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Update: House passes new constitutional amendments language

August 25, 2018

The North Carolina State Legislative Building in downtown Raleigh, where the NC General Assembly meets. Photo taken August 17, 2018.

The N.C. House passed new language for a pair of proposed constitutional amendments Friday, paving the way for the amendments to get back on statewide ballots this November after a three-judge panel removed them earlier this week.

The court said language that the Republican majority had planned to put before voters didn’t fairly describe what the two amendments do. GOP leadership said the changes working their way through this hastily called special session will address the court’s concerns, though Gov. Roy Cooper said in a statement Friday that the new language remains “deceptive, unconstitutional and wrong.”

Former Republican Govs. Jim Martin and Pat McCrory also put out a statement Friday, calling on the General Assembly to simply drop these amendments, both of which shift power from the executive branch to the legislature. Later in the day though, Martin told The Charlotte Observer he could support the rewrite one of the bills – one that sets up a new State Board of Elections and Ethics Enforcement.

Martin remained against the other amendment, which shifts judicial appointment powers from the governor to the General Assembly, the newspaper reported. A WRAL News attempt to reach Martin wasn’t immediately successful. McCrory told WRAL News the two planned to review the changes moving through the legislature and issue a statement Saturday.

“Some very positive movement,” was McCrory’s analysis late Friday afternoon.

Earlier Friday the two former governors had called the two amendments “a major distraction.”

It wasn’t immediately clear Friday whether the Cooper administration would bring more legal action to keep the two rewritten amendments off the ballot. The new language won’t be formally adopted until at least Monday, when the state Senate is scheduled to follow the House’s lead and approve it.

Friday’s House votes fell nearly along party lines. House Bill 3, reworking the judicial vacancy appointments bill, passed 72-34. State Rep. John Blust, a Guilford County Republican who routinely raises process concerns with his GOP leadership, was the lone Republican vote against.

Without him the majority was barely able to muster the 72 votes required to put a constitutional amendment before voters. It takes three-fifths support in both chambers, then a successful referendum, to amend North Carolina’s constitution.

House Bill 4, which asks voters to create a new bipartisan State Board of Elections and Ethics Enforcement, passed the chamber 73-33.

Speaker of the House Tim Moore said he expects both measures to clear the Senate Monday. This session is slated to wrap soon after, with GOP leaders promising no other issues will be taken up.

This session was called Thursday, with less than 24 hours notice. Democrats objected to the short notice, particularly with September deadlines looming to finalize state ballots. Republicans blamed the Cooper administration for filing a lawsuit late in the process.

That suit, and another from the state NAACP, was initially successful in getting these two amendments off the ballot, though the case was still working its way through the courts as legislators met Friday and Republican leadership could still get their original language approved by the courts.

Democrats suggested that a procedural slip-up as Republicans move quickly through this session could lead to the two disputed amendments appearing on the ballot twice each, in slightly different forms. Republicans dismissed these concerns.

The new language appears to account for a number of issues the three-judge panel laid out earlier this week, though. The Board of Elections amendment now deals only with that board, removing a section that would have asserted the General Assembly’s power to appoint hundreds of other state boards and commissions now handled by the governor.

This was the change that apparently swayed Martin.

Democrats continue to complain that the Board of Elections, which has been the subject of legal wrangling between Cooper and the GOP majority for two years now, would have an even number of members as contemplated in this amendment. With appointments essentially decided by the legislature, and coming equally from the majority and minority parties, it’s is set up to deadlock, Democrats argued.

When that happens over voting plans, for example, those plans default to the minimum requirements in state law. Deadlocks would mean less Sunday voting and fewer early voting locations, Democrats said.

The current board has nine members, with the governor deciding appointments in a way that essentially gives his party a one-seat advantage.

In his statement, Cooper suggested legislators would use appointment power to avoid ethics investigations that are under the board’s purview.

“Legislators are continuing their scheme to rip up our constitution to eliminate the separation of powers while also creating a deadlocked board of ethics that will protect legislators by stopping corruption investigations,” he said in his statement. “Legislators should be voting to protect our constitution instead of insulating themselves from ethics and corruption investigations.”

Republicans scoffed at criticisms of a truly bipartisan board. House Rules Chairman David Lewis noted that both the N.C. House and Senate have an even number of members. Moore said it should be up to the voters, not the governor or the courts, how to proceed on both of these amendments.

“Let the amendments go to the voters and let the voters decide,” he said.

Functionally, the judicial appointments amendment remains roughly the same as it was when the GOP majority voted it through during a regular session that ended in June, and when they met in a previous special session to tweak the language again. Instead of allowing the governor to fill judicial vacancies largely as he or she sees fit, the General Assembly would make two nominations for each seat, and the governor would choose one.

The new iteration changes the language voters would see on the ballot. It goes from a 34-word sentence that made no mention of the shift from governor to legislature to a 101-word description that lays out that change and the new process.

Republicans have said past governors abused their power to fill judicial vacancies. Former Gov. Bev Perdue named four judges on her way out of office, for example, including two of her own in-house attorneys and her secretary of public safety.

Democrats, wary of the continued tinkering Republicans have done in the judiciary, describe the amendment as a power grab. House Democratic Leader Darren Jackson wondered during a floor speech Friday whether Republicans would use the new power to pack the state Supreme Court.

They could come back into session, as they already plan to do in November after voters approve or shoot down these amendments, add seats to the high court and then fill those vacancies, flipping a Democratic advantage on the Supreme Court now to a Republican one.

“I could be wrong about that, but you could not blame me for that belief based on past behavior,” said Jackson, D-Wake.

After session Moore, R-Cleveland, told reporters this was “absolutely not our intention.”

Assuming the Senate follows the House and approves the new language Monday, voters will be asked to vote for or against the following two statements in November:

“Constitutional amendment to establish an eight-member Bipartisan Board of Ethics and Elections Enforcement in the Constitution to administer ethics and elections law.”

“Constitutional amendment to change the process for filling judicial vacancies that occur between judicial elections from a process in which the Governor has sole appointment power to a process in which the people of the State nominate individuals to fill vacancies by way of a commission comprised of appointees made by the judicial, executive, and legislative branches charged with making recommendations to the legislature as to which nominees are deemed qualified; then the legislature will recommend at least two nominees to the Governor via legislative action not subject to gubernatorial veto; and the Governor will appoint judges from among these nominees.”

All five living former governors have come out against both of these amendments and, earlier this week, all six living former chief justices of the state Supreme Court joined them. Their complaints were not just with the ballot language, but with the substance of the amendments themselves -- the way they would shift power from the governor to the legislature.

That shift is lessened somewhat by the changes working through the General Assembly now, given that the boards and commissions appointments language has been dropped.

Four other amendments on the ballot this November – to require photo ID at the polls, lower the state’s cap on income taxes, increase notice requirements for crime victims and enshrine the right to hunt and fish in the state constitution – were unaffected by Friday’s legislative action.

This post has been updated from the original to reflect the bills’ passage in the House and to update Martin and McCrory’s positions.

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