Two replacement constitutional amendments have sailed through the House, but whether voters ever see them is far from decided.
The Republican-led General Assembly made clear it doesn’t intend to shift thousands of state board appointments from the governor to the legislature or to severely weaken the governor’s veto power.
The House voted 72-34 on Friday, Aug. 24, to pass House Bill 3, a proposed constitutional amendment creating a nonpartisan judicial merit commission, and 73-33 to approve House Bill 4, creating a Bipartisan Board of Ethics and Elections. No other items are being taken up in the second special session of 2018, which convened Friday.
The proposed amendments have yet to pass a Senate vote scheduled for Monday. They were assigned to the Senate Rules Committee. A pair of active lawsuits brought by Gov. Roy Cooper and the N.C. Conference of NAACP also thrust uncertainty into an already complicated mix, which includes a pressing Sept. 1 deadline to begin preparing ballots to meet a federal election timetable.
Rather than six constitutional amendments appearing on the ballot, there could be eight. That’s a scenario Democrats raised during floor debate. It centers around an order from the N.C. Court of Appeals issued Thursday, Aug. 23, blocking a lower three-judge panel’s decision in the lawsuits.
The lower court ruled descriptive summaries written to accompany the original amendments on the ballot were so misleading they violated voters’ constitutional rights to be fully and accurately informed of what they are voting on. The panel said unless a higher court overruled the decision, or lawmakers rewrote the original amendments to fix the deceptive language, those two amendments could not be placed before voters.
The Appeals Court issued a stay of that order, returning the amendments to the ballot.
House Minority Leader Darren Jackson and Rep. Joe John, both Wake County Democrats, said unless Republicans included language in the rewritten amendments to repeal the original versions, both the original and revised amendments would appear on the ballot.
But that might open the bills to a Cooper veto and keep the new amendments off the ballot. While the governor can’t veto constitutional amendment legislation, it’s unclear if placing repeal language in the bills could make them subject to veto.
Another scenario is that the Republican leaders could rescind their appeal to the Court of Appeals. The case would revert to the original three-judge panel’s order allowing four amendments already cleared to stay on the ballot.
The legislature then could add the two revised amendments to the ballot, although that might spark another court challenge.
The Bipartisan State Board of Elections and Ethics Enforcement was asked who ultimately decides what appears on the ballots, and when the decision would be made.
“Good question, but we presently cannot provide a firm answer,” spokesman Patrick Gannon told Carolina Journal. “This is still playing out in the General Assembly and the courts.”
If the Senate approves the two revised amendments, “We do not know what it will mean for their predecessors and/or whether the new amendments would be challenged,” Gannon said. Challenges to the income tax cap and photo ID to vote are still pending.
Whatever shakes out, Republicans don’t intend to have eight amendments on the ballot.
“There are options to make sure that doesn’t happen, and we plan to work with the court to ensure voters don’t get confused,” Senate leader Phil Berger spokesman Bill D’Elia told CJ.
Cooper isn’t buying it.
“The people deserve a truthful ballot,” the governor said in a prepared statement. “These amendments remain dishonest and dangerous like the old ones that the court ruled unconstitutional.”
Republicans’ response differed.
“These two constitutional amendments offer voters a bipartisan, multi-branch balance in the administration of ethics law and a voice in the appointments process for judicial vacancies — popular proposals that will substantially improve the administration of elections and justice by our state government,” said state House Speaker Tim Moore, R-Cleveland. He and Berger, R-Rockingham, were named as defendants in the Cooper and NAACP suits.
Rep. David Lewis, R-Harnett, House Elections and Ethics Law Committee chairman, said the new referendums conform to the spirit and letter of the court’s ruling. He urged the governor to end his litigation preventing voters from being heard on the proposals.
Berger sent a letter to Senate Minority Leader Dan Blue, D-Wake, explaining the need for a special session, and blaming Cooper’s last-minute lawsuit for creating the time crunch.
“As you can see from our new amendment language, we fully addressed the court’s concerns and instructions for remedy on each of the constitutional amendments in question,” Berger wrote in the letter.
Jackson argued against the proposed eight-member elections board chosen from nominations by leaders of the two prominent parties.
“We are setting up a board that is destined to have 4-4 ties because you’re only allowing those two parties to participate,” he said. He said it would result in fewer voting hours, fewer voting sites, and less Sunday voting because the board would be deadlocked on county boards’ appeals of those situations.
Lewis said the revised amendment should placate court concerns the General Assembly was attempting to shift the power to appoint members to more than 400 state boards and commissions from the governor to the legislature. The new amendment makes clear that’s not the goal.
The judicial merit commission amendment was revised to address the court’s concern the old bill shifted judicial vacancy appointments from the governor to the legislature. It did not allow the governor to veto them, but did not specifically state the restriction was limited to those appointments. That would allow any legislative matter to be attached to a judicial vacancy appointment bill and avoid the governor’s veto, the court ruled.