The N.C. Senate followed the House’s lead Monday, Aug. 27, as it voted along party lines to address court concerns and pass a pair of proposed constitutional amendments.
The House on Friday passed the bills creating a new state elections board and nonpartisan judicial merit commission. They now become law, because constitutional amendments aren’t subject to gubernatorial veto and can appear on the Nov. 6 general election ballot.
The unanswered question remains whether the new proposals, the original amendments stricken from the ballot by a three-judge Superior Court panel, or all four appear on the ballot. The original proposals have not been repealed.
Gov. Roy Cooper and the N.C. Conference of NAACP successfully sued to keep them off the ballot. A three-judge panel of Superior Court judges issued a ruling not to place the elections board and judicial merit commission amendments on the ballot because they were misleading. They rejected the NAACP’s challenge to also remove amendments requiring photo ID to vote and capping the income tax rate at 7 percent.
Senate leader Phil Berger, R-Rockingham, and House Speaker Tim Moore, R-Cleveland, appealed. The N.C. Court of Appeals issued an order placing a hold on the three-judge panel’s decision, returning the original amendments to the ballot.
Bipartisan State Board of Elections and Ethics Enforcement spokesman Patrick Gannon told Carolina Journal last week what appears on the final ballot remains murky.
“We do not know what it will mean for their predecessors and/or whether the new amendments would be challenged” in court, Gannon said. The NAACP’s challenges to the income tax cap and photo ID to vote are pending, as well.
“We hopefully will have clarity later this week or early next week,” Gannon said on Monday.
Senate Democrats opposed placing the measures on the ballot during floor debate. They said they are designed to deceive voters, erode the separation of powers, and weaken government checks and balances.
Democrats tried repeatedly to amend the proposals. Each time Republicans used their majority, and a rules procedure allowing them to permanently table the amendments without voting on them.
Democrats also called for the amendments to include language repealing the original constitutional amendments to avoid voter confusion. Republicans didn’t bite. There’s concern that inserting a repeal provision would give the governor wiggle room to veto the new amendments. That’s because the prohibition on the governor’s veto power in constitutional amendment proposals might not cover constitutional amendment repeals.
Berger and Sen. Ralph Hise, R-Mitchell, chairman of the Senate Select Committee on Elections, issued a joint release shortly after the vote saying their action fully complies with the letter and spirit of the three-judge panel’s opinion. The judges offered the General Assembly the option to revise the constitutional amendments in time to meet a Sept. 1 deadline to begin the process of printing ballots.
“While we disagree with the court’s opinion, these amendments are far too important not to be on the ballot, which is why we acted immediately to comply with its decision,” Berger said.
“It’s unfortunate that Gov. Cooper challenged these amendments in the first place, inserting himself into a process that he has no constitutional right to be a part of, but my colleagues and I operated in good faith to address the court’s concerns,” Hise said.
During floor debate Sen. Floyd McKissick, D-Durham, offered a different take.
He said the judicial commission bill “still fundamentally shifts the balance of power from the governor and the executive branch to the legislature.”
He said the amendment creating a new bipartisan elections board is misleading for several reasons, including not informing voters one already exists. McKissick said Republicans are operating under the mistaken assumption they will remain in power in perpetuity.
The new ballot question for House Bill 3 creating a Nonpartisan Judicial Election Commission passed 32-13. It includes additional details on the process to nominate candidates for judicial vacancy appointments that the three-judge panel said was lacking or deceptive.
It further revises the language to make clear the amendment doesn’t impact the governor’s veto power. In court Cooper’s lawyers argued — and the judges agreed — eliminating the governor’s veto over judicial vacancy appointments in the original proposal might allow lawmakers to attach unrelated legislation they want to pass, thus avoiding the governor’s veto. The new amendment makes clear no other legislation can be tacked on to a judicial vacancy appointment.
House Bill 4 creating a Bipartisan Board of Ethics and Election Enforcement with members appointed by the General Assembly passed 32-14. It was updated to make clear it no longer impacts the appointment process for hundreds of other state boards and commissions.
The amendment would form an eight-member board composed of no more than four appointees from the same party, ensuring that partisan politics doesn’t play a role in oversight of elections and campaign finance.
By passing the constitutional amendments Republicans are “trying to sow severe confusion in the courts and with voters by having four conflicting constitutional amendments on two subjects headed for the ballot,” according to a statement from Cooper’s office.
The governor chastised GOP lawmakers for refusing to be honest with voters with the alternative amendments. “They’re gaming the process to get their original, misleading amendments on the November ballot,” according to Cooper’s statement.