Democrats get to write ballot language for Republicans' constitutional amendments

Democrats have argued that ballot questions for this year's constitutional amendments might be misleading, but two of the state's most prominent Democrats will have a key role in explaining the amendments to voters.

A little-known provision in a 2016 law puts the Constitutional Amendments Publication Commission in charge of writing an "explanation" of the amendment that will "include a short caption reflecting the contents ... to be used on the ballot and the printed summary." It also says the ballot items "shall be designated by only the short caption provided by the Constitutional Amendments Publication Commission."

The commission consists of the secretary of state (Democrat Elaine Marshall), the attorney general (Democrat Josh Stein), and the legislative services officer (Republican Paul Coble), who are required to meet and come up with the explanations at least 75 days before the election.

A spokeswoman for Marshall said she's working with the other two members to schedule meetings, and several could be needed because six constitutional amendments are on the ballot this year. But while the 2016 law would put the commission's captions on the ballot, each of this year's amendments already include specific ballot questions.

Rep. David Lewis, a Harnett County Republican and chairman of the House Elections Committee, said he doesn't think the commission will write ballot language. "It's my understanding that what they do is develop wording for placards to be used at the polling site," he said Monday.

But the State Board of Elections and Ethics Enforcement says voters will see the caption on the ballot.

“November ballots will include the short caption provided by the Constitutional Amendments Publication Commission, as well as the ‘For’ or ‘Against’ language included in the legislation approving the amendments for the ballots,” agency spokesman Patrick Gannon said Tuesday.

Gerry Cohen, the retired special counsel to the General Assembly, said the ballot structure "just like a bill has a short title and a title." According to Cohen, the commission was created in 1983 to write pamphlets explaining proposed amendments, but its powers were expanded to ballot language in an omnibus elections bill in 2016.

With no constitutional amendments planned that year, the provision attracted little notice, and discussion of the overall bill focused on a separate provision setting ballot order for candidates. Lewis said he didn't recall the details of how the provision was developed in 2016, but he figures that the commission got the task because "somebody had to do it."

No ballot captions were included in the last two constitutional referenda in 2012 and 2014, which simply had the ballot heading "NC constitutional amendment" and the language from the legislation.

As an example of how a caption might look, Cohen pointed to the 1914 ballot, which featured a title in all caps listing the section of the constitution affected, followed by the description set by legislators.

The Democratic majority composition of the Constitutional Amendments Publication Commission has led some to question if the explanations might lead voters to vote no. Many Democratic lawmakers voted against some of the amendments, and they criticized vague wording in several of them — including an amendment that would limit the governor's appointment powers but doesn't include ballot language spelling that out.

Lewis said he doesn't think the commission's involvement will hurt the amendments. "I think the people are smarter than the Democratic activists, so I'm not the least bit worried about it," he said.

"All of the amendments that we've offered are ones that we feel have high degrees of public support. I frankly have confidence that whatever's put on the posters will just be what it is."

A spokeswoman for Stein says the attorney general "intends to fulfill his statutory obligation and accurately define each of these amendments on next year's ballots."

This story was originally published July 10, 2018 at 4:03 PM.