[EL] N.C. Constitution

[Robbin Stewart]

Excellent post Josh. I went to my local law library today to look up these
sections in an annotated N Carolina stautes, but they didn't have one. I
haven't found one online, does anybody know if there's an annotated N
Carolina constitution or statutes online somewhere google missed? I do not
have westlaw or that sort of thing.

I've been asked to do a draft of an amicus brief for this case by the
Marion County [Ind.] Bar Association. I'm open to other organizations
joining in, and co-authors or researchers.

The omnibus bill had a number of provisions that are generally bad, from a
democracy canon point of view. But (if the press summaries are right; I
haven't read the bill yet) I was glad to see "stand by your ad" repealed.
 That was, in my view, violative of both constitutions.


On Tue, Aug 13, 2013 at 10:43 AM, Josh Douglas <joshuadouglas at uky.edu>wrote:

> 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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