Opinion: CJ Opinion

The literacy test should be removed from the North Carolina Constitution ASAP

North Carolina has a literacy test for voting enshrined in its constitution. The General Assembly should put a constitutional amendment to repeal it on the next possible date: the 2022 primary.

Article VI, Section 4 of the North Carolina State Constitution states: “Every person presenting himself for registration shall be able to read and write any section of the Constitution in the English language.” The section is worded innocuously, and the U.S. Supreme Court ruled in Lassiter v. Northampton County Board of Elections (1959) that it is not racially discriminatory in violation of the 15th Amendment on its face.

The application of that provision, however, was anything but nondiscriminatory. While a white voter might have been asked to read a relatively simple section, such as Article VI, Section 4 (if he or she were asked to read anything), a black person wishing to vote might have been required to read and demonstrate an understanding of some of the longer and more complex sections of the constitution, sometimes to the point of being asked questions “even legal experts could not answer.”

So why hasn’t the General Assembly tried to remove the literacy test from our state’s constitution?

Two reasons. First, although the state constitution contains a literacy test, it is inoperative. The Voting Rights Act of 1965 functionally banned the use of literacy tests nationwide, a ban that has been upheld by the U.S. Supreme Court. It is part of a long list of state constitutional provisions and laws held preempted by federal law, on issues ranging from voting rights to weight requirements for the sale of bacon. The fact that the literacy test is inoperative has made its removal less urgent, if no less important.

Ridding North Carolina’s Constitution and General Statutes of archaic provisions such as the literacy test would clarify the first principles on which our laws are based. It is also part of the reasoning behind the John Locke Foundation’s support for updating and clarifying North Carolina’s criminal code.

Second, the General Assembly did try to remove the literacy test from the NC Constitution, but it failed.

In 1969 the General Assembly proposed an amendment to the NC Constitution to bring it formally in line with federal law by removing the literacy test. Voters, however, rejected that amendment in a statewide referendum in 1970 with 56 percent opposed (the vote was 279,132 in favor to 355,347 opposed). It has remained an unenforceable part of the state constitution ever since.

There have been several attempts to try to repeal the literacy test since then, although none have made it to a vote of the people. A bill with bipartisan sponsorship, House Bill 148 in the 2017-2018 session, unanimously passed the House but died in the Senate Rules Committee. Most recently, House Bill 314 in the 2019-2020 session never made it out of the House Rules Committee for a floor vote despite also having bipartisan sponsorship.

So, why hasn’t the legislature passed something that so clearly has broad, bipartisan support? Legislative leaders seem concerned that voters might reject the amendment again:

“There’s a worry about what might happen with that” if it were defeated again, said [House Speaker Tim] Moore, R-Cleveland, adding that he has no idea how voters might respond to another ballot question on the issue. “I would hope that amendment would pass overwhelmingly. It’s certainly something I would support.”

Here is a way to lessen the likelihood that voters would reject repealing the literacy test: put it on the ballot in the 2022 primary election.

During a general election campaign, human nature being what it is, politicians and political activists would probably not be able to resist the urge to use an upcoming vote on the literacy test as a partisan bludgeon. That kind of grandstanding by politicians would likely have the perverse effect of driving down support for the amendment. Putting the amendment on a primary ballot would make such partisan attacks less likely and increase the chance for the amendment to pass.

Two years ago, I wrote that the literacy test is “a barnacle on North Carolina’s ship of state that should be scraped off as soon as possible.” Even if its removal would make no practical difference for North Carolinians, it is a step that is long overdue.