North Carolinians are mobilizing. Proponents and opponents of the proposed marriage amendment are rallying their troops. The proposed marriage amendment states in full: "Marriage between one man and one woman is the only domestic legal union that shall be valid or recognized in this State. 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."
But, sadly, that is not what voters will see on the ballot come May. Voters will see only the first sentence. Surprised?
When the General Assembly adopts an act proposing an amendment to the constitution, it is charged with the duty to set the day and the manner in which the proposed amendment will be put to voters for ratification or rejection. Part of that duty is carried out by setting forth the ballot question, which is what voters see on the ballot when they vote. The ballot question is not the full text of the amendment; it is a question summarizing the amendment voters are voting on.
The ballot question for the proposed marriage amendment isn't the first instance when the General Assembly has declined to put the text of a proposed amendment on the ballot. Even sweeping constitutional revision was accomplished without voters seeing the full text on the ballot. Consider the amendments of 1972 which so altered the constitution, the result is referred to as if it is an entirely new constitution, which it is not. Those amendments were ratified in response to ballot questions, which merely summarized the amendments.
More recently, in 2004, voters amended the constitution to include Article V, section 14, allowing government to issue tax increment financing bonds without voter approval. Described then as "Amendment One" because of its place on the ballot, the effect of the amendment was to take away voters' right to vote on certain types of bonds, yet the ballot question never used the word "vote."
I know the story of Amendment One well. I represented voters who challenged its ratification. The case went all the way to the federal Fourth Circuit Court of Appeals. Ultimately, the courts ruled against us. The ballot does not have to show the full text of the proposed amendment. That has been the practice for proposed amendments of various lengths and addressing various topics for generations.
In challenging the ratification of Amendment One, my clients were asking for a game changer. We did so because, then as well as now, voters should be fully and completely aware of exactly what they are voting on. At least, the ballot should give them the opportunity to be so.
The ballot question can't mislead voters about the fundamental nature of a proposed amendment, but it doesn't have to present the proposed amendment itself. That, of course, begs the question: Isn't putting the proposed amendment on the ballot the easiest way to be sure voters aren't misled? Sure, there will be people who don't read the whole thing. But, that's not the point. The point is that they should have a chance to read it.
I'll leave a debate of the substance of the proposed marriage amendment to proponents and opponents. All I ask for is what voters statewide should expect - that the full text of any proposed amendment appear on the ballot. It is too late to change the past, but the General Assembly still has the opportunity to empower voters in May to make an informed choice. The legislature should rewrite the ballot question and place the full text of the proposed marriage amendment on the ballot.
The law should expect full disclosure of all proposed amendments, and voters should demand no less. The constitution is the cornerstone of all law. Let's make sure voters have a chance to see all sides.