John Locke Update / Research Brief

Two Voter-Approved Constitutional Amendments Face Implementation Challenges

posted on in Law & Regulation, Legal Update, Property Rights
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Earlier this month, North Carolina’s voters considered six constitutional amendment proposals and approved four of them. Two of the approved amendments are straightforward textual changes with no immediate statutory impact, but the others require statutory changes. The complications inherent in implementing those changes may make the General Assembly regret placing the amendments before the voters.

The approved amendments that simply made straightforward textual changes were the income tax cap amendment and the right to hunt and fish amendment. The former merely changes one word in Section 2 (6) of Article V, reducing the existing income tax cap from “ten” percent to “seven” percent. The latter adds a new section (Section 38) to Article I. By its own terms, however, the new section leaves existing statutes and regulations in place and imposes no new burdens on the legislature.

The right of the people to hunt, fish, and harvest wildlife is a valued part of the State’s heritage and shall be forever preserved for the public good. The people have a right, including the right to use traditional methods, to hunt, fish, and harvest wildlife, subject only to laws enacted by the General Assembly and rules adopted pursuant to authority granted by the General Assembly to (i) promote wildlife conservation and management and (ii) preserve the future of hunting and fishing. Public hunting and fishing shall be a preferred means of managing and controlling wildlife. Nothing herein shall be construed to modify any provision of law relating to trespass, property rights, or eminent domain.

The other two approved amendments—the victims’ rights amendment and the voter ID amendment—are very different. Both require statutory implementation, and, in each case, the process of implementation will present some special challenges.

Prior to the recently approved victims’ rights amendment, the North Carolina Constitution already enumerated the “rights of victims of crime” at Section 37 of Article I. The recently approved amendment modifies Section 37 in several ways. It expands the range of crimes to which the section applies; it removes the phrase “as prescribed by law” from the list of rights, thereby withdrawing the legislature’s power to define those rights; and it imposes some additional limits on victims’ claims:

Nothing in this section shall be construed to provide grounds for a victim (i) to appeal any decision made in a criminal or juvenile proceeding; (ii) to challenge any verdict, sentence, or adjudication; (iii) to participate as a party in any proceeding; or (iv) to obtain confidential juvenile records. …

Nothing in this section shall be construed to restrict the power of the district attorney, or the inherent authority of the court.

It also makes the General Assembly responsible for implementation. “The General Assembly shall further provide, by general law, the procedure whereby a victim may assert the rights provided in this section.” It also stipulates, “The General Assembly may prescribe general laws to further define and implement this section.”

This is not a trivial responsibility. To carry it out, the General Assembly will have to review and revise the existing body of statutory law that deals with victims’ rights, and, as it does so, it will have to consider how best to avoid the pitfalls that other states have encountered with their own victims’ rights laws.  Nevertheless, the challenges that will have to be overcome to implement the victims’ rights amendment are nothing compared to the challenges presented by the voter ID amendment.

The voter ID amendment adds the following passage to both Section 2 and Section 3 of Article IV of the North Carolina Constitution:

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

Clearly, the General Assembly will have to enact those laws, and when it does, it will have to deal with four complications. The first is that there is a previously enacted voter ID law on the books. The second is that the previously enacted law has already been held to be unconstitutional by the United States Court of Appeals for the Fourth Circuit. The third is that the Democratic Party’s institutional allies are almost certain to mount a legal challenge to whatever law the General Assembly may enact pursuant to the voter ID amendment. And the fourth is that Attorney General Josh Stein cannot be relied upon to defend the enacted law against such a challenge.

The first two complications can be dealt with simply by repealing the existing law, but the third and fourth present a more difficult challenge. In a recent Carolina Journal article, Dan Way discusses those challenges in detail and passes on some expert advice about how to deal with them.

After acknowledging that, “The state Democratic attorney general cannot be trusted to carry out his legal and constitutional duty to defend the law,” Hans von Spakovsky, senior legal fellow at the Heritage Foundation and former member of the Federal Elections Commission, says:

“I would recommend that the state legislature include a provision in any enabling legislation that gives the legislature the power to appoint a private lawyer as a special assistance attorney general who will have total authority — without supervision by the attorney general — to defend any lawsuits filed against the voter ID law and/or referendum.” …

Von Spakovsky seems confident that, if properly drafted and diligently defended, a new ID law can ultimately pass constitutional muster:

“With the newest members of the U.S. Supreme Court, I think any challenge against the law will ultimately fail before the court in the same way that the court previously upheld Indiana’s voter ID law in 2008.”

And to make sure the law is, in fact, properly drafted, Greg Wallace, a constitutional law expert who teaches at Campbell Law School, offers this suggestion:

“If I were the North Carolina General Assembly I would get that Supreme Court decision upholding voter ID in Indiana, and I would study that decision, and the restrictions that were upheld very carefully, and that’s what I would enact.”

Let’s hope the General Assembly takes the advice offered by von Spakovsky and Wallace, and let’s hope that implementation of all of the recently approved constitutional amendments goes smoothly.

Jon Guze is Senior Fellow in Legal Studies at the John Locke Foundation. Before joining the John Locke Foundation, Jon practiced law in Durham, North Carolina for over 20 years. He received a J.D., with honors, from Duke Law School… ...

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