N.C. legislature targets constitution to grab power, impose voter ID

State and federal courts have protected the rights of North Carolina voters from discriminatory voting laws in recent elections, but state legislators have approved a series of constitutional amendments to be placed on the ballot in November that could pave the way for voter suppression and tilt the balance of state power further toward the gerrymandered legislature.

One proposed amendment would put a voter ID requirement in the state constitution. Others would let the N.C. General Assembly pick state election officials, the heads of executive branch agencies, and certain judges.

Rev. Anthony Spearman of the state NAACP testified at a hearing last week that the voter ID amendment is intended to "eliminate and chill the voices of certain voters," citing the disproportionate impact of voter ID laws on African Americans and the poor. Spearman said the vaguely worded amendment would "enshrine discrimination in the constitution" without telling voters exactly what they're voting for.

The proposed amendment states, in its entirety, "Voters offering to vote in person shall present photo identification before voting. The General Assembly shall enact general laws governing the requirements of such photographic identification, which may include exceptions."

Legislators considered a proposal to delay the effective date of the amendment until 2019 to avoid the potential for a lame-duck Republican legislature to decide which voter IDs are acceptable but ultimately rejected it.

A federal court struck down the General Assembly's 2013 voter ID law in 2016, finding that legislators had targeted black voters "with almost surgical precision." The court outlined how legislators sought data on which identifications black voters possessed and then excluded those identifications from the list of acceptable documents.

When asked if there was anything in the voter ID amendment that would prevent the legislature from simply rewriting the old law, Rep. David Lewis, the Republican chair of the House Elections Committee, said that "the short answer would be no." However, Lewis expressed confidence that this time the legislature would enact a law that would not be ruled unconstitutional.

The Voter Integrity Project, which has claimed without evidence that non-citizens have been voting in North Carolina for years, voiced support for the amendment at the hearing. But Tomas Lopez of the voting rights advocacy group Democracy North Carolina warned that people would face hardships in getting an acceptable ID. The amendment, he said, would not help create "an election system that people believe in."

An audit of the 2016 general election by the N.C. Board of Elections and Ethics Enforcement found only one case of in-person voter fraud — the problem addressed by voter ID laws — out of nearly 5 million votes. When the 2013 voter ID law was in place during the 2016 primary election, black and Asian voters were disproportionately likely to be denied access to the ballot due to lack of ID.

Republican supporters of the voter ID amendment point out that North Carolina is the only state in the South without a voter ID requirement. But only four of the 13 Southern states have voter ID laws that the National Conference of State Legislatures considers "strict" because they require voters without an acceptable ID to take additional steps to ensure that their votes are counted.

In Florida, for example, those without a valid ID can cast a provisional ballot and have it counted without any further action on the voter's part. Under South Carolina's law, a voter registration card is an acceptable form of identification. Only one Southern state — Mississippi — has a voter ID mandate in its constitution. It was approved in 2012, though three-quarters of non-white voters opposed it.

This year, Arkansas will also vote on a constitutional amendment to require a photo voter ID — but that state's proposal provides more detail and protections than North Carolina's. It would require the state to offer valid IDs free of charge and allow a person without the required ID to cast a provisional ballot, which the amendment says "shall be counted" if the voter later certifies their identity.

The North Carolina amendment sets out no such process, leaving it up to legislators to decide how to handle provisional ballots. The state's 2013 law made it harder to have such votes counted.

Unseparating powers

The North Carolina General Assembly has also proposed a radical change to the state constitution's separation of powers clause with amendments that would transfer powers from the governor to the legislature and overturn court rulings that limited legislative authority.

One of the proposed amendments would give the legislature power to choose members of the state elections board. Until this year, the governor appointed elections board members. But in March, the legislature passed a law limiting the governor to choosing members from lists of nominees selected by the Republican and Democratic parties, with those members then nominating two party-unaffiliated members, one of whom the governor would then select. Gov. Roy Cooper (D) is currently challenging that law in the courts.

Another amendment on the November ballot would allow the legislature to "control the powers, duties, responsibilities, appointments, and terms of office of any board or commission" established under state law. This would drastically change the balance of constitutional power.

When North Carolina became a state in 1776, its constitution said "that the legislative, executive and supreme judicial powers of government, ought to be forever separate and distinct from each other." This sentence has remained in the constitution ever since, with only slight changes; the proposed amendment would add language to this separation of powers clause for the first time. This would give the legislature unprecedented control over the executive branch.

When a post-Civil War constitutional convention rewrote the state constitution in 1868, it maintained the same separation of powers. It also imposed new limits on the power of the legislative branch. In his book "Understanding State Constitutions," G. Alan Tarr said that limiting legislative power was a trend in the 19th century in response to legislative scandals and excesses.

For example, North Carolina's 1868 constitution transferred the power to choose judges from the General Assembly to the voters. But one of the proposed amendments would alter that longstanding precedent and give North Carolina legislators a say in choosing certain judges. Under the amendment, when a judge leaves the bench before their term's end, the legislature would select at least two potential replacements from a list of candidates deemed "qualified" by a merit selection commission, and the governor would choose one. The commission would be chosen by the governor, legislature, and chief justice, with no branch of government getting a majority of the appointments.

Republican legislators have referred to this as a "merit selection" system, but the merit selection commission's only job would be weeding out unqualified candidates. In true merit selection systems, the commission sends a list of potential appointees to the governor. Under the proposed North Carolina amendment, that power does not lie with the commission but with the legislature.

Democratic state Sen. Jeff Jackson said the merit selection commission is "a veil to cover up what's really happening here, which is a massive transfer of power from the governor to the General Assembly." And Democratic Rep. Darren Jackson raised concerns that the amendment could enable a "court packing" scheme: If a Republican wins this November's state Supreme Court election, the lame-duck legislature could add two seats to the court and use the authority granted by the amendment to quickly fill those judicial "vacancies," creating a new conservative majority on the court. A similar scheme was floated after the 2016 election.

The proposal comes amid a broader push by the legislature to gain more control over the judiciary. Last year, for example, North Carolina legislators considered a constitutional amendment that would have given them the power to fill all the judicial seats in the state — not just vacant ones. At the time, Facing South discussed how the state had abandoned legislative selection of judges during the post-Civil War Reconstruction period:

The 1868 Constitution generally gave the legislature less power, shifting more to the governor and voters. The delegates to the convention rejected a proposal to preserve the state's system of letting the legislature choose judges. Abraham Galloway, a black delegate who had returned to North Carolina after fleeing to Pennsylvania to escape slavery, called the then-existing judiciary "a bastard born of sin and secession." The constitutional convention wanted new judges chosen in elections that were now open to African-American and poor white men — not judges picked by the Confederate legislature.

The legislature eventually backed down from that proposal after voters spoke out against it.

Voting rights advocates have pledged to undertake a public education campaign to inform voters about the impact of the amendments. Meanwhile, the racial justice advocacy group Color of Change has called on Apple and Amazon — two giant tech companies that have considered moving into North Carolina — to publicly oppose the voter ID measure.

"North Carolina looks increasingly like the epicenter of a growing national conversation about voting rights that will only intensify," said Brandi Collins with Color Of Change. "Using voter ID, cuts [to] early voting, and racialized gerrymandering — the NC GOP is testing the bounds of legality by trying every possible means to restrict access for Black voters."