GOP lawmakers want North Carolinians to make sweeping, permanent changes to the state Constitution and trust them to sort out the details of it all later.
The legislature considered four constitutional amendment proposals yesterday and voted to move along two of them and continue discussing the other two.
The House Rules Committee voted first along party lines to pass a constitutional amendment that would protect people’s right to hunt, fish and harvest wildlife. There was no debate.
Next up: an amendment to enshrine a voter identification requirement for in-person voting in North Carolina.
Only three states have a voter identification requirement in their constitutions — it’s usually a statutory change, which, in North Carolina only requires a majority vote by the legislature to pass. Permanently changing the state constitution requires a three-fifths vote by the legislature and a majority vote by the public to pass.
The details of how North Carolina’s voter identification process would not be decided until after voters approved the amendment, which technically means lawmakers could resurrect the same “monster voting law” they did before that was struck down by the courts.
But, Rep. David Lewis (R-Harnett) assured, that’s not the intent behind the measure.
“It would be my intention and I think the intention of those of us who support the concept to develop a new system that requires IDs to be shown,” he said. “We’re aware that there are going to have to be some exceptions to that. There are people that don’t have their photograph taken for religious reasons and things like that. Things like that just need to be talked about and talked through. I’m positive we’ll be able to work up a system that voters understand, that voters support and that will pass constitutional muster.”
Rep. Robert Reives II (D-Chatham) said he’s worked well with Lewis and trusts that his intention isn’t to harm voters, but pointed out that he was only one of 120 House members and couldn’t speak for everyone.
“To me, this is problematic because it is so vague, and it gives a tremendous amount of authority to the General Assembly,” he said.
Many members of the public agreed.
“When voter ID was last attempted in this state, it was proven to block eligible voters from casting ballots, and those who were denied their rights were disproportionately African-American voters,” said The Rev. Dr. T. Anthony Spearman, President of the N.C. NAACP. “House Bill 1092 would be one of the nation’s most extreme voting restrictions.…Voters are being asked to vote on a confusingly vague and permanent addition to the state constitution and enshrine discrimination without telling them what the change would be.”
Tomas Lopez, Executive Director of Democracy NC, a voting rights organization, echoed some of Spearman’s sentiments and expounded on the gravity of having a constitutional amendment on a voter identification requirement.
“This will become the basis for…future litigation in state courts over this issue,” he said. “Any future ID law, whether one that is enacted by this General Assembly or future General Assemblies will have to be judged by the state court against this standard.…I’ll also note that that standard, secondly, is unnecessarily vague.”
Paula Jennings, who represents the League of Women Voters of Wake County, said the organization strongly opposes a voter ID amendment. She read from a prepared statement.
“The use of resources that would be required to determine and provide acceptable forms of identification to all voters and to develop policies and procedures for local county Board of Elections is unnecessary and wasteful,” she read.
Other members of the public spoke in favor of the amendment, recounting personal experiences with voter fraud and calling for more security.
“Voting is one of our most precious rights, yet with rights come responsibilities,” said Fayetteville resident Jerry Reinhold. “This Vietnam Veteran wants every citizen to vote in our elections, but only once. We cannot prevent those committing voter fraud to steal our elections.”
It should be noted that the the State Board of Elections released an audit of the 2016 election and found that only one of the 4,769,640 votes cast in November would probably have been avoided with a voter ID law.
Reinhold thinks that’s because voter fraud is easy to commit but very difficult to prove and prosecute. He said he witnessed fraud as a trained poll observer in 2012 and pointed out that if senior citizens needed a photo ID to get a discount on bus fare, they should have to have one to vote.
Dallas Woodhouse, Executive Director of the North Carolina GOP, said the party thinks a voter ID constitutional amendment is a unifying opportunity for the state.
“This issue has been far more controversial with the activist community in Raleigh and in this building than it has been with voters,” he said. “Virtually every poll shows this to be supported by white and Black, man and woman, Republican and Democrat, urban and rural, and we have a chance to let the voters have a direct say through our constitution.”
Democratic lawmakers and other speakers opposed to the amendment said it was a voter suppression effort, which Woodhouse denied.
Democratic Leader Darren Jackson (D-Wake) offered two amendments to the measure — one that would also require a photo ID of absentee voters (which has been proven to be most used by white voters) and one that would prevent the General Assembly from enacting enabling legislation before January (when there could be a new legislature in power).
