemed “qualified.” In all likelihood, this commission is only being included so its inoffensive language can be featured on the ballot to help the majority party pull a bait-and-switch on the voters: advertise the amendment as “nonpartisan,” then reap the partisan rewards of newfound power.
There’s a second smokescreen at the end, when the General Assembly gives the governor a very short list of names from which to pick. The majority party will, in essence, hand the governor a menu of judicial candidates — including as few as two names — from which the governor must order. This one is easy to see through: If I take a list of 15 or 20 people and narrow it down to the final two for you to choose, I’m the one doing the real choosing.
Without a doubt, the majority party in the General Assembly will be in near-full control of the outcome, permitting the Governor to play a token role at the final stage in choosing between two or three of the majority party’s preferred nominees. That’s why this should properly be understood as moving to legislative selection of judicial vacancies.
It’s worth noting that this amendment is opposed by every living former governor of North Carolina (that’s two Republicans and three Democrats), every living Chief Justice of our state Supreme Court, and at least three Republican legislators.
If you prefer the state legislature to have most of the power to fill judicial vacancies, you now have that choice on the ballot this November. I’m very skeptical that is a wise choice.
[Update: There was originally a loophole that would allow the General Assembly to bypass any veto. That loophole has since been closed.]
3. Ethics and Elections Board
You can read the full amendment here.
Here’s what the language on your ballot will be:
[ ] FOR [ ] AGAINST
An act to amend the constitution of North Carolina to establish a bipartisan Board of Ethics and Elections Enforcement.
This is the second version of the ballot language. The first version was struck down by the court for being unconstitutionally deceptive. This language is an improvement.
For the last two years, there’s been a battle between Gov. Cooper and the General Assembly over the Ethics and Elections Board. (These were two separate boards until recently, when they were combined.)
In short, historically the governor has had appointment authority over these boards. The General Assembly would prefer that it have appointment authority, with the requirement that, of the Board’s eight members, four would be appointed by the Republican leadership of the General Assembly and four by the Democratic leadership, presumably resulting in four Republicans and four Democrats.
Here’s the key language on the Board’s composition:
Yes, a 4–4 board is likely to deadlock quite often. And deadlock is particularly harmful here because it may end up restricting early voting. Early voting sites are determined by county election boards, which are themselves 2–2 and primed for deadlock. Any deadlock is appealed to the state board, which would now be 4–4 and also primed for deadlock. If that occurs, state law says the only early vote site will be the election office itself — hence the potential for early vote restriction.
It’s worth noting that this amendment is also opposed by every living former governor of North Carolina (that’s two Republicans and three Democrats).
[Update: Another section which would have given the state legislature sweeping new appointment authority was eliminated.]
4. Victim’s Rights
You can read the full amendment here.
Here’s what the language on your ballot will be:
[ ] FOR [ ] AGAINST
Constitutional amendment to strengthen protections for victims of crime; to establish certain absolute basic rights for victims; and to ensure the enforcement of these rights.
We already have a “victim’s bill of rights,” but this amendment would expand the list of crimes to which it applies. This includes rights like being notified about court proceedings, being heard at sentencing, recovering restitution, and the right of the victim to be heard by the court if he or she feels these rights are being denied.
5. Cap Income Tax at 7%
You can read the full amendment here.
Here’s what the language on your ballot will be:
[ ] FOR [ ] AGAINST
Constitutional amendment to reduce the income tax rate in North Carolina to a maximum allowable rate of seven percent (7%).
Originally, the proposal was to cap it at 5.5%, which is roughly where our income tax rate is now. The idea was that, by dictate of constitution, the income tax rate would never be allowed to go higher than it currently is. But a significant number of Republicans in the House were concerned that this would cinch the fiscal handcuffs a little too tight and may hinder the state’s response in the event we needed to raise revenue.
There were also concerns from Democrats that this would result in further underfunding public education, which is the state’s top expense.
6. Voter ID
You can read the full amendment here. It’s short. Here’s what it says:
“ Voters offering to vote in person shall present photographic identification before voting. The General Assembly shall enact general laws governing the requirements of such photographic identification, which may include exceptions.”
Here’s what the language on your ballot will be:
[ ] FOR [ ] AGAINST
Constitutional amendment to require voters to provide photo identification before voting in person.
Its brevity is significant. The last voter ID law from 2013 included specific forms of ID that were acceptable. Upon review, a federal court found, “With race data in hand, the legislature amended the bill to exclude many of the alternative photo IDs used by African Americans.” As a result, the court held that the law had targeted African-American voters with “almost surgical precision” and struck it down.
So this constitutional amendment is a re-do effort. It’s left out all of the implementation language in order to create as little controversy as possible until the amendment is voted on this November — after which, the General Assembly is already scheduled to reconvene in a special session two weeks later to pass a bill the includes all the details. It is truly a case of “you have to pass it to find out what’s in it.”
It may be significant that last year’s audit of the 2016 election in North Carolina by the State Board of Elections found that out of 4,769,640 votes cast, it appears that one fraudulent vote would have been prevented with voter ID.
It may also be significant that during the debate on the Senate floor a proposed modification to the amendment would have required assisting those who don’t have photo identification in obtaining it, but it was shot down in a party-line vote.
It is estimated that 218,000 registered voters in North Carolina lack photo ID.
You have some important choices to make. So do your friends and family. Changing our constitution shouldn’t be taken lightly and North Carolina needs everyone to make informed choices in November. Most importantly, please remember to vote. If you’re not registered, you can do that here.
