The Marriage Amendment and the Ballot: Why the Full Text of the Amendment Doesn’t have to be on the Ballot.
January 20, 2012
This coming May, North Carolina voters will once again have the opportunity to amend North Carolina’s Constitution. The proposed amendment would add a new section to article 14 and define marriage as between one man and one woman. 2011 N.C. Sess. Laws 409. It would also declare marriage as the only domestic legal union recognized in North Carolina – likely barring both same-sex domestic partnerships and civil unions from achieving legal recognition. Legislative debate on the amendment received widespread media attention. Proponents and opponents of the amendment are rallying their troops, and our airwaves are likely to be saturated with campaign messages this spring. But, the language of the amendment itself may be elusive to many North Carolina voters. In fact, the proposed amendment will not even be on the ballot in full, nor does it have to be. This article will look at existing standards and why the ballot language proposed meets minimal due process protections.
While dozens of states have passed amendments prohibiting same-sex marriage, the language of these amendments is by no means uniform. Virginia’s broad articulation spans several sentences while Florida’s amendment is succinct with only one line. Va. Const. art. I, § 15-A; Fla. Const. art. I, § 27. The first line of North Carolina’s proposed amendment states that “Marriage between one man and one woman is the only domestic legal union that shall be valid or recognized in this State.” 2011 N.C. Sess. Laws 409. This is an almost a perfect replication of Idaho’s marriage amendment. See Idaho Const. art. III, § 28.
Unlike Idaho, the North Carolina General Assembly has also offered a second part to its proposed amendment, clarifying, “This section does not prohibit a private party from entering into contracts with another private party; nor does this section prohibit courts from adjudicating the rights of private parties pursuant to such contracts.” 2011 N.C. Sess. Laws 409. In surveying existing amendments, this addendum appears unique. While the exact origin of the second part is unclear, it may stem from concerns that the proposed amendment could be construed in a way which would interfere with the rights of private parties to enter into contracts, particularly employment benefit contracts.
More precisely, the second sentence of the proposed amendment may well extend from a 2006 opinion of the Idaho Attorney General. The opinion evaluated the potential effects of the amendment on state contractual rights, in particular, the ability of same-sex couples to enter into enforceable contracts documenting mutual obligations. Idaho Att’y Gen. Op. No. 06-1 (Feb. 8, 2006). Relying primarily on the Contracts Clause of the United States Constitution, the Attorney General determined that the amendment itself would not inhibit existing contract rights between same-sex couples or with third parties, like an employer. However, the Idaho Attorney General noted, “A remark in the amendment or its statement of purpose that the marriage amendment is not intended to interfere with contracts would support this conclusion.” Id. at 20. So, it seems, part of North Carolina’s marriage amendment was born of Idaho’s Attorney General’s opinion letter.
The second sentence of the amendment was not originally a part of the proposed amendment, and its addition received a fair amount of attention from supporters and opponents of the amendment as well as from the media. Yet, the General Assembly excluded this second part in drafting the ballot language. When the General Assembly drafts a proposed amendment, the bill setting forth the amendment also sets forth the language of the ballot question which will be put forth to voters who ultimately vote to approve or not approve the proposed amendment. In May, North Carolina voters will be asked only whether they are for, or against, a “Constitutional amendment to provide that marriage between one man and one woman is the only domestic legal union that shall be valid or recognized in this State.” 2011 N.C. Sess. Laws 409.
The North Carolina Constitution vests in the General Assembly the power to set the time and the manner in which proposed amendments will be submitted to voters. N.C. Const. art. XIII, § 4. The full text of the amendment does not have to appear on the ballot and, historically, hasn’t. 26 Am. Jur. 2d Elections § 295. While the General Assembly is largely unrestrained in drafting ballot questions, it does not have absolute discretion. The General Assembly may draft the ballot question as it sees fit, but it may not deceive voters about the nature of the amendment at issue without running afoul of due process. Burton v. Georgia, 953 F.2d 1266, 1269 (11th Cir. Ga. 1992).
The ballot question must give voters fair notice such that they can identify the amendment and distinguish it from other provisions on the ballot. Hardy v. Hannah, 849 S.W. 2d 355, 358 (Tex. App. 1992). “The ballot language must show the character and purpose of the amendment, but it need not show all the relevant details.” Hardy, at 358. However, states are not obligated to explain all potential legal implications of a constitutional amendment. Burton, at 1270. In Wadhams v. Sarasota County, the Florida Supreme Court found a ballot question amending the county charter “deceptive, because although it contains an absolute true statement, it omits to state a material fact necessary in order to make the statement made not misleading.” 567 So. 2d 414, 416 (Fla. 1990) (citing Askew v. Firestone, 421 So. 2d 151, 158 (Fla. 1982)).
In order for the ballot language of North Carolina’s marriage amendment to run afoul of due process, the substance of the second sentence must be so necessary to the understanding of the proposal as a whole that its absence deceives voters about the very nature of the amendment. The second sentence of the marriage amendment, which clarifies and reaffirms the pre-existing enforceability of private contracts, is not so necessary. The primary character and purpose of the proposed amendment is to prohibit same-sex marriage, not to reaffirm the right to contract. Furthermore, as the Idaho Attorney General noted in connection with the parallel language in Idaho’s amendment, the first sentence of the amendment does not itself inhibit existing contract rights. Idaho Att’y Gen. Op. No. 06-1 (Feb. 8, 2006). Under this interpretation, the second sentence of the amendment is merely a reaffirmation of individual contract rights. It is, in a word, superfluous.
Even assuming arguendo that the proposed amendment has a broader purpose and assuming further that the first sentence jeopardizes the enforceability of private contracts, a court is still unlikely to invalidate the ballot language on due process grounds. North Carolina courts will consider the facts and circumstances surrounding an election when seeking to ascertain the voters’ intent. Riddle v. Cumberland County, 180 N.C. 321, 328, 104 S.E. 662, 666 (1920). Proponents of the amendment assert that its effect is only to constitutionally define marriage as between one man and one woman – and prohibit state judges from overturning North Carolina’s existing marriage laws on equal protection grounds. Josh Ellis & Gurnal Scott, NC House approves marriage amendment, N.C. News Network, Sept. 13, 2011, available at http://www.ncnn.com/edit-news/7252-nc-house-approves-marriage-amendment. It is unlikely a court will find that voters in North Carolina were deceived by the ballot language and actually intended to prohibit far more activity than was ever suggested on the ballot. That is, a court would be unlikely to find voters—despite the statements from proponents of the amendment that contract rights would not be affected by passage of the amendment and despite federal constitutional guarantees in the Contracts Clause—meant to restrict private contract rights.
Fundamental fairness is not jeopardized by the existing ballot language. Though the language of the second sentence is useful in making an educated decision, voters are not denied any constitutional right by the General Assembly limiting the ballot question. It is ultimately up to the voters to educate themselves on exactly what changes they are or are not voting on come May. Hopefully they will do just that.
 Available at http://www.cwfa.org/images/content/NCMarriage,2011.S514.pdf.
 In a separate whitepaper, the North Carolina Institute for Constitutional Law addresses more fully the reasons why the text of the amendment need not appear on the ballot.
 Available at http://www.ag.idaho.gov/publications/op-guide-cert/2006/Opinion06-1.pdf.