Both amendments failed along party lines, 21-9.
Rep. Marcia Morey (D-Durham) and Rep. Pricey Harrison (D-Guilford) weren’t voting members of the committee but both spoke against the voter ID constitutional amendment.
Morey said her colleagues were trying find a problem to solve and that there were better ways to address the integrity of the voting system. Harrison said they should tread more lightly when it comes to making such a big, permanent change.
Committee members voted again along party lines, 21-9, to advance the measure. It is scheduled Monday for a House floor vote.
Not long after Thursday’s House meeting on constitutional amendments, the Senate Judiciary Committee met to debate two more: “Strengthening Victims’ Rights” and “Judicial Vacancy Sunshine Amendment.”
The first is a version of Marsy’s Law, which is a multi-part proposal to expand crime victims’ rights. On the surface, it sounds simple, but Senate debate proved it’s anything but.
Sen. Tamara Barringer (R-Wake) championed the bill and said the most important provisions involved the expansion of notification to victims of crime about proceedings and outcomes, the expansion of the definition of victim and an enforcement mechanism for victims to file motions in cases when they’re dissatisfied.
“This is a really good bill,” she said. “We worked really long and hard on it.”
Lawmakers did not bring up or discuss the confidential fiscal note from last year that showed the measure could cost state courts $16.4 million to implement and $30.5 million annually in subsequent years.
But, Democratic Senators had a lot of questions, including how notification and a victims’ right to be heard would be implemented in bond reduction hearings, how courts could manage inappropriate victim responses when they have a constitutional right to be heard and how much money would be involved.
Sen. Floyd McKissick Jr. (D-Durham) said as a victim of gun violence, he uniquely appreciates what it means to be a victim and understands the need for balancing victims’ rights with the administration of justice.
“So often, victims are simply seeking retribution with a very high level of expectation, and I think we could end up with far more people frustrated with the outcomes of cases the more they are involved and engaged in the process,” he said. “They might perhaps become less appreciative of what it takes to administer justice in a fair and balanced way.”
Legislative staff said they’ve crafted the measure to avoid pitfalls experienced by other states that have implemented Marsy’s Law. Issues stemming from the bigger proposal — one of which is expense; there’s no way for a district attorney’s office to estimate how many victims will enforce their rights and how much money would be needed to cover those instances.
Wake County District Attorney Lorrin Freeman said the state Conference of District Attorneys had been consulted about the amendment process and provided feedback up to the day before the meeting.
But, she said a lot of what the amendment does is already in place — victims’ rights already are enshrined in North Carolina Constitution.
“We try every day to work well with victims and to serve victims,” Freeman said. “I certainly understand that not all victims come out of the process feeling like justice has been served. As prosecutors, we serve the state of North Carolina, and most of the time, that is consistent with the victim’s position.”
She said there is most potential for difference of opinion with victims in domestic violence cases, where they might want to have contact with the accused and district attorneys not agree — in which case the provision allowing victims to file motions might create a problem.
N.C. Administrative Office of the Courts associate general counsel LaToya Powell spoke on behalf of Director Marion Warren to bring attention to the unintended consequence of releasing confidential and sensitive juvenile information.
Unlike adults, the disposition of a juvenile’s court case is not public record — that’s often because it involves more than a sentence; sometimes it involves a mental health evaluation, substance abuse treatment or other sensitive rehabilitation measures.
Powell said the AOC understands the importance of victims’ rights in juvenile delinquency proceedings, and that those rights were recently expanded in prior legislation.
“But it did so in a way that was consistent with the nature of juvenile court,” she added. “One really important thing about that (prior) legislation is that it stopped short of giving victims access to confidential juvenile records. The confidentiality of juvenile information is a founding principle of juvenile court.”
She said victims are currently allowed to be present at every hearing in a juvenile case and heard regarding the disposition of that case.
Rep. Nelson Dollar (R-Wake), who is a sponsor of the constitutional amendment, said he was surprised to hear from the AOC about their concerns when the measure had been filed for so long. He and Barringer assured they could address concerns in enabling legislation after the public voted on the amendment.
Warren didn’t say that the AOC opposed the amendment, but they wanted to bring possible consequences to Senators’ attention.
