North Carolina’s real constitutional crisis is the constitution itself | Opinion

North Carolina is in a constitutional crisis — just not the kind we usually talk about.

It’s not about power-hungry politicians or partisan judges. The problem is the state constitution itself.

We got another prime example of the problem this week. A Wake County court handed Gov. Josh Stein a favorable ruling in a lawsuit over appointments to the State Board of Elections. A new law had transferred appointment power from the governor to the state auditor — a Republican — just as Stein took office. The court, in a 2-1 ruling, called it unconstitutional.

But was it? It’s not really clear, and judges make compelling points on both sides. That’s the real issue, and thankfully, it’s one we can fix.

A familiar script

This case is simply the most recent in a long line of political fights dressed up as legal disputes. And it won’t be the last, because our constitution doesn’t settle power struggles. It creates them.

The names keep changing — McCrory, Cooper, Stein — but the script doesn’t. A new slate of officials takes office. The legislature rewrites the rules. The governor sues the legislature. A court picks a winner. Then we hit reset and do it again.

These aren’t one-off clashes. They’re symptoms of a deeper breakdown, and a sign that the state constitution needs an overhaul.

Yes, this feels like a radical way to understand the state constitution. But it’s a lot more normal than you might think.

The Founding Fathers, in their wisdom, drafted a U.S. Constitution that creates a limited federal government with basic guardrails. It’s an elegant system built to endure.

But the state constitution is a workhorse. With the state government’s broader authority, it has to do more things. So by design, state constitutions are meant to be revised, rewritten, and adapted. That’s why it has so many amendments.

Sometimes, though, it needs a complete overhaul. North Carolina is on its third constitution, with the current version penned in the 1960s and enacted in 1971. At the time, Democrats had a stranglehold on every branch of state government. There hadn’t been a Republican governor in 70 years.

The framers of the U.S. Constitution envisioned divided government. The people who wrote the N.C. version did not, and the system they drew up doesn’t work well in a partisan environment.

There’s a difference between checks and balances and organizational dysfunction. One has a healthy tension between branches of government. The other creates legal nightmares. And that’s exactly what we’re seeing today.

For close to two decades, the governor — from Pat McCrory to Roy Cooper and Stein — has endlessly squabbled with the General Assembly over executive branch appointments. The General Assembly leans on language in the state constitution that allows it to assign duties to the 10 statewide elected roles that make up the Council of State. Governors cite clauses vesting the executive power in their office.

This wasn’t unforeseen. In fact, the study commission in charge of the 1960s-era constitution redesign warned this would happen.

They pointed out that Article III — the section outlining executive power — was vague and contradictory. It says the governor holds “executive power,” then immediately distributes it among a slate of independently elected officials. It makes the governor responsible for faithfully executing the laws, but doesn’t give him the authority to actually do it.

The commission proposed a fix: reduce the number of elected executive officers, tighten the lines of accountability, and build an executive branch that could actually function. The recommendation was ignored. And half a century later, the dysfunction the commission predicted is now our default.

A new constitution

In this specific case, it’s hard to sympathize with either side. The General Assembly is playing power politics. You can make an argument that the governor shouldn’t be in charge of the elections board, but the natural place would be with the Secretary of State, not the auditor.

But the governor is pretending to be a unitary executive in a system that doesn’t give him that role. And the courts are forced to act like referees, squinting at vague constitutional language and precedent that changes with every political shift.

We can’t keep patching this system with lawsuits. North Carolina needs a new constitution — one that defines who does what in the executive branch, from the governor to every member of the Council of State.

What are their roles? What are their limits? Who is ultimately accountable? Right now, no one can answer that clearly — not the courts, not the politicians, and certainly not the voters.

As a conservative, I don’t take calls to rewrite a constitution lightly. But we need a framework that works. That means defining the governor’s powers clearly. That means specifying what executive offices do. That means spelling out standards for elections, education, and redistricting — before more of these fights land in court.

The process for making this happen is remarkably simple: Once the new constitution is drafted, three-fifths of the state House and Senate must vote to approve it. Then it goes to a statewide vote, where only a majority is required to adopt it.

The current constitution was a product of its time. That time is over. And it’s time our constitution caught up.