Power Politics and the Struggle for North Carolina’s Constitution

North Carolina is no stranger to partisan battles. The state attracted international press and controversy in 2016 for House Bill 2, otherwise known as HB2, which overturned a local Charlotte law protecting the rights of transgender individuals to use the bathroom matching their gender identity. While HB2 has since been repealed, political divisions in North Carolina have only intensified.

This midterm election cycle, in addition to close races like North Carolina’s 9th district, voters must decide on six amendments to the North Carolina state constitution. Voting on state constitutional amendments is not uncommon in the US; this year, for example, Floridians will vote on Amendment 4, which would restore the voting rights of felons. But the number of proposed amendments in North Carolina, and the changes they could bring, is somewhat unusual. Proposed and endorsed by the Republican-controlled North Carolina state legislature and condemned by the Democratic governor, these six amendments have become a point of tense partisan debate in this deeply divided state.

The Political Landscape of a Southern "Swing State"

North Carolina has long been described as a “purple” or “swing” state, meaning that it does not follow a pattern of voting overwhelmingly for either Republicans or Democrats. Traditionally, it’s been a moderate outlier as a southern US state, a region which generally votes for Republicans at the federal and state levels. For most of the 20th century, the governorship and the state legislature in North Carolina were often mixed or under Democratic control, giving it the reputation of being a “progressive” Southern state — even if this ignores its history of racial discrimination, from slavery to the Jim Crow era to the present.

In the last ten years, however, politics in North Carolina has changed drastically. While Barack Obama won North Carolina by a slim margin in 2008, in the 2012 general election, Republicans won a large majority in the state legislature and Republican Pat McCrory won the governorship. This election marked the first time in decades that a single party controlled both North Carolina’s legislative and executive branches — and the first time since just after the Civil War that Republicans controlled both branches of government.

In 2016 Democratic candidate Roy Cooper narrowly won the governorship. This change in leadership has led to increased partisanship and tensions between the now Democratic executive branch and the still Republican-controlled legislature. In December 2016, a little over a month after the 2016 election, the Republican-controlled state legislature passed legislation limiting the governor’s power over election boards and the university system. Since being sworn into office in January 2017, Governor Cooper has vetoed 25 bills, and the state legislature has overridden 20 of those vetoes using its supermajority.

All members of the North Carolina state legislature are facing reelection this November. With this new political dynamic in mind, Republican legislators are trying a new approach in their fight with Governor Cooper. A strategy they hope will also drive voter turnout: constitutional amendments.

North Carolina’s Proposed Constitutional Amendments

In addition to the US federal constitution, each state has a written constitution to dictate state government and laws. While the US Constitution or the US Supreme Court override state constitutions, states can use their constitution to regulate issues not currently addressed by federal law. In North Carolina, three-fifths of the state House and Senate must vote and approve amendments to the constitution, which then must be put to a statewide vote. If a majority of North Carolina voters support the amendment, it then becomes part of the state constitution and, therefore, state law.

With a current supermajority that may not exist after 2018, Republican lawmakers in the North Carolina state legislature proposed six new constitutional amendments this past summer, just five months before the midterm elections. Democratic Governor Roy Cooper has spoken out against the amendments, and he vetoed a bill related to the ballot language describing the amendments, which the legislature then overturned. The governor also filed litigation against two of the revised amendments, which the North Carolina Supreme Court overturned.

North Carolinians will vote on the following amendments this midterm election:

