North Carolina lawmakers rushed back to the state capital with less than 24 hours notice last week because Republicans called for a special session to block voters from receiving more information about a wide range of proposed changes to the state constitution during this fall’s election.
The proposed changes to the constitution deal with a range of important subjects that can affect voter access to the polls and impact the trajectory of state courts. This includes adding a voter photo ID requirement and restricting the ability of the state’s Democratic governor to fill vacancies on state courts and appoint people to the state election board.
Current state law requires a bipartisan commission to write a short caption to appear on the ballot summarizing those amendments, but Republicans passed a bill during the July 23 emergency session that blocked those captions from appearing on the ballot. Gov Roy Cooper (D) vetoed the bill on Friday, but Republicans have a supermajority in the legislature and are expected to override it in a vote on Saturday.
The 3-person commission responsible for writing the captions, which are just a few words long, consists of the secretary of state, attorney general and the legislative services officer of the general assembly. Currently, Democrats outnumber Republicans on the panel 2-1. Republican legislators, who gave the commission power to write constitutional amendment captions in 2016, said the new law was needed because Democrats would write them to sway voters to vote the proposals down.
Deb Butler, a Democrat in the North Carolina General Assembly, said the move to block the captions represents a GOP attempt to ensure the amendment passed ahead of a midterm election in which they were wary of losing their supermajority. The constitutional amendments, as currently written on the ballot, will be confusing to voters, she said.
“We owe it to the voters to do the best we can to give them accurate and explanatory information. And we know that voters, and people in general, they don’t read laws every day,” Butler said in an interview. “They don’t understand the double negatives and the odd manner in which they’re constructed. A caption, when accurately and done with objectivity is critically helpful to the voter.”
Republicans said the special session was needed because the commission would be subject to pressure by outside groups to write the captions a certain way. They didn’t provide evidence for their claim.
“The General Assembly already approved short titles of the constitutional amendments that accurately describe their impact and must prevent outside attempts to politicize what should be a quick and straightforward administrative process by the commission,” House Speaker Tim Moore (R) said in a statement when he called the special session.
“It’s one party cramming it down the throat of the other one, I don’t know how anyone would call that bipartisan. Democrats didn’t participate and were given no voice in any of this. So to call it bipartisan is like a bad joke.”
Critics say the language of some of the amendments obscures how the proposals will take power away from the governor.
“At least two of them are stated in a series of presumptions are either misleading or have a series of presumptions on fact,” said Gerry Cohen, who served as legislative counsel to the North Carolina legislature for nearly four decades. Cohen specifically pointed to the proposals dealing with appointments to the state election board and the governor’s ability to fill judicial vacancies.
The latter proposal asks voters whether they want to change the way vacancies are filled on state courts. The governor currently can appoint judges to fill court vacancies on his own, but the amendment would make it so the legislature would propose two candidates that the governor would then choose from. The current ballot language asks voters if they want to adopt “a nonpartisan merit-based system that relies on professional qualifications instead of political influence when nominating Justices and judges to be selected to fill vacancies that occur between judicial elections.”
In a memo to the state board, Cohen proposed captioning the amendment on the ballot by saying it “Limits Governor’s power to fill short-term vacancies as justice and judge.” He tweeted his proposed caption, which apparently got the attention of the North Carolina Senate’s top Republican.
“I thought I was just saying something factual,” Cohen said.
The proposed state election board amendment would also strip the governor of his ability to appoint officials. Currently, the governor can appoint the commissioners on the state’s elections board and choose a majority from his own party. The proposed amendment would give that power to lawmakers and require them to appoint a board with four Republicans and four Democrats.
The language that will appear on the ballot asks voters if they want to create a “bipartisan Board of Ethics and Elections to administer ethics and election laws.” Cohen said that language was not accurate and the measure should have a caption to reflect that it would “transfer powers of the governor to the general assembly.”
“It’s one party cramming it down the throat of the other one, I don’t know how anyone would call that bipartisan,” he said. “Democrats didn’t participate and were given no voice in any of this. So to call it bipartisan is like a bad joke.”
Secretary of State Elaine Marshall (D) sent a scathing letter last week to the leaders of the North Carolina legislature last week disputing that the panel would use its caption-writing power to sway voters.
“I have had no outside groups or pressure tactics aimed at me or used against me. None. If either of the two commissioners have received such pressure, they have not indicated such to me,” she wrote. “The commission’s job is not to promote or oppose proposed amendments. The Commission did not write these amendments and takes no position on them.”
Since North Carolina lawmakers won’t formally override Cooper’s veto until Saturday, The Constitutional Amendments Publication Commission met Tuesday morning in what was supposed to be a meeting to approve the ballot captions. But the lone Republican on the panel did not show up for the meeting, meaning there wasn’t a quorum to vote.