Point of View

How voter ID laws violate the NC Constitution

April 13, 2013 

The General Assembly is considering a bill to require voters to present photo identification in order to be allowed to vote. Proponents of the bill say the ID requirement is necessary to protect the integrity of elections and stamp out voter fraud. Opponents claim that there is no significant evidence of in-person voter fraud and that the bill is simply an attempt to make it harder to vote for persons without ID who tend to be older, poorer and more minority than those with ID.

Putting aside the public policy debates, the voter ID bill has one significant problem: It violates the N.C. Constitution, which deliberately puts the issue of voter qualifications beyond the reach of the General Assembly. To understand how and why requires some knowledge of the history of North Carolina, including the crucial role of voting rights in North Carolina.

The current state constitution is the product of a post-Civil War Convention called in 1868 to rewrite the fundamental form of our government in light of what its Preamble calls “the preservation of the American Union” after four years of bloody conflict. Not surprisingly, elections and the extent of the voting franchise were critical elements of the new Constitution.

Indeed, the post-war General Assembly that called the Constitutional Convention required all delegates to take an oath not to require – or even propose – any educational or property qualification for voting.

Our Constitution’s very first Article is a “Declaration of Rights,” which, among other things, requires frequent and free elections and states categorically that “as political rights and privileges are not dependent upon or modified by property, no property qualification shall affect the right to vote or hold office.”

In addition to those general Declarations, our constitution has another Article, Article VI, devoted entirely to “Suffrage and Eligibility to Office.” That Article starts off by stating that every person born in the United States or who has been naturalized “and possessing the qualifications set out” in the Article “shall be entitled to vote at any election by the people of the State.”

The “qualifications” set out in the Article are minimal, requiring only a residency period, registration, and that the person not be a felon (unless restored to the rights of citizenship). No other qualifications are found in the Constitution.

The structure of the Constitution defines all the qualifications to vote and, therefore, puts additional qualifications outside the ambit of the General Assembly. Underscoring this interpretation is the fact that the Constitution explicitly allows the General Assembly to “enact general laws governing the registration of voters,” and there are pages of such laws in the North Carolina General Statutes. Voter qualifications, though, are off limits and, until voter ID recently popped up as an issue, the General Assembly had not sought to intrude into that arena.

Because the General Assembly has stayed out of the voter qualification business, the North Carolina courts have rarely had to weigh in on voting rights issues. The same, however, is not true of qualifications for office, which, interestingly, are governed by precisely the same narrow constitutional standards as voting qualifications. Tellingly, the North Carolina courts have a long history of striking down those laws.

As recently as 1992, our Supreme Court struck down the General Assembly’s “resign-to-run” statute that sought to require those seeking office to resign from their current offices. In ruling that the statute was unconstitutional, the court held that the General Assembly was “forbidden by the organic instrument,” meaning the North Carolina Constitution, from disqualifying any voter not disqualified by the Constitution from holding any office. Any additional qualification would require a constitutional amendment.

In that case, the Supreme Court was following its own precedent dating back at least to 1875 when it struck an additional residency requirement sought to be imposed by the General Assembly in a municipal election in Wilmington. The court held that requiring a voter to take an oath concerning his qualifications was constitutional, but anything beyond that was unconstitutional and a “practical denial of the right to register and vote” which was “framed upon the idea of making the ballot as difficult as possible.”

The voter ID bill now under consideration suffers from precisely the same infirmity. It seeks to add a qualification not found in the Constitution and, in doing so, tries to make access to the ballot difficult for those who do not meet the new requirement. As such, it is unconstitutional.

Press Millen is a trial lawyer in the Raleigh office of Womble Carlyle Sandridge & Rice, LLP.

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