1. Right to Hunt, Fish, and Harvest Wildlife: This amendment would constitutionally protect the right of North Carolinians to hunt, fish, and harvest wildlife. The language comes from a suggested template by the National Rifle Association (NRA).
2. Victim’s Bill of Rights (Marsy’s Law): This amendment would “strengthen protections for victims of crime; to establish certain absolute basic rights for victims; and to ensure the enforcement of these rights.” A California group responsible for similar legislation, called Marsy’s Law, supports the amendment. Similar laws are on the ballots in other states like New Hampshire. Of the six proposed amendments, this one appears to be the least controversial, as it merely expands upon the list of victim’s rights already included in the North Carolina constitution.
3. Cap on State Income Tax Rate: This amendment would cap the state income tax rate at 7%. Although the current state income tax rate is around 5.5%, the current maximum possible rate is 10%. If this amendment passes, state income tax increases beyond 7% will be unconstitutional. (This state income tax rate is separate from, and in addition to, federal taxes that all US residents pay).
4. Require Voter ID To Vote: This amendment would require North Carolina voters to provide photo identification to vote in person. This comes after years of political fighting in the state over voter ID laws. Recently, the US Supreme Court ruled that North Carolina’s proposed Voter ID law was unconstitutional because it, “target[ed] African-Americans with almost surgical precision” to suppress their ability to vote. It’s unclear how this amendment would differ from that overturned law. The current language does not stipulate which type of identification will or will not be accepted, but the state legislature would ultimately be the one implementing the law.
5. Selection for Judicial Vacancies: This amendment would allow the legislature to play a role in the selection process of judges by allowing the state legislature to nominate at least two nominees for vacancies. The governor would then choose a candidate from these nominees. Currently, filling judicial vacancies is the sole duty of the governor.
6. Bipartisan State Board of Ethics and Elections Enforcement: This proposed amendment is part of a years-long battle between Democratic Governor Roy Cooper and the Republican-controlled state legislature over the power to control the State Board of Ethics and Elections Enforcement. The current board is made up of nine members, eight appointed by the governor from a list of nominees supplied by both Democrats and Republicans as well as a single member appointed solely by the governor. The proposed amendment would remove the non-partisan member and reduce the board from nine to eight members. The result would likely be “a 4-4 partisan deadlock vote,” hindering the ability of the board to oversee election laws, enact early voting, or enforce campaign finance laws.

A State Government Divided

Overall, many of these amendments seek to take power away from the governor in order to strengthen the role of the North Carolina state legislature. Others, such as the amendment on the income tax rate or voter ID laws, are a way to circumvent the anticipated governor’s veto on the issue by putting it up to a popular vote.

Reactions to these six amendments have been mixed and polarized. A campaign called “Nix All Six” is advocating for North Carolinians to reject all six amendments. Meanwhile, a bipartisan group of former North Carolina governors has backed the “Stop Deceptive Amendments” group, which encourages people to vote against the amendments limiting the governor’s power. The NC Republican Party, however, is urging voters to approve all six amendments, while advocates of specific amendments, such as the Victims’ Rights Amendment, argue that each amendment should be considered for its individual merit.

Meanwhile, many voters have no clue that the amendments will even be on the ballot on November 6th. Those voters who are aware may still be unsure what the proposed amendments would actually do. Partisan divisions only exacerbate confusion on the issues, resulting in a lack of debate on the implications of these amendments. It also highlights the divided nature of North Carolina politics.

Democratic Engagement or Power Play?

What is the strategy behind putting controversial constitutional amendments up for referendum in a midterm election? At first glance, these referendums could be viewed as a way to engage the public in deciding on contentious issues. But the partisan struggle to get these amendments on the ballot indicates that these proposed constitutional changes have broader implications in the midterm elections.

Aside from attempting to make significant changes to state-level policies, these amendments could be a tool to generate voter turnout. In general, voter turnout is much lower in midterm elections than in presidential elections. The party that benefits from midterm turnout, however, is slightly more nuanced. Republicans generally tend to have higher turnout in midterm elections. However, if the president is a Republican during the midterms, that turnout advantage for Republicans is severely diminished. Voters often use the midterms to express dissatisfaction with the president’s party, regardless of the president’s party affiliation. Researchers call this phenomenon the “presidential penalty.”

Given the current political climate, North Carolina Republicans cannot necessarily rely on high Republican-voter turnout. Motivating people to vote on specific issues, such as these constitutional amendments, could work in their favor. Data backs up this idea. Referendums can increase turnout in midterm elections by significant margins. California has been using this strategy for decades to increase voter turnout among its largely Democratic-voting population.

Republicans in North Carolina are therefore hoping to rally their base and increase Republican-voter turnout with many of the proposed amendments. This perspective explains why some amendments seem to be more symbolic than contentious — like the amendment on the right to hunt and fish. A large portion of people in the US engages in wildlife-related activities like hunting and fishing. It is an aspect of the 2nd Amendment that is easy to garner support for, especially in a state with at least 1.5 million fishers and 335,000 hunters.

The second motivation is to use the midterms as an opportunity to diminish the power of the governorship. This plan, however, has the potential to backfire. All five of North Carolina’s living governors, both Republicans and Democrats, have publically condemned the amendments on judicial vacancies and the State Board of Ethics and Elections Enforcement. Former Republican Governor McCrory has been especially vocal, describing the amendments as “a blatant power grab.”

In a swing state like North Carolina, there is always the risk that Democratic voters will be galvanized to vote against these issues. With condemnation from both sides of the aisle, however, the proposed amendments could become a focal point of an already contentious midterm election in a very purple state. If voters do turn out to punish the party in power, namely Republicans at the federal and state level, this plan by the North Carolina legislators could backfire.