Sep 23, 2016

NCGA Week in Review: Constitutional Amendment Spotlight

ICYMI Political News

Attorney General Candidates Debate
On Tuesday evening, the two candidates running to become state’s attorney general taped a “Hometown Debate,” the debate aired on Wednesday evening. Republican candidate Buck Newton, a sitting state senator from Wilson County, and former state senator Josh Stein, a Democrat from Wake County, largely focused on the record of current Attorney General Roy Cooper, who is the Democratic candidate for governor. Newton criticized Cooper for not defending HB 2 and other appeals requested by Republican lawmakers, tying Stein, who served under Cooper as senior deputy attorney general for eight years, to that record. Stein disagreed with Newton’s accusations and highlighted that the role of the attorney general is to defend laws that are not inconsistent with the US Constitution. This was the only debate between the candidates.

To read more about Buck Newton, click here.

To read more about Josh Stein, click here.

Sales and Use Tax Updates
On Tuesday, the Department of Revenue released a new tax opinion that highlights the changes made to revenue laws during the short session.

To read more about economic development and revenue laws passed in 2016, click here.

Spotlight on Constitutional Amendments

History of the State’s Constitution
In 1776 North Carolina adopted the state’s first constitution as an independent state. There have since been two revisions to the state’s constitution, first in 1868 in accordance with the Reconstruction Act, and second in 1971.

The state’s first constitution, like many of its time, placed the majority of power in the hands of the General Assembly, who were the state’s only elected officials, while limiting the power of the governor. In 1835, a state constitutional convention was called to make the first amendments to the constitution, namely fixing the membership of the House and Senate to their present levels, 120 and 50 respectively, and making the governor a popularly elected position.

After the Civil War, the state adopted its second constitution, which gave more power to the people and to the governor. Between 1868 and 1968, 69 amendments were ratified, resulting in what was perceived to be an antiquated and ambiguous document. In 1971, following a study by the North Carolina State Bar, a third constitution was adopted.

Since 1971, North Carolinians adopted 33 amendments and has rejected seven.

How to Amend the NC Constitution
There are two ways to change the constitution in NC, through a constitutional amendment, or by a constitutional convention.

To call a constitutional convention, two-thirds of both the House and Senate must vote in favor of calling a convention, after which the question is posed to voters. Any amendments or revisions made during a constitutional convention are also subject to a statewide vote.

Legislatively referred amendments, the more common form of constitutional changes, can be placed on the ballot for statewide vote with the approval of 60% of all members of both chambers. During the legislative process, the General Assembly determines when the amendment is to be voted on.

Constitutional Amendments since 1971
The majority of the amendments made since 1971 extend the rights of citizens and change the roles and limitations of the state’s government including:

  • Lowering the voting age from 21 to 18, adopted in 1972.
  • Permitting any person to insure their life for the benefit of their spouse or children, previously only husbands were allowed to take out such policies, adopted in 1977.
  • Allowing the governor and lieutenant governor to serve two consecutive terms, adopted in 1977.
  • Requiring the state to run a balanced budget, adopted in 1977.
  • Requiring all judges to be lawyers, adopted in 1980.
  • Affording the governor the veto power, adopted in 1996.
  • Prohibiting a person convicted of a felony from holding office of county sheriff, adopted in 2002.
  • Limiting marriage to unions between one man and one woman. Though adopted in 2012, this amendment has since been determined to be unconstitutional by the US Supreme Court’s decision in the case Obergefell v. Hodges
  • Allowing criminal defendants to waive their right to trial by jury, adopted in 2014.

To read about all the amendments adopted and rejected by NC since 1971, click here.

Amendment Attempts in 2015-16 Legislative Session
Three constitutional amendments were attempted in the short session, none of which were passed out of the legislature. HB 3: Omnibus Constitutional Amendments failed to pass through both chambers in the final hours of session. The bill would have put three constitutional amendments on November’s ballot: limiting eminent domain for public use only, capping the income tax at 5.5%, and declaring hunting and fishing a constitutional right.

Constitutional Inconsistencies
Under the federal Supremacy Clause, the state’s constitution is overruled by the Constitution of the United States and all federal Law. As a result, there are several infeasible provisions of the current constitution.

The current constitution includes provisions requiring voters to be literate in English and prohibits non-religious people from holding an elected office. Neither of these provisions are currently upheld and both would likely be struck down in a court.

Additionally, federal and state court decisions have limited portions of the state constitution, including limiting the death penalty only to convictions of murder, and not including arson, burglary or rape and nullifying the state’s constitutional ban of gay marriage.