On constitutional amendments, N.C. Constitution defers to lawmakers, scholar says

The parties suing to prevent four amendments from appearing in the Nov. 6 general election are facing a high hurdle, a constitutional scholar says.

When it comes to writing ballot language for constitutional amendments, the N.C. Constitution defers to the General Assembly,

“Whereas other states have specific constitutional language or very detailed statutory language that would constrain the legislature in how it crafts ballot language, the North Carolina Constitution and North Carolina statutes are notable for the lack of detailed language that might be used by a court to overturn the legislature’s chosen ballot language,” Wake Forest University political science professor John Dinan told WPTF News Radio 680.  

In an interview Thursday, Aug. 9, Dinan, a researcher and author on state and federal constitutionalism, said 95 state constitutional amendments are on ballots nationwide this year — six in North Carolina.

The N.C. Conference of the NAACP and Clean Air Carolina jointly filed a lawsuit challenging four of North Carolina’s constitutional amendments. Gov. Roy Cooper filed another.

The lawsuits are based on claims the ballot language is false, misleading, and incomplete. Because they are vague or inaccurate, plaintiffs say, they violate the state constitution’s requirement that ballot language properly reflects the intent and consequence of the measure. A three-judge panel has been assigned to hear the cases.

Similar claims of inaccurate ballot language will arise among the 95 constitutional amendments in other states, Dinan said.

“It is very unusual, though, for a court to step in and intervene in a dispute about ballot language and remove it from the ballot,” Dinan said. “The court sets a very high bar for doing so, and understandably so.”

 “For the most part the judges defer to the ballot language,” Dinan said. “Usually they say, ‘There’s disagreements about this. Is it perfect ballot language? Could it be written differently?’ There’s always going to be disputes about that, but the bar is pretty high for a judge to come in and say, ‘This is so inaccurate that I’m not even going to let the people have a chance to vote on it.’ ”

Dinan said he wasn’t surprised to see legal challenges to North Carolina’s constitutional amendments. Changing a constitution is a serious matter and draws passionate opposition.

“One alternative is to defeat them at the ballot box. That takes a lot of organizing, that takes a lot of campaigning, and sometimes a lot of money,” Dinan said.

So opponents might try to block them from ever going before the voters. That’s often a desperation attempt.

“I would view it in North Carolina as more of a Hail Mary type of shot. Let’s give it a run. Let’s see if we can find a court to agree with us,” Dinan said.

It’s clear from a review of North Carolina case law and constitutional and statutory provisions that North Carolina judges have been reluctant to intervene in disputes about the accuracy of legislature-crafted ballot language for constitutional amendments, Dinan said.

They’ve been even more reluctant than judges in other states to remove an amendment from the ballot before an election because of  disagreements over language.

Occasionally the gamble pays off. A circuit court judge in Florida this year issued a temporary halt to a constitutional amendment about greyhound dog racing on grounds the ballot language was inaccurate. But the matter was appealed to the Florida Supreme Court.

The Michigan Supreme Court rejected a request this year to remove a citizen-initiated redistricting-commission amendment from the ballot, Dinan said. A case to remove a tort-reform measure from this year’s ballot is pending in Arkansas.

North Carolina doesn’t resort to regular constitutional amendments, though they were fairly common in the 1970s and 1980s. The last time the state had as many constitutional amendments on the ballot as this year was 1982, when seven were voted on.

“In other states, though, it’s a rather common occurrence, and you’ll also see — not surprisingly — a common occurrence of lawsuits,” Dinan said.

But many states have particular rules governing ballot language and amendments North Carolina does not. Other states might prohibit an amendment from covering multiple subjects, or restrict them to certain categories.

The Massachusetts Supreme Court this year disallowed a progressive income tax amendment from appearing on the ballot because it covered two separate subjects.

Most of the challenges in other states arise from citizen-initiated amendments, and not legislature-referred amendments like those at issue in North Carolina.

“North Carolina really doesn’t have these types of explicit rules and constraints on the legislature and on ballot language,” Dinan said. “The legislature’s given extraordinary amounts of discretion by the North Carolina Constitution and statute.”

It’s unfortunate opponents filed the lawsuits so close to the election, Dinan said.

“Ordinarily you like to get these cases filed and resolved so that you can actually have some deliberation about them,” Dinan said. “This is a little bit unusual that we’re running right up to the deadline in North Carolina.”