Late-session legislative push brings renewed attacks on democracy

Late-session legislative push brings renewed attacks on democracy

The current leaders of the North Carolina General Assembly – top members of the state House and Senate, all of them Republicans – rule with iron fists and aren’t squeamish about the tactics they use to hold and even magnify their power.

Sadly for the rule of law and for the public’s confidence that their state is being governed in the public interest, these leaders during their eight-year reign have placed a premium on naked partisanship.

For this they’ve repeatedly been slapped down by judges who’ve carried out their assigned task of upholding the Constitution. Not that those victories for fair play and democracy have come easily or without occasional setbacks. And not that Republican legislators have grown any less determined to cement their partisan advantage before it slips away in a showdown at the polls.

One way they’ve tried and are still trying to cement that advantage involves making it harder for people to vote. Even though tighter election laws apply to everyone, political preference notwithstanding, changes have been calculated to have a greater impact among voters who typically give the edge to Democratic candidates.

A major voter suppression effort enacted in 2013 was blocked by a federal appeals court as discriminating against African-Americans. That failed law included a requirement that voters present a government-issued photo ID – an obstacle for certain people who are otherwise qualified to vote.

Now, with the legislature’s current session heading into a hectic home stretch, there’s a move to put an ID requirement in the state constitution via a referendum to be held along with the November elections. Details about how the ID rule would work — crucial details by any reckoning — wouldn’t be part of the referendum, so voters would have no real idea what they were being asked to approve.

In any case, no amount of fear-mongering about fraud at the polls, fraud that’s practically non-existent, can change the fact that a voter ID requirement mainly would be aimed at reducing the number of votes cast for Democrats.

Early voting targeted

Also shot down by the 4th U.S. Circuit Court of Appeals in its rebuke of the 2013 law were cutbacks in early voting and same-day registration. Those options have proved to be especially popular among Democratic-leaning voters.

A law recently enacted as a parliamentary bolt from the June blue would try again to put the squeeze on early voting. First, Senate Bill 325 would eliminate the Saturday prior to Election Day as an early voting date. No coincidence there, since pre-election Saturdays have drawn the biggest early-voting turnout, favored by minority voters in particular.

Of course it’s not only African-Americans who might have an easier time getting to the polls on the weekend rather than on a workday, and who still might want to vote close to Election Day – to which Republican legislators in effect say, tough beans.

Making matters worse, S.B. 325 puts onerous requirements on counties in terms of the hours and staffing for early-voting sites.

It eliminates the discretion that county boards of election have had to set early-voting hours. On weekdays, all of a county’s sites will have to be open and staffed from 7 a.m. to 7 p.m. during the early voting period that this year begins on Wednesday, Oct. 17.

On weekend days, sites can be open for shorter periods, but schedules will have to be the same throughout a county. Elections boards whose budgets already have been set on the basis of fewer overall hours will be caught in a bind.

The upshot is that some counties are bound to reduce opportunities for early voting. And since eligible people who aren’t already registered to vote can register and then also vote on the same day at early voting sites, that’s another reason why cutting those sites’ hours is likely to suppress overall vote totals.

Language lesson

The bill was rammed through both legislative chambers using what has become a favorite hard-ball tactic – “gut and amend.” The language was stripped from an unrelated bill that had passed the Senate but stalled in the House. Then the early-voting changes were substituted. When that bill gained House approval, it was returned to the Senate for concurrence in the “amendments.”

That meant an up-or-down vote with no further changes. When the Senate complied, the bill went to Democratic Gov. Roy Cooper. All this took place between June 13 and June 15 as opposition from Democrats was swatted aside.

The bill is an excellent candidate for a veto, although Cooper, facing Republican supermajorities, hasn’t had much luck in that area. His vetoes of two bills having to do with judicial elections – S.B. 486, which specifies that candidates’ parties will be listed on ballots, and S.B. 757, which changes the boundaries of election districts in a handful of counties, including populous Wake and Mecklenburg – were promptly overridden by party-line votes on June 19 and June 20.

Both bills were consistent with the legislative leadership’s ongoing push to give the state’s judiciary a more Republican flavor. Judicial elections have gone from non-partisan to partisan, now with party labels in the mix. The governor for good reason complained about election meddling and “contempt for the judiciary,” but he was bucking one of his political foes’ top priorities – installing more judges friendly to their agenda.

No doubt Cooper will summon up another pungent description for S.B. 814, which surfaced suddenly on June 20. The bill proposes yet another constitutional amendment, this time to handcuff the governor when it comes to filling vacancies on the bench. Applicants would be evaluated by a “Nonpartisan Judicial Merit Commission” whose findings would be passed along to legislators. They in turn would recommend two names to the governor, who would have to choose between those two.

