When the General Assembly’s legislative session closed last week, six amendments to the state constitution had been approved for November’s ballot.
The amendments deal with a wide-ranging array of subjects: the right to hunt, fish and harvest wildlife; the rights of crime victims; changes to the state board of elections and the transfer of appointment powers from the governor to the legislature; selection for judicial vacancies; a cap on the state income tax and requiring a photo ID to vote.
But as hotly as the content and necessity of the amendments were debated, an important question went virtually undiscussed: how the amendments will be presented to voters.
That’s a question Gerry Cohen has been examining this week.
Cohen served as Director of Legislative Drafting at the General Assembly for 30 years until 2012, then served two more years as special counsel. Of the last 16 amendments to the state constitution, Cohen personally drafted nine and reviewed the other seven before lawmakers voted on them.
Toward the end of the legislative session, he realized the question of the amendments’ description may be more complicated than most people assume.
According to state statute, the Constitutional Amendments Publication Commission must, 75 days before the election, “prepare an explanation of the amendment, revision or new constitution in simple and commonly used language. The explanation shall include a short caption reflecting the contents, that shall not include a numerical or other reference of order, to be used on the ballot and the printed summary.”
That committee consists of Paul Coble, current legislative services officer for the General Assembly, Attorney General Josh Stein and Secretary of State Elaine Marshall. Stein and Marshall are two Democrats who’ve frequently criticized the current legislative majority.
That could mean that the language describing the amendments may end up being more detailed and less euphemistic than the names of the bills that introduced them, Cohen said.
“I think the title of the ballot question that has the most spin…is this one about the ‘bipartisan board of elections,’” Cohen said. “The biggest change there is in the change in the balance of powers. The ballot question completely omits the most important part of the amendment, I think.”
That proposed amendment has come under fire not just because it restructures the state board of elections, but because it wades into an ongoing legal fight the General Assembly has now had with the last two governors – one a Republican, one a Democrat. If passed, the General Assembly would enjoy vast appointment powers for boards and commissions statewide – including appointments now made by the governor.
“I jokingly said that as a ballot title, the caption could be something like ‘Move Executive Powers to the General Assembly,’” Cohen said.
Cohen has a few other concerns with the process – and the details – of the amendments.
“I would say that this is the largest number of controversial amendments ever to be on the ballot since 1971,” Cohen said. “And five of the six amendments have no implementing legislation – not in the body of the bills that put them on the ballot and not in any other bill that was passed this session.”
One of the amendments – capping the state income tax at a maximum of seven percent – would simply change the current tax policy upon approval by voters. It doesn’t need any language explaining how it is to be done, Cohen said.
But the remaining five will actually require legislative language as to how they will be implemented. With the General Assembly adjourned until after the election, voters will be deciding the issues without that language in place.
Cohen says that’s extremely unusual. Of the last 16 constitutional amendments put before the state’s voters, 13 had implementing language in the bills that placed them on the ballot or in bills passed prior to the referendum. Of the remaining three, two either didn’t need the language or repeated statutes already on the books.
“So really only one in the last sixteen didn’t have that language before they were voted on,” Cohen said.
Republican lawmakers have suggested all that can be ironed out when the legislature returns – after the election.
Democrats argued the rushed process just confirms the amendment are unnecessary. They claim they are aimed variously at making end-runs around the courts on partisan battleground issues, concentrating power in the hands of the legislature’s Republican majority or simply turning out the base in November to help prevent the loss of the current GOP supermajority.
“I think all three of those aspects are motivating factors for these,” said Dr. Michael Bitzer, professor of History and Political Science at Catawba College in Salisbury. “The hunting and fishing amendment, for instance – it’s probably not that controversial, but it’s geared toward certain identifying voters who are going to support that.”
In a year that has seen some remarkable Democratic gains in local and state elections nationwide, that amendment is likely to resonate with rural and conservative voters.
It’s likely the same can be said for the Voter ID amendment, one of a series of similar laws conservatives have been pushing nationwide amid cries of rampant voter fraud not borne out by actual studies on the issue.
But it isn’t clear whether that issue will fire up the Republican or Democratic bases more fiercely, Bitzer said.
“Republicans are fully in favor of it and the polling has tended to show majority support,” Bitzer said of a Voter ID law. “But in an environment where Democrats are already angry and energized, does that just add fuel to the fire? And can they make the argument that having a law is one thing, but we don’t know the details?”
It isn’t necessarily unusual for lawmakers to try to settle long-running political fights using something as powerful as a constitutional amendment, Bitzer said. It can be a powerful weapon.
“I think when you have power you want to do everything to try to keep that power,” Bitzer said. “If you have supermajority power and you can enshrine certain governing principles, you will do so before you lose power.”
The political danger for those who do so, Bitzer said, is always that political circumstances are not always as static as the state constitution.
“You have to ask, ‘If you want to concentrate all power into one branch of government, what’s the point of the other two branches?’” Bitzer said. “If you embrace that philosophy of legislative dominance, of legislative supremacy, then when the shoe is on the other foot, don’t expect any forbearance from the opposition party.”