Jurisprudence

The North Carolina GOP’s Plan to Deceive Voters About Its Radical Ballot Measures

Step 1: Call for a special legislative session.

Voters stand behind electronic machines in a rec center gym.
Voters cast their ballots inside the Hawthorne Recreation Center near uptown Charlotte, North Carolina, on Nov. 8, 2016.
Logan Cyrus/AFP/Getty Images

In November, North Carolina voters will have an opportunity to approve six constitutional amendments proposed by the state’s Republican-dominated Legislature. These amendments range from silly to atrocious, and a majority are designed to prevent the state’s Supreme Court and Democratic governor from protecting voting rights. But voters may have little idea what any of the amendments do, because Republicans have hatched a plan to give themselves the power to write the ballot language without any input from Democrats.

The North Carolina GOP decided to alter the state constitution for a few reasons. First, they hoped to drive up Republican turnout by tossing some red meat to the base. Second, they want to stop Democratic Gov. Roy Cooper from expanding access to voting rights by stripping him of his constitutional authority to oversee state elections. Third, and relatedly, they want to prevent the left-leaning state Supreme Court, and the rest of the judiciary, from striking down GOP-sponsored voter suppression laws. (A federal appeals court struck down Republicans’ previous voter ID law, ruling that it appeared to “target African Americans with almost surgical precision.”)

To achieve these goals, Republicans put forward two proposed amendments that target the franchise. The first compels voters to show ID before casting a ballot but does not explain what kinds of ID are necessary and what exceptions might apply. (Legislative Republicans will fill in those details if voters approve the amendment.) The second would prohibit the governor from appointing commissioners to the powerful state elections board, instead giving that task to legislative leaders. It would also require the board to be made up of four Democrats and four Republicans. Currently, the governor is constitutionally empowered to appoint a majority of commissioners from his own party. The amendment, then, would create a perpetually deadlocked election board with no power to expand suffrage under Democratic governors.

A third amendment would give the Legislature authority to whittle down the list of nominees whom the governor could appoint when a judicial vacancy arises. (Republicans have already shrunk the size of the state Court of Appeals to prevent Cooper from filling several vacancies.) A fourth caps the state income tax at 7 percent. (It’s already below 6 percent and scheduled to continue falling.) A fifth creates a constitutional right “to hunt, fish, and harvest wildlife.” And a sixth provides rights to crime victims and their families.

That last amendment, known as Marsy’s Law, is almost as dangerous a threat to civil liberties as the voter suppression proposals, though it draws more bipartisan support. Bankrolled by billionaire Henry Nicholas, the Marsy’s Law campaign attempts to enshrine “victims’ rights” in state constitutions. But as the American Civil Liberties Union has explained, these measures undermine due process, limiting the ability of the accused to obtain evidence proving their innocence and develop their defense at trial. If this amendment passes—and it probably will—the legal presumption of innocence will be turned upside down.

But Marsy’s Law, much like the hunting and income tax amendments, is not the centerpiece of the GOP’s constitutional revisions. The amendments stripping Cooper of his power and implementing voter ID are the heart of this scheme, and Republicans are determined to pass them by any means necessary.

That includes lying to voters about what the new laws would do. In 2016, the GOP Legislature passed a bill governing the summaries of constitutional amendments that appear on the ballot. These summaries, known as “captions” or “titles,” are vitally important, because they introduce many voters to the proposals for the first time. That 2016 law tasked a three-member panel—the attorney general, the secretary of state, and the legislative services officer—with writing the captions. At the time, the composition of this panel would’ve skewed 2–1 Republican.

Just months later, though, Democrat Josh Stein won the state attorney general’s race. The secretary of state is still Elaine Marshall, a seemingly unbeatable Democrat who has served since 1996. Only the legislative services officer, Paul Coble, is a Republican. Now that Democrats have a 2–1 edge on the panel, Republican House Speaker Tim Moore has decided that they might “misrepresent and politicize” the captions. So Republican leadership took the highly unusual step of calling a special legislative session to change the 2016 law before ballots are printed and give themselves authority over the phrasing of the amendments. It’s quite unusual for a Legislature as a whole to determine ballot titles, which do often tilt the outcome of elections. Many states rely on nonpartisan commissions or election officials to draft this language. Regardless, North Carolina’s unorthodox new bill is sailing through the Legislature.

Republicans have already proffered their preferred captions—and, unsurprisingly, they are highly misleading. The election board amendment, if passed, would seize an immense amount of power from the governor. But you’d never guess that from the GOP caption, which speaks vaguely of “clarify[ing] the appointment authority of the Legislative and Judicial Branches.” The amendment shrinking the governor’s ability to fill judicial vacancies is framed as “implement[ing] a nonpartisan merit-based system.” A voter with little background knowledge of these measures might assume that they tinker with the administration of elections and the judiciary. She would never guess that they fundamentally overhaul the balance of power between the branches of government, aggrandizing the Legislature’s authority at the expense of the governor, and at the expense of citizens’ right to vote.

But thanks to a racial gerrymander that has been ruled illegal, Republicans hold a supermajority in both houses and will likely override Cooper’s inevitable veto. It will fall on voters to educate themselves about the amendments before they go to the polls, and to spread the word that, however benign they might seem, these proposals represent yet another effort to slash the governor’s power in pursuit of disenfranchisement.

Republicans may also have an ulterior motive for reconvening in a special session. The state GOP has engaged in extensive maneuvering to prevent Democrat Anita Earls from winning a seat on the state Supreme Court in this November’s election. Republicans hoped that multiple Democratic candidates would challenge the Republican incumbent, potentially splitting the vote. While no liberal challenged Earls, a Democrat, Chris Anglin, switched his party registration at the last minute to run as a Republican. Now it’s looking like the GOP vote could get split, giving Earls a clear path to victory.

On Tuesday, however, Republican Senate Leader Phil Berger announced that the Legislature might seize upon the special session to pass a law targeting judicial candidates who changed their party registration before filing. The obvious goal of this measure is to keep Anglin out of the race as a Republican—yet another transparent attempt to keep Earls off the bench. (It’s unclear whether such a move would be legal, and Anglin could fight it in court.)

The whole mess is giving civil liberties advocates flashbacks to the state’s last legislative coup, in which the GOP tried to commandeer the governor’s control over elections, only to be blocked by the state Supreme Court’s Democratic majority. Sarah Gillooly, director of political strategy and advocacy for the North Carolina chapter of the American Civil Liberties Union, told me on Tuesday that the state’s legislative leaders “have an ugly and well-documented history of seeking to restrict voting rights for some of our state’s most marginalized voters.” The new amendments, if passed, could disenfranchise “hundreds of thousands of qualified voters” who are disproportionately “black, rural, working class, disabled, or elderly,” Gillooly said. And in November, thanks to deceptive ballot captions, voters might not even understand that they are authorizing this electoral “power grab.”

North Carolina Republicans’ machinations do not reflect any particular political or legal philosophy. Rather, they’re the work of a party that’s desperately trying to undermine equal access to the ballot in order to entrench itself in power. When raw power is all that matters, democracy becomes dispensable. And unless voters become invested in the battle over the state constitution, North Carolina will continue its descent into one-party rule.