Opinion: Daily Journal

Born-alive battle could mark return of veto override strategy

State Senate leader Phil Berger (foreground) and Sen. Harry Brown, R-Onslow. (CJ file photo)
State Senate leader Phil Berger (foreground) and Sen. Harry Brown, R-Onslow. (CJ file photo)

Much of the commentary surrounding the recent born-alive abortion-survivors bill assumes the issue is dead.

But details of the N.C. General Assembly’s veto rules suggest there might be another outcome. Pursuit of that alternate outcome could affect legislative activity for much of the next two years.

Before addressing that alternate course, let’s remind ourselves of the conventional wisdom.

Democratic Gov. Roy Cooper vetoed Senate Bill 359. That’s the measure designed to ensure protection of babies who survive a failed abortion. Republicans no longer hold veto-proof supermajorities in the N.C. General Assembly. Therefore, they won’t be able to override Cooper’s decision. Case closed.

Or is it?

The veto override is scheduled for a vote today in the Senate. Its fate is uncertain.

Republican legislative leaders could allow the born-alive bill to die. Political calculations could play into that decision. Pro-life activists preparing for the 2020 election cycle certainly would rally their troops by pointing to Democratic “no” votes and Cooper’s veto. It’s hard to imagine that the issue would carry as much electoral force next year if a veto override enacts S.B. 359 into law this year.

Pundits have suggested that circumstances have played out exactly as Republicans had planned. Pass a partisan Republican bill. Wait for the Democratic governor to strike it down. Then take social conservative furor over that action all the way to the electoral bank.

But that’s not necessarily the way the story will unfold.

Article II, Section 22(1) of the N.C. Constitution explains how lawmakers respond to a gubernatorial veto. Once the bill returns to the General Assembly, lawmakers can override the veto if “three-fifths of the members … present and voting” agree to a veto override in both chambers.

The “present and voting” language rarely came into play during Cooper’s first two years in office. Holding more than three-fifths (60 percent) of seats in both the N.C. House and Senate, Republicans could override Cooper with ease if they all stuck together.

They did so 23 times in addressing Cooper’s record-breaking 28 vetoes during the 2017-18 legislative session. To put Cooper’s veto track record in context, governors vetoed a total of 35 bills in the 15 years from 2002 to 2016. Lawmakers voted to override just 16 of those first 35 vetoes.

Now, the “present and voting” requirement could play a more important role. It means that legislators need not secure 30 votes in the Senate and 72 votes in the House — 60 percent of the members of the respective chambers — to defeat Cooper’s veto. Instead, supporters of the born-alive measure need 60 percent support among the lawmakers who show up to vote on a particular day.

Because the measure started in the Senate, it would need to clear that chamber first. Senators initially approved S.B. 359 with a 28-19 vote on April 15. That’s just shy of the 60-percent standard. But all three senators who missed the vote were Republicans. If any one of the three cast a ballot with fellow Republicans for a veto override, and no other votes change, the measure would head to the House for its own veto override vote.

Even if one of the two Democratic senators who initially voted “yes” changed his mind and sided with Cooper, Republicans would need to pick up just two of the three missing GOP votes to override the governor. Only if both Democratic “yes” votes flipped to “no” would the GOP caucus find itself unable to advance the measure solely with its own membership.

Even a united Democratic front wouldn’t necessarily end the story. Article II, Section 22(1) requires only that the Senate “proceed to reconsider” the vetoed bill. The constitution sets no timeline. Neither does state law. Legislative rules remain silent on the matter.

That means Senate leaders could take up the veto override at any time during the rest of the legislative session. Not just this year’s session, but in 2020 as well. If Republicans remain united in support of the born-alive bill, they could wait for a moment when two Democratic senators are absent to bring the veto override measure to the floor.

One might argue that this type of political gamesmanship would fly in the face of legislative transparency and fair play. That’s true.

But one suspects that three members of the Senate GOP caucus retain vivid memories of Aug. 30, 2005. Senate leader Phil Berger, R-Rockingham, and Sen. Jerry Tillman, R-Randolph, sat in the Senate chamber that day. Majority Leader Harry Brown, R-Onslow, was notably absent.

That was the day when then-Democratic Senate leaders surprised GOP members by reconvening in Raleigh after having advised their colleagues that substantive legislative work was finished for the year. With Brown and another GOP colleague absent, Democrats had enough votes to enact the state lottery.

To recap: Democratic Senate leaders chose to enact one of the most substantial pieces of legislation in recent state history when two Republican colleagues were absent.

No one knows whether Berger, Brown, and colleagues would adopt the same tactics for the born-alive bill. The legislative calendar suggests Senate leaders want to address the issue quickly instead.

But the option for a delay is available. Democrats thinking about skipping a legislative session would need to keep that scenario in mind.

Supporters of S.B. 359 face even tougher prospects in the House. The measure passed, 65-46, in that chamber’s April 16 vote. That’s less than 59 percent. With all 120 members present, legislative leaders would need all four Democratic “yes” votes to stick with them — and pick up three of the five missing Democratic votes — to have a chance of overriding Cooper.

But the House has its own history of keeping vetoed bills in a special “garage.” When the numbers look favorable for an override vote, the garage opens and the bill rolls out for a vote.

Legislative leaders might want quick action on reversing Cooper. If that’s not possible, lawmakers in both parties might need to keep their calendars as clear as possible through the end of 2020. A vetoed bill could crop back up at any time.

Mitch Kokai is senior political analyst for the John Locke Foundation.