“The information brought here today … was for your information,” he said. “And I apologize Rep. Dollar if it feels like we did not input, but as you recall, we didn’t have many meeting opportunities such as this.”
The Committee did not vote on the amendment, but expects to take it up again Monday.
The last constitutional amendment discussed was one sprung on the legislature the day before by Senate President Pro Tem Phil Berger.
The Judicial Vacancy Sunshine Amendment — sponsored by Senators Warren Daniel (R-Burke), Paul Newton (R-Cabarrus) and Shirley Randleman (R-Stokes) — would transfer judicial vacancy appointment power from the governor to the legislature.
The amendment, of course, is more complicated than that — it doesn’t exactly read that lawmakers will appoint judicial vacancies, but the end result of the measure is that they would inherit the power to do so.
Newton said the amendment would allow lawmakers to create a “nonpartisan judicial merit commission” to evaluate judicial nominees submitted by the public. The commission would rate nominees as qualified or unqualified and then let lawmakers know how everyone was rated.
Lawmakers would then select two judicial nominees to submit to the governor for appointment. Those nominees, however, do not have to be from the merit commission.
The language of the amendment is so vague that lawmakers could actually submit one “qualified” candidate to the governor and one “unqualified” candidate, effectively giving them the power to appoint judges.
Newton told the committee that the amendment still leaves in place North Carolinians right to elect judges, but then a short time later said he and his colleagues were trying to “drive our state toward a merit-based judicial selection process.”
He could not answer most of the questions his colleagues posed about the measure — including how many appointments each branch of government would get to make on the merit commission and what qualifications the commission would consider.
All the details would be put in place after voters approved the amendment, he said — as with the other constitutional amendments.
The enabling legislation that comes after the constitutional amendment is passed could result in the legislature choosing seven of the nine-member commission and the governor and state Supreme Court Chief Justice each choosing one member. All of the members could be from one party or the other. And lawmakers would not be bound to choose anyone the commission picks.
Newton said during the meeting that the people were the funnel for the system they were setting up. When asked after the meeting how North Carolinians would be the funnel for the system if lawmakers could choose their own judges, he said enabling legislation later would address implementation of the plan.
“We got constrained by staff about not putting too much in the constitutional amendment,” he said. “Just the practics of it, we would have to do in enabling legislation and both parties would be involved in that.”
When asked how both parties would be involved since Democrats have been shut out of most legislative processes in the past year, Newton pointed out that they were just part of the discussion in the meeting. Then he said he had to go and couldn’t take more questions.
Lawmakers have been discussing judicial redistricting and merit selection for a year. House Republicans prefer judicial redistricting — which has, in part, has become law — and Senate Republicans prefer merit selection, or judicial appointment — which lawmakers denied as late as last week would be rolling out this session.
Democrats have opposed their plans and were shut out of the initial legislative crafting process. They participated in discussions about judicial reform but when they made suggestions or tried to amend any of the legislation in meetings or on the floor, they were shot down.
Sen. Jeff Jackson (D-Mecklenburg) pointed that out and said Newton couldn’t guarantee Democratic involvement in enabling legislation if the amendment passes.
“It’s a legitimate concern how this provision will be comprised in light of the fact that no one in my party is going to be involved in the prescription by law when it comes to that creation of that commission when we’re speaking in actuality,” he said.
Jackson said if lawmakers actually wanted to establish a nonpartisan merit commission, the amendment needed to establish how the commission would be comprised.
“Because nobody trusts the General Assembly to make this a nonpartisan commission,” he went on. “If you wanted to do it equally, three would come from the Governor, three would come from the Supreme Court and three would come from the General Assembly. Even if you divide it up equally, you’re going to have two Republicans and, at best, one Democrat.”
Douglas Keith, counsel at the Brennan Center for Justice, which has been tracking merit selection legislation for years, described the new measure as “very much a legislative appointment constitutional amendment.”
He said that the details of how the commission will be made up are not available in the amendment language and that members appear to have very little say in the process.
Keith said the amendment raises the same concerns as the legislative appointment processes in the few states that have them, including cronyism, partisanship, back-room dealing and self-appointment.
“It’s troubling because of the problems from other states’ experiences we might be able to anticipate will be coming,” he said.
The Senate committee did not vote on the amendment, but like Marsy’s Law, is expected to discuss it again Monday.