UPDATE, 1:48 p.m. Friday: Gov. Pat McCrory has signed S.B. 4 into law.
The bill, which the N.C. House passed by a 63-27 vote Friday afternoon, consolidates three state agencies into a new, bipartisan State Board of Elections and Ethics Enforcement, makes Supreme Court races partisan contests, and amends the Court of Appeals decision-making process.
The House had returned the bill, Senate Bill 4, to the Senate with an amendment, and the Senate concurred.
The Senate voted 30-16 along party lines Thursday afternoon to approve the measure, which was passed in morning meetings of the Senate Redistricting and Finance committees. The House Finance Committee heard the bill Friday morning.
Activists chanted “You work for us,” “Shame, shame, shame,” and other taunts so loudly that senators could not hear in the chamber. Senate leader Phil Berger, R-Rockingham, called for a recess.
Sharp partisan disputes punctuated each step of the S.B. 4 approval chain, as Democrats objected to the provisions, and Republicans reminded that much of the reform originated from past Democratic concepts and actions.
The item that sparked the most Democratic dissension, and riled the placard-toting partisans in the Senate gallery, was the move to merge the State Board of Elections, State Ethics Commission, and certain electoral functions of the Secretary of State into the new State Board of Elections and Ethics Enforcement.
The bill creates an eight-member board evenly split between Democrats and Republicans. Four members would be appointed by the governor, and two each by the House Speaker and Senate leader. It requires county elections boards to be four-member bodies, with two Democrats and two Republicans. The new board would be constituted and operational by May 1.
Sen. Tommy Tucker, R-Union, said streamlining the number of agencies will save money, and “puts the board in a better position to act, and be a watchdog in elections.” He said the board’s 4-4 political party split would take the politics out of elections “by removing the taint of partisan advantage.”
“The assertion that the ethics and elections parts of this bill are bipartisan is disingenuous and inaccurate,” said Sen. Angela Bryant, D-Halifax. She complained that Democrats weren’t allowed to participate in the process of drafting the bill.
She said making the Ethics Commission board members the new board in the transition phase “is simply a sneaky move to grab power unfairly,” because Ethics Commission members were all appointed by Republicans, and the director is a Republican.
After she was corrected by Berger that the Democrats on the commission originally were appointed by Democrats, Bryant doubled down. They were reappointed by Republicans, and “that still does not put us on a fair par with you,” she said.
Sen. Warren Daniel, R-Burke, said S.B. 4 specifies the Court of Appeals would have the authority to meet en banc — meaning as a full 15-member court — in certain situations rather than in the three-member panels it regularly uses to decide cases.
The state constitution does not preclude en banc proceedings. It states: “The Court may be authorized to sit in divisions, or other than en banc.”
“Over the years this [three-judge panel] process has become problematic as the Court of Appeals at times has inconsistent legal decisions” from different panels, Daniel said. An en banc process would reconcile differences. En banc procedures already are used at the federal court level, and in most states of the Southeast, he said.
During the Finance Committee meeting, Bryant said the change would make litigation costlier and create delays by allowing the Republican-dominated Court of Appeals to take cases heard by a three-judge panel on an en banc basis before sending them to the Supreme Court.
Daniel said adding that layer, which might tack another six to 12 months on a case, is the main negative, but it would “be a rarely used process” with maybe five cases a year falling under that mechanism. The Appeals Court would decide which cases it would hear en banc, and the Supreme Court would write the rules on the particulars.
The Supreme Court also would retain its authority to remove a case from the Court of Appeals and take it up on the high court anytime it wanted to.
Daniel said the Senate passed similar legislation in 1999, 2001, and 2005, but the bills did not get taken up in the House. Those bills were sponsored by former Sens. Dan Clodfelter, D-Mecklenburg, and Gov.-elect Roy Cooper, who in 1999 represented Wilson County in the Senate.
Still, the bill drew critics, such as Anita Earls, executive director of the Southern Coalition for Social Justice.
“Instead of a court-packing bill, it appears we got a court-denial bill. This proposal seems to delay Supreme Court review of cases, including those involving citizens’ constitutional rights,” Earls said in a written statement.
“Unconstitutional laws could be in effect for years before the state Supreme Court would finally get the case and rule,” Earls said. “It also means that every case will be ruled on first by a majority of Republican judges. This further encourages more partisanship instead of fostering an impartial judiciary.”
The move to change Supreme Court and Court of Appeals elections to partisan contests is necessary because voters “are really blind” when voting for the justices and judges, said Sen. Bob Rucho, R-Mecklenburg. Judicial regulations prevent judges from publicly discussing their political beliefs or prejudicing future cases by discussing, even in general terms, how they might rule.
Allowing judges and justices to run under political party labels would help voters better understand the types of decisions they might make, Rucho said.
During Finance Committee debate, Senate Minority Leader Dan Blue, D-Wake, objected to the change. He said there was a good reason for North Carolina to make judicial elections nonpartisan as “a continuing evolution” toward fairness.
“Judges really do represent that lady with a blindfold on,” Blue said. “Justice is not supposed to have any preference [and judges] shouldn’t stand for anything but justice.”
“I wish you could sit there and tell me that with a straight face,” Rucho said. Some believe Democrats made the judicial races nonpartisan because voters were becoming more likely to cast ballots for judges with an “R” next to their name, he said.
He also took a jab at three-judge panels of the 4th Circuit Court of Appeals’ decisions shooting down North Carolina legislative and congressional redistricting.
“I think we all had a full dose of what blind justice is through our redistricting, and election law, and all of the things that we’ve seen,” Rucho said.
Rucho said the bill contained a section clarifying legislative authority to draw legislative districts because there has been “a lot of confusion” by state government agencies failing to understand that the state constitution “gives the senators and the House members authority to draw legislative districts, period.”
The bill says if the General Assembly enacts a plan apportioning or redistricting state legislative or congressional districts, “in no event may a court impose its own substitute plan unless the court first gives the General Assembly a period of time to remedy any defects identified by the court in its findings of fact and conclusions of law. That period of time shall not be less than two weeks.”
The bill says the State Board of Elections may not “alter, amend, correct, impose, or substitute any plan” to reapportion or redistrict unless ordered by a court or the General Assembly.
Prior to the bill’s passage, a number of Democrats decried having a special session of which they were not aware and being forced to vote on substantive changes with little time to prepare.
“It’s really transparent, and really clear that the simple purpose of this bill is to undercut the power and authority of Gov.-elect Roy Cooper before he takes the oath of office on Jan. 1,” said Sen. Floyd McKissick, D-Durham. “Even Stevie Wonder could see this.”
But Senate Majority Leader Harry Brown, R-Onslow, reminded lawmakers that, when Republicans were in the minority, it was not uncommon to be handed a bill an hour before a vote. Democrats had plenty of time to read S.B. 4, and had two committee meetings in which to debate it, he said.
Brown said Democrats implemented a number of sweeping power grabs in the past involving gubernatorial appointments, and duties of the lieutenant governor and superintendent of public instruction. He chided McKissick for complaining about the new elections agency and legislative and congressional redistricting powers.
“You guys could have had an independent panel for 150 years, but it was never important,” Brown said. “And now all of a sudden it’s the most important thing you’ve ever heard of because we got to draw them one time.”