Let’s say the legislature and the governor were locked in a bitter power struggle – as they happen to be right now. Under the proposed set-up, all lip service to nonpartisanship aside, would anyone want to bet that the governor would be presented with a judicial nominee who shared his outlook on how the laws should be applied? Didn’t think so.

More but not merrier

Nor has the meddling stopped there – far from it. A prime example is the legislative decision to cancel this year’s judicial primary contests. Instead, all candidates who are eligible to serve and who pay the filing fee will be listed on the November ballot. That throws the door open to various kinds of inter-party mischief, with candidates perhaps declaring themselves to be members of a certain party simply to fragment another candidate’s support.

The state Democratic Party sued to block that arrangement after it was enacted last fall. It objected that it was being denied a proper chance to select and feature its favored candidates – presumably, candidates who were regarded as strong contenders.

A federal judge in Greensboro, Catherine Eagles, granted an injunction against the law, but the injunction was lifted in February by a panel of judges from the 4th U.S. Circuit Court of Appeals in Richmond. Judge Eagles then heard arguments in the lawsuit earlier this month. On June 19, she notified attorneys that she would find for the defendants, meaning no primaries would take place.

As a practical matter, primaries would have been difficult to conduct at this phase in the election cycle. But the upshot is that Republicans are well on their way to staging judicial elections this year in which they can maximize their chances of retaining a contested seat on the state Supreme Court and of winning the three pending races for seats on the Court of Appeals. Those courts consider challenges to state laws under the state constitution.

The lack of primaries means that ballots will be crowded and confusing. For example, a 2014 election for the Court of Appeals that was held without a primary drew 19 candidates, and the winner (a Republican) received just 24 percent of the vote. The court’s credibility had to suffer as a result.

All of which brings us to what could be defined as the root problem with a legislature apparently bent on solidifying Republican influence across government, the better to pursue goals that so often work against the interests of ordinary citizens – especially those citizens on the economy’s ragged edge.

North Carolina’s legislature has achieved national recognition in the dubious category of power aggrandizement. It has done so by mastering the dark arts of gerrymandering, by which election district boundaries are drawn to reward the map-drawers and punish their opponents.

Maps for the state’s congressional districts and legislative districts as well have been tossed by federal courts as discriminating against African-Americans whose votes were devalued. New lines have had to be drawn. The burning issue now is whether the revisions also are tainted by gerrymandering geared to partisanship rather than race.

That was precisely the conclusion reached in January by a three-judge federal panel, regarding districts for this state’s members of the U.S. House. Legislators were told to adjust boundaries that had produced a delegation of 10 Republicans and three Democrats, even though GOP candidates had tallied just 54 percent of the statewide vote. But the U.S. Supreme Court – with partisan gerrymandering cases from Wisconsin and Maryland already on its docket – stayed the lower court ruling while those two cases were being sorted out.

Tar Heel focus

The big news from Washington on June 18 was that the justices had declined to use either case to set a standard for what amounts to unconstitutional partisan gerrymandering. And that raises the question: Could North Carolina’s case become the one that tells the tale?

All along, the court has conveyed its distaste for the way lawmakers taking advantage of today’s high-tech mapping capabilities can stack the electoral decks in their party’s favor. Yet the process of drawing district lines is so inherently political that the justices are reluctant to infringe on legislative prerogatives. Unless, that is, constitutional rights are being violated.

The Wisconsin and Maryland plaintiffs (Democrats and Republicans, respectively) were rebuffed because the justices decided they lacked proper standing to sue. But rather than simply having their cases dismissed, the plaintiffs were given another chance to build their arguments in the lower courts. Justice Elena Kagan, in a concurring opinion, laid out what amounts to a road map showing what they could do to succeed.

As it happens, that guidance seems to dovetail with arguments North Carolina Democrats have made about how partisan gerrymandering has harmed their voters and their party, which arguably has a constitutional right not to be discriminated against.

Fairness in elections, and widespread access to the polls consistent with honesty and accuracy, are essential characteristics of any democratic system worthy of the name. So we have to hope that the Supreme Court finally sees its way clear to crack down on the gerrymandering for partisan purposes that has helped the legislature’s Republican majority retain power and impose its will.

For that’s what it likely will take to put this state back on the road toward the policies of social, economic and environmental justice that give all North Carolinians a fair chance to live fulfilling lives.

[Editor’s note: On June 25, the Supreme Court remanded the North Carolina gerrymandering case to the federal district court based on the same rationale employed in the Maryland and Wisconsin cases.]

Steve Ford, former editorial page editor at Raleigh’s News & Observer, is now a Volunteer Program Associate at the North Carolina Council of Churches.