August 14, 2018, Highland United Methodist Church
NC Representative Cynthia Ball: District 49 Wake County
NC Representative Joe John: District 40 Wake County
Bob Phillips has been the Executive Director of Common Cause, NC, since 2001. Common Cause cannot take a position on candidates but can take a position on issues, and has been leading the effort to end gerrymandering. Common Cause’s position on the six amendments is to veto all six.
Justice Bob Orr is a former Justice on the NC Supreme Court. Justice Orr formed the NC Institute for Constitutional Law and is currently in private practice. He supports the amendment to Strengthen Victim’s Rights (Marsy’s Law).
Aylett Colston is an attorney with Hutchison PLLC, and a champion of redistricting reform and voting rights. She is opposed to all six amendments.
Last week’s town forum was a crash course in the history of NC’s Constitution, the legislative process to develop an amendment and a more detailed examination of what is included, or not included, in the six amendments slated to be on the ballot November 6.
I am recent transplant to NC and feel like I am running a marathon to catch up on NC politics and issues. I wanted to learn as much as I could about the political environment in my new state, so I decided to attend the forum on the amendments. Hopefully this information will help other newcomers to NC, or at least to NC politics! Note: I have not attributed all the information to panelists or legislators but am summarizing information presented by the combined presenters.
The current NC Constitution, adopted in 1971, is the 3rd constitution in NC. The first state constitution was passed in 1776. The 1868 constitution established the structure of the state government after NC was readmitted to the Union after the Civil War. However, after the first flush of Reconstruction, it was heavily amended in 1873 and 1875 weakening the “progressive nature of the constitution.” (ncpedia.org). In 1900 voting requirements for a literacy test and a poll tax were passed, effectively disenfranchising many African Americans, Native Americans and other groups. There are some bad precedents of amendments to the state constitution. This should wake us all up.
Re. Cynthia Ball gave a brief lesson in how an amendment is passed:
Goes to floor of General Assembly
Legislation is written as to how amendment will be presented on ballot
Goes to Committee for discussion
Returned to floor for a vote which requires a 3/5’s vote of all members (not just those present) to pass.
Repeat in Senate
Governor cannot veto a proposed amendment
Require majority vote by voters on Nov. 6 to pass.
Procedural problems with these six amendments:
- Typically there is “vigorous” debate in committee which was totally lacking with these amendments. One panelist described the committee debates as “backroom deals.”
- The six amendments were not publicized for public comments.
- Five of the six amendments lack “enabling language” (see below). Thirteen of the last 14 amendments contained enabling language, which lays out the details on how the changes will be implemented.
- Bob Phillips said a special election was called with less than 24 hours notice to discuss the constitutional amendments.
- The summary of the amendments does not accurately reflect the content. Justice Orr said that historically legislators have summarized their views on amendments. He feels if an explanation of an amendment is 3 pages long, all 3 pages should be on the ballot. He said that a minimum, “you cannot mislead the public” as to content/intent of amendment.
- The Secretary of State, Attorney General and Chief Legislator of NC were to review the amendments and put accurate titles to the amendments. Instead, in the above mentioned special session, titles were removed and now we will just see “Constitutional Amendment” as the header, without even a number.
Enabling Language: None of these amendments contain “enabling language” where needed. In brief, that is description of how the amendments would be implemented. Undoubtedly the legislature will meet on Nov. 7 to put into place this language especially if they have lost the majority in the General Assembly. The easiest way to understand this is to go back to Photo Identification. What forms of photos id will be acceptable? How restrictive (one wit suggested it could be a photo id from a country club) would requirements be? How can they ensure every eligible citizen has access to a free ID with no burdensome requirements?
Amendment on Photo Identification: *Note this is a photo id requirement, not just a “voter id” amendment.
Much of the discussion and many questions were related to this amendment which would require “photo identification to vote in person.” A brief history: A voter identification law (not an amendment) was passed in 2013 in NC. This was one part of a national wave of restrictive voting laws enacted after central portions of the Voting Rights Act were overturned by the Supreme Court, and states like NC no longer had to get permission from the Dept. of Justice to enact election laws.
But the courts did strike down the 2013 NC VoterID law stating that it was an unconstitutional effort “to target African Americans with almost surgical precision” and restrict their access to vote. The law had rejected forms of ID’s issued to government employees, students and people receiving public assistance. After it was struck down in 2016, “the leaders of North Carolina’s Republican controlled legislature vowed that they would seek to enact new voting restrictions after their defeat.” (NYT 5/15/2017). This time they are choosing to do it through an amendment to our constitution, instead of a law that requires enabling language, debate and discussion.
Now is a good time to break for a very important point made by Aylett Colston. I think many people have wondered why so many of these “amendments” ARE amendments and not just laws. Aylett Colston said that even if lawsuits are brought on Nov. 7, a day after the election, it will take years to work through the courts. Whatever restrictions have been passed would undoubtedly still be in effect for our general elections in 2020. A truly terrifying thought, as whichever party in power in 2020 will be able to determine the new voting district maps after the census is complete.
Aylett also said that of those disenfranchised by the 2013 Voter ID law, 64% were women. And with the “Real” ID law in place for new licenses, many more women may have trouble getting this driver’s license as their birth certificates are likely to be in their maiden name. Additionally, subsequent legislatures could overturn/change laws but repealing a constitutional amendment would be much more difficult and not subject to the same scrutiny of the state court.
Bob Phillips mentioned Common Cause has long been an opponent of voter id laws. And there is no research to back up the need for voter id (i.e. no widespread voter fraud). Bob Orr, who had previously supported the voter id amendment, wrote an op ed piece for the Charlotte Observer expressing why he has changed his mind.
Amendments on Power Grabs by the NC Legislature:
Much of the remaining discussion involved two amendments with a unanimous opinion that they would shift huge amounts of executive authority to the legislature. Bob Orr said this was “the most audacious power grab by any group ever seen.” This week, all five previous Governors spoke out against these amendments.
This shift of power would threaten the separation of powers between all three branches of government. The Legislature is meant to write laws, while the Executive Branch enables the laws to be carried out through appointments to boards and commissions for instance. And the Judicial Branch interprets the laws and protects our rights.
Our existing Constitution limits the power of government in order to protect the rights of the people. These amendments don’t grant additional rights to the people. Questions to consider: Does this belong in the constitution? Does it protect rights? Does it limit government? These amendments are asking voters to make extraordinary changes to the constitution with little upfront education and misleading descriptions on the ballot. (pending a decision by a 3 panel court on whether the legislature’s language should be allowed to stand.)
Marsy’s Law – Victims Rights Law
Justice Orr fully supports this amendment to enshrine victims’ rights, some of which are already law in NC, in the constitution. However, I wanted to know more about both perspectives so I found an article that explains some of the problems with this amendment. In a nutshell, it “turns the presumption of innocence upside down by designating someone as a victim … before it’s been established that the defendant has committed any crime.” It seems a victim can be defined in multiple ways. This amendment does not contain any enabling language either, or funding planned for implementing the changes.
This is not meant to be a complete overview on the issues with each amendment, but it was a helpful town hall forum for me to understand that there is a lot at stake in the election this November for the people of North Carolina especially.
To close, a few of my favorite comments and questions:
From the floor: “If legislators are elected under illegal gerrymandering, how do they have the right to govern?”
“Authority of the government comes from the consent of the people.”
“If you vote for an amendment with no “enabling language” or the summary is changed post election, did the “people’” give consent?”
And finally, Bob Phillips summarized Common Cause’s stand: “If you don’t know it, vote no. If you don’t understand it, vote no.”
Just be sure to Vote Nov. 6!