Why is this a problem? Because legislative power for the past several years has been used to further an agenda in which the needs and concerns of many ordinary North Carolinians, so far as government might be able to address them, scarcely matter.
Standing as top legislators’ only significant obstacle has been the judiciary, both federal and state.
Federal judges have applied the U.S. Constitution to invalidate laws with the effect of suppressing minority voting rights and allowing lawmakers to choose their own voters through gerrymandered districts.
Their counterparts on the state bench have sought to enforce the state constitution’s principle of three separate governmental branches with each having the leeway to do its assigned job.
An administration in Washington angling to make the federal judiciary more conservative may weaken that line of resistance to North Carolina’s legislative overreach. But in Raleigh, top legislators want to take the bull by the horns. The way they see it, that means 1) changing the constitution and 2) changing the judges.
The slate of proposed constitutional amendments to be voted on in statewide referendums this fall includes a dramatic shift in the way judicial seats are filled when incumbents leave office in the midst of their term. The legislature, which now plays no role, would assume a major one, and the governor would see his or her role diminished.
No amendment was needed, however, in order for legislators to overhaul this year’s judicial selection process in hopes of boosting their preferred candidates – ones seen as friendly to Republican power plays. And of course, in hopes of derailing the others.
Not their type
Anita Earls, a Democrat running to oust Republican Justice Barbara Jackson, is a leading civil rights attorney. She gave up the executive director’s post at the Durham-based Southern Coalition for Social Justice, which she founded, to make her bid for the state’s high court.
At the Coalition, Earls helped bring largely successful lawsuits challenging the way legislative and congressional districts were drawn to help Republican candidates. She is careful to explain her belief that judges should follow the law, not make it. But her dedication to equal opportunity as guaranteed by the Constitution marks her as someone who would take a skeptical view of any law treating some citizens as more equal than others.
The prospect of Earls joining the Supreme Court – which would give Democrats a 5-2 majority – has had the Republicans on Jones Street scurrying. They already had eliminated the usual judicial primary elections, meaning that multiple Democratic candidates might split the November vote to a Republican’s benefit.
They even loosened the rules so a candidate’s party affiliation would be listed on the fall ballot according to his or her affiliation when he or she filed to run. How convenient, if someone who had been a Republican wanted to change parties and run as a Democrat along with Earls. A shadowy group linked to GOP campaign consultants even sent out mailers trolling deceptively for aspiring Democratic judges.
Imagine, then, the gnashing of teeth when Raleigh lawyer Chris Anglin gave Republicans a dose of their own medicine.
Anglin changed his registration from Democratic to Republican in early June. Then, as the window to get on the ballot was closing, he filed to run for the Supreme Court. So now it was Justice Jackson who risked seeing GOP votes siphoned away while Earls had the Democratic label to herself.
On the other foot
Denying Republican charges that he was a Democrat ringer out to sabotage the incumbent, Anglin — a former independent who says he voted for Republicans George W. Bush and Pat McCrory — said his goal was to speak for “disaffected, conservative, constitutional Republicans” who support an independent judiciary free of partisan manipulation.
Republican chiefs weren’t impressed. They used the latest of their spur-of-the-moment extra legislative sessions to pass a law meant to foil Anglin while diluting any advantage Earls would gain from his presence on the ballot.
How to do that? Simply reverse the law they’d passed before – the one they hoped would crowd judicial races with Democrats but instead came back to bite them.
Now, for their party affiliation to be listed on the ballot, candidates would have to have been registered with that party at least 90 days before filing. Anglin could continue to run if he wanted, but not with an “R” beside his name.
During a testy debate, Democratic Sen. Jeff Jackson of Charlotte cut to the core: If Anglin had been a Republican who switched parties and filed to run against Earls as a Democrat, would the legislative majority be ramming through the same change in the rules? To ask the question was to answer it.
Cooper didn’t have to ponder for long before issuing yet another in his string of vetoes. House and Senate leaders, secure in their super-majorities, vowed that another override would follow. Still, they may have to contend with legal challenges. Kids on a playground can see the unfairness in doing the sort of rules flip-flop that legislative chiefs want to do.
The extra session has had another ugly piece of business on its schedule. It involves the aforementioned constitutional amendments — which are either unnecessary, cynically partisan or destructive of tried-and-true democratic principles. In some cases, all of the above.
The referendum language set to appear on ballots typically does a poor job of describing the proposed changes. And those changes would have to be followed up with legislation that hasn’t yet been put on the table where voters can see it. For instance, the amendment embedding in the state constitution a requirement that in-person voters show a voter ID doesn’t specify the type of ID or who might be exempted, such as someone who had neither a driver’s license nor birth certificate.
Another amendment — whose main effect would be to take away the governor’s authority to appoint members of numerous boards and commissions, thus making it harder to carry out the platform on which he or she was elected – would be presented via an evasive description that doesn’t even mention the governor.
Under a law enacted in 2016, a panel consisting of the state attorney general, the secretary of state and the legislature’s chief administrative officer was to be responsible for writing brief titles or “captions” explaining proposed amendments. The captions would appear on the ballot.
But Republican legislators couldn’t abide the prospect of a panel whose members would include two Democrats (Attorney General Josh Stein and Secretary of State Elaine Marshall) along with just one Republican (Legislative Services Officer Paul Coble) writing those captions. The fear, plainly, was that voters might see some information that hadn’t been crafted to conceal the amendment’s true impacts.
So when legislators gathered on July 24, by day’s end they had enacted and sent to Cooper a bill stripping the panel of its responsibility to write those ballot captions. Proposed amendments would have no title except simply “Constitutional Amendment.” No wonder Cooper again brought down his veto stamp. And no wonder top legislators again vowed to override.
This is a legislature that wants to bend the judicial branch to its will – to put people on the bench viewed as reliable allies who will go along with its efforts to consolidate power and enact its small-government, anti-regulation agenda catering to the privileged.
The N.C. Council of Churches, mindful of the harm the proposed amendments would do and of the motives driving them, stands in opposition to all six. And it recognizes the hypocrisy of legislators who tilt the rules for judicial selection to help their favored candidates – the same judges who determine whether laws enacted by those legislators are constitutional. That’s what we’re dealing with here, and the well-being of many of our fellow North Carolinians hangs in the balance.
Steve Ford, former editorial page editor at Raleigh’s News & Observer, is now a Volunteer Program Associate at the North Carolina Council of Churches.