News: CJ Exclusives

Witching-Hour Veto Override Raises Legal Questions

Perdue claims that veto override session was unconstitutional

Holiday cheer gave way to Scrooge-like griping during two contentious sessions Wednesday and early Thursday morning in which Republicans overrode Gov. Bev Perdue’s veto of a bill that eliminates an automatic dues check-off option for members of the state teacher’s association.

The veto override prompted accusations of unconstitutionality from the Perdue administration, while GOP leaders said their actions meshed with the law.

The legislature convened Wednesday afternoon to take an override veto on a different measure — Senate Bill 9, No Discriminatory Purpose in Death Penalty. The legislation gutted the Racial Justice Act, a law passed in 2009 and supported by Democrats and Perdue, that effectively had created a moratorium on the death penalty in North Carolina.

Republicans couldn’t muster enough votes in the House to override the veto, so instead they convened a midnight-hour session Thursday morning to override Perdue’s veto of Senate Bill 727, No Dues Checkoff for School Employees.

Right now, dues to the N.C. Association of Educators may be deducted from teachers’ paychecks automatically by local school systems. SB727 would eliminate that option and make teachers pay their dues directly.

In response to the veto override, Perdue blistered GOP legislative leaders in a statement, claiming that the second session ran afoul of the state constitution.

“Republicans in the General Assembly didn’t have the votes to get what they wanted legally,” Perdue said. “So, in the dark of the night, they engaged in an unprecedented, unconstitutional power grab. I am saddened for the people of North Carolina that the Republicans abused their power and chose this destructive path.”

The NCAE already has threatened legal action.

Jeanette Doran, executive director and chief legal counsel for the N.C. Institute for Constitutional Law, disputed Perdue’s reasoning.

“The governor’s theory is, I think, wishful thinking,” she said. “Really, there isn’t anything that would prohibit the General Assembly from reconvening on their own accord pursuant to different constitutional provisions. They have the session called by the governor to reconsider the Racial Justice Act veto, but that doesn’t mean that they can’t reconvene the next day for something else.”

Midnight mischief

If a governor vetoes a bill while the General Assembly isn’t in session — as she did with SB9 — the state constitution requires her to call a special session to give lawmakers a chance to override the action. The constitution also specifies that legislators “may only consider such bills as were returned by the Governor to that reconvened session for reconsideration.”

To get around that provision, Republicans adjourned the special session late Wednesday night. They then convened a second session early Thursday morning to take up the override of SB727.

Here’s the chronology of events:

• The House and Senate convened at 2 p.m. Wednesday.

• The Senate voted 30-19 to override the veto of SB9 at 4:27 p.m. The House didn’t have enough votes to override the veto, and thus referred the bill to a Judiciary Committee where a special working group will examine it.

• The House and Senate passed adjournment resolutions allowing both chambers to consider other legislation vetoed by Perdue. Both chambers then convened a second session shortly after midnight.

• By a 69-45 vote, the House overrode Perdue’s veto of the dues check-off bill at 1:12 a.m. The absence of some Democrats allowed that margin to meet the requisite three-fifths majority necessary for veto overrides. The Senate had already overridden the veto, 30-18, in July.

• Two Democrats — Reps. William Brisson of Bladen County and James Crawford of Granville County — joined all 67 Republicans present in voting for the override.

Perdue has vetoed 16 bills passed by the General Assembly. The override vote this morning means that Republicans, and a few Democrats, have successfully overridden seven of those vetoes.

Political fallout

Andrew Taylor, a professor of political science at N.C. State University, said the constitutional issues boil down to a game of “he said, she said.” Democrats are on firmer ground when they argue that the last-minute session was “bad form,” he said.

“This is the kind of thing you expect in a majoritarian, heavily centralized institution at a time when the parties are extremely polarized. It will continue to happen,” Taylor said.

At the same time, he said that Democrats’ argument amounts to the “pot calling the kettle black” because past Democratic majorities employed the same hijinks.

“We’ve had many, many years of Democratic majorities in the House — very large ones, very stable ones — and they could afford to play fast and loose with the rules and not really care about the minority,” Taylor said. “Republicans whined about that. And now you have former whining Republicans becoming authoritarian, and former authoritarian Democrats becoming whiners.”

David N. Bass is an associate editor of Carolina Journal.