General Assembly Leadership calls Special Session to Rewrite Two Amendments | Eastern North Carolina Now

    Publisher's note: The author of this post is Dan Way, who is an associate editor for the Carolina Journal, John Hood Publisher.

    With an election deadline looming, Republican legislative leaders are calling a special legislative session Friday, Aug. 24, to rewrite two constitutional amendments a three-judge Superior Court panel removed from the Nov. 6 general election ballot.

    GOP leaders maintain the panel erred by issuing a preliminary injunction due to unconstitutionally deceptive ballot language describing the amendments. They shift appointment power for boards and commissions, and for judicial vacancies, from the governor to the legislature. But in the interest of time, and to avoid election chaos, they decided to comply with the order, made public Tuesday.

    House Speaker Tim Moore, R-Cleveland, said in a news release Thursday, Aug. 23, the House will have the required 72 signatures from members to call the chamber into special session Friday.

    In a written statement Senate leader Phil Berger, R-Rockingham, said Lt. Gov. Dan Forest will call the body into special session after receiving the requisite 30 signatures, but would not take up new draft language until Monday.

    This will be the second special session of 2018.

    "The General Assembly will write new ballot referendums in compliance with the court's ruling," Moore said. The proposals "provide a popular bipartisan balance in our state government that will benefit the people of North Carolina, who deserve a voice in considering reforms to their constitution."

    Moore said Republicans "hope this will end the unnecessary litigation, and allow our state to move forward with the democratic process to let the people decide these issues for themselves."

    "I disagree with the court's decision on the merits. It's clear, though, that protracted litigation could delay ballot printing, and only further the chance for voter confusion," Berger said. "Given those circumstances, I support a special session to write amendments that comply with the court order as quickly as possible."

    The court's order removing legislatively passed constitutional amendments from the ballot, denying voters a chance to pass or reject them, hasn't happened since 1934. Lawyers and the judges agreed during hearings on the lawsuits they were in uncharted territory with no direct case law to guide them.

    The preliminary injunction expires at midnight Aug. 31. The order anticipated appeals from all opposing sides, notices of which were already submitted Wednesday, Aug. 22. The order alternatively allowed for the General Assembly to return to Raleigh to correct the impermissible ballot language in time to place revised constitutional amendments on the election ballot.

    Sept. 1 is a hard-and-fast date to begin the 21-day process of preparing, testing, and printing ballots. That's because federal law mandates mail-in absentee ballots must be available 45 days before an election. That deadine falls Sept. 22.

    Both Berger and Moore said Cooper's decision to wait five weeks after the General Assembly passed the constitutional amendments in June before filing his lawsuit on Aug. 6 created the time crunch. The General Assembly passed the bills in late June.

    The newly drafted amendments will require substantial internal legal review, Berger's release said. The proposed amendments will be public for at least three days before final General Assembly action.

    State Rep. David Lewis, R-Harnett, House Elections and Ethics Law chairman, said no action other than rewriting the constitutional amendments would be taken up during the session. He released draft language with the caveat that the drafts are subject to change.

    "The General Assembly has addressed supposed threats to the Governor's veto power, though we do not agree with that claim," Lewis' written release said. The draft says:

    "Constitutional amendment to change the process for filling judicial vacancies that occur between judicial elections from a process in which the appointment is solely at the will of the Governor to a process in which the people of the State will 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 nominees to the Governor via legislative action that would not be subject to gubernatorial veto; and the Governor will appoint judges from among these nominees."

    The draft language for the Bipartisan Ethics and Elections Enforcement Board amendment states:

    "Constitutional amendment to establish an eight-member Bipartisan Board of Ethics and Elections Enforcement to administer ethics and elections law."

    Lewis' release says under this constitutional amendment, the governor "would select two nominees each from recommendations provided by the legislative leaders of the two largest political parties in the House and Senate. This would constitute an eight-member board. Presently that would mean the Governor would select two each from recommendations provided by the Republican leaders of the House and Senate and two each from the Democratic leaders of the House and Senate. The General Assembly could provide for legislation to deal with a gubernatorial refusal to appoint a member within 10 days. It will make no amendments to the Separation of Powers Clause or the Appointments Clause, and would apply only to elections and ethics governance."

    In his suit, Cooper, a Democrat, challenged a constitutional amendment to create a new state elections board, and another amendment transferring judicial vacancy appointments from the governor to the legislature. He claimed the ballot language describing them failed to state the consequences of approving them.

    A majority of the three-judge panel agreed on the state election board amendment, saying it "does not sufficiently inform the voters and is not stated in such manner as to enable them intelligently to express their opinion upon it."

    The court accepted Cooper's argument the amendment shifts thousands of appointments to hundreds of state boards and commissions from the governor to the legislature, but the ballot language didn't mention the effects on the executive branch. Nor did it inform voters the amendment makes significant changes to the governor's constitutional duty to exercise his powers.

    Cooper contended the ballot description of the judicial vacancies amendment deceived voters because it did not mention two new provisions in the proposed amendment removed the governor's veto power over those appointments. That would allow lawmakers to attach unrelated legislation they want to pass to a judicial vacancy bill to avoid a veto.

    A panel majority agreed. By omitting language saying that restriction was tied solely to judicial vacancies, "proposed Bills coupled with judicial appointments would be immune to a veto by the Governor," the order stated.

    The N.C. Conference of NAACP also filed suit to strike those two amendments from the ballot. Clean Air Carolina originally joined the NAACP in the lawsuit. But the court agreed with Berger and Moore the environmental organization lacked standing to bring a court challenge.

    The NAACP unsuccessfully challenged two other amendments - requiring photo ID to vote, and capping the state income tax rate - on the same grounds of being vague and misleading.

    The judges unanimously disagreed, and left those two on the ballot.

    They ruled the tax amendment ballot language "may not be perfect, but it is virtually identical to the wording of the amendment itself."

    Likewise on the photo ID ballot language the order stated, "There can be little doubt whether or not the voters will be able to identify the issue on which they will be voting with respect to this proposed amendment."

    The General Assembly passed six constitutional amendments in regular session this year. In addition to these four, others on the ballot are Right to Hunt and Fish, and Strengthening Victims' Rights.
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