[EL] N.C. Constitution

[Josh Douglas]

There has been some question about the North Carolina Constitution and its
Supreme Court, and what will happen in a state constitutional challenge to
the new election bill.

There are two relevant provisions of the state's constitution.  First, in
its "Declaration of Rights," the Constitution provides that "*All elections
shall be free*." N.C. Const. art. I, § 10.  Second, in Article VI, which is
about "Suffrage and Eligibility to Office," the Constitution states, "*Every
person born in the United States and every person who has been naturalized,
18 years of age, and possessing the qualifications set out in this Article,
shall be entitled to vote at any election by the people of the State,
except as herein otherwise provided*."  N.C. Const. art. VI, § 1.  The
Constitution then sets out two general provisions for the qualifications of
voters:  residence in the state for one year and precinct/election district
for 30 days (with the ability of the legislature to reduce this time period
for presidential elections), and disqualification of felons. N.C. Const.
art. VI, § 2.  Finally, the Constitution gives the state legislature fairly
plenary power with respect to registration:  "*Every person offering to
vote shall be at the time legally registered as a voter as herein
prescribed and in the manner provided by law.  The General Assembly shall
enact general laws governing the registration of voters*."  N.C. Const.
art. VI, § 3.

I think that there is a very strong argument that several of these
provisions are contrary to the state constitution -- particularly the ones
that do not relate specifically to registration.  However, the grant of
authority to the legislature to enact "general laws" governing the
registration of voters suggests that the legislature has the power to, for
example, take away the high school registration provision.   The question
in that case is whether the law infringes on the grant in section 1 that
"Every person . . . shall be entitled to vote."  Reducing the ability of
seventeen-year-olds to preregister is bad policy, but it probably does not
infringe the grant of the right to vote.  But I think there is a strong
argument against the voter ID provision under this same provision.  In
addition, although there is no North Carolina precedent on point, other
state courts have construed state constitutional language mandating "free"
elections to provide greater voter protections.

Virtually all state constitutions have similar provisions that explicitly
grant the right to vote to its citizens.  The states that choose to
interpret their constitutions independently of the U.S. Constitution and
U.S. Supreme Court precedent have typically been more vigilant about
protecting voting rights and striking down laws that make it harder to vote
for some people.  See, e.g., the Wisconsin and Missouri voter ID litigation
(although one of the two Wisconsin trial court decisions was reversed on
appeal).  The states that "lockstep" their state constitutions with the
U.S. Constitution typically have upheld these kinds of laws.  (For an
argument against the lockstepping approach for state constitutional grants
of the right to vote, see my
forthcoming<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2234762>article
on
*The Right to Vote Under State Constitutions*.)

North Carolina's Court of Appeals has acknowledged, in a case involving
ballot access for minor political parties, that "The people of the State of
North Carolina chose to have a constitution which, in contrast to the
United States Constitution, specifically governs suffrage and eligibility
to office."  *Libertarian Party of North Carolina v. State*, 688 S.E.2d 700
(N.C.App. 2009).  This suggests rejecting the lockstep approach and not
simply following federal precedent.  As far as I can tell, however, that
case is the only time any North Carolina court has even cited the state
constitution's grant of the right to vote.  So this is really an open
question.

As to North Carolina's Supreme
Court<http://en.wikipedia.org/wiki/North_Carolina_Supreme_Court>,
it is a seven-member "nonpartisan" court.  Currently there are four females
and three males; one of the females is African-American.  Based on my very
crude and quick internet research on each Justice, it appears that there is
a 4-3 ideological split on the court, with four Justices who lean
Republican and three who lean Democratic.  Interestingly, North Carolina
had a fairly successful public funding program for state judicial offices
(which this bill eliminates), although I do not know how many of the
current Justices used the program in their election and whether that would
impact their judicial approach.  The Chief Justice, who leans Democratic,
is subject to mandatory retirement in 2014; three of the other Justices
(two who lean Democratic and one who leans Republican) are up for
reelection in 2014.

This is all to say that there is a significant question as to what the
North Carolina Supreme Court would do when faced with a state
constitutional challenge to this new law.  If the court follows the route
of the other "conservative" state Supreme Courts and locksteps its state
grant of the right vote with federal protection, then it is likely that
most of this new bill would survive.  There also could be a change in
membership before the case makes its way up to the state's highest court.

Josh

-- 
Joshua A. Douglas
Assistant Professor of Law
University of Kentucky College of Law
620 S. Limestone
Lexington, KY 40506
(859) 257-4935
joshuadouglas at uky.edu
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