Will courts block legislative leaders’ desperate power plays?

Will courts block legislative leaders’ desperate power plays?

- in Progressive Voices, Top Story

A summer of hectic twists and turns has made it increasingly clear: The North Carolina General Assembly’s ruling Republicans have been driven by desperation.

They must be desperately worried that their lease on unbridled power is about to expire. So, while they still have the chance, they’ve set about trying to change the very structure and dynamics of state government to extend their influence even if the elections this fall work against them.

They’ve gone about it with a contempt for long-standing principles of checks and balances. And not surprisingly, one result has been a vigorous legal pushback. Even before the voters finally speak, the state’s courts will have a chance to call this effort what it is – an unprecedented attempt by legislative Republicans to ensure their dominance – and to bring it to a screeching halt. Which they should.

Lawsuits have been filed by Democratic Gov. Roy Cooper, whose powers would take a beating under proposed changes to the state constitution, and by civil rights and environmental advocates.

Also in the fray is a candidate for the state Supreme Court who legislators have said cannot have his Republican affiliation listed on the ballot. They had to return to Raleigh for an extra session to strip him of his ballot label – worried that he’d siphon votes from an incumbent Republican justice running for re-election in a three-person field that includes a strong Democratic candidate.

Cooper vetoed that move, but as usual the veto was overridden by the large Republican majorities in the House and Senate. Even Cooper’s Republican predecessor, Pat McCrory, couldn’t count on making his vetoes stick.

Gerrymandered election district boundaries giving an unfair advantage to Republican candidates – unfair as declared by federal judges — have swelled the party’s legislative ranks. Yet Republican prospects have dimmed as the party labors under the weight of a reckless president to whom many voters can’t wait to send a message of rebuke. And the more desperate the legislators’ tactics, the more they energize voters who are fed up.

Playing defense

Anticipating a loss of seats that at least could put teeth in the governor’s vetoes, top Republicans came up with an audacious plan.

They would rework parts of the state constitution to shield their laws from court challenges and to drain significant power from the governor. He or she would be deprived of authority that in modern times properly has been exercised by the state’s top executive official, chosen by all the state’s voters.

Appointments to dozens of the boards and commissions that oversee the government’s business would become the prerogative of the legislature, not the governor – a drastic blow to his or her effectiveness. And when filling judgeships that became vacant during the middle of a judge’s term, the governor would have to choose between two candidates recommended by the legislature. So legislators would assume a key role in picking judges who might hear challenges to their laws.

Constitutional amendments must be approved by the voters in referendums. Bills calling for those referendums were rushed to passage in late June. All were adopted on party-line votes after scant public review.

And here’s a further insult to notions of democracy. Although the bills spelled out six sets of constitutional changes, the accompanying referendums were framed so that the changes’ actual impacts largely were hidden.

For example, voters who hadn’t gotten themselves up to speed before going to the polls would have no way of knowing they were being asked to eviscerate the governor’s appointment powers.

Cooper’s lawsuit calls that ballot question “rotten from root to branch” because it’s so incomplete and misleading. When three judges assigned by Chief Justice Mark Martin to consider Cooper’s challenge convene on Aug. 15, they are sure to hear arguments in that vein.

Change orders

North Carolina’s constitution is supposed to reflect the will of the people as to how they should be governed, including how power should be allocated among the legislative, executive and judicial branches.

The document is not written in stone. It’s recognized that amendments sometimes are necessary and desirable. But the public must be given a fair chance to assess proposed changes.

If those changes, as presented in boiled-down ballot summaries to which voters are asked to declare themselves “For” or “Against,” are disguised, the referendums cannot be regarded as credible gauges of public opinion.

That’s doubly so when amendments would trigger legislation that has yet to be unveiled. An egregious example: the amendment embedding in the constitution a requirement that in-person voters show a photo ID.

As to what kind of ID, the legislature would settle that after the amendment was approved. Given its track record of trying to use an ID law to hold down the number of Democratic-leaning voters, there’s little reason to think the rules wouldn’t have that same effect.

The governor is not allowed to veto proposed constitutional amendments, so Cooper must turn to the courts as he seeks to protect his office from a massive power grab. And in fact, the courts – both federal and state – have been stumbling blocks for Republican legislators during the years they’ve been riding high. Time and again, they’ve been flagged for constitutional violations. So a top priority is to salt the state’s judiciary with people expected to look the other way.

Party puzzle

There’s no disrespect intended toward Justice Jackson in noting that either of her opponents, Democrat Anita Earls or Republican Chris Anglin, likely would take a hard line toward the legislature’s machinations. Earls has spearheaded lawsuits against the legislative leadership over constitutional issues. Anglin is outspoken with his critique.

Although he’d been a Democrat until not long before, Anglin followed existing rules to file as a Republican for Jackson’s seat. Legislators quickly decided that if he stayed in the race, his name would have to appear on the ballot without a party label.

Anglin said, “See you in court.” He filed a lawsuit claiming that he was unfairly targeted by a retroactive rules change and yesterday, Wake County Superior Court Judge Rebecca Holt agreed – saying that she will issue a preliminary injunction that bars the state from printing ballots that don’t list Anglin as a Republican.

When the panel of three Superior Court judges gathers tomorrow to consider Cooper’s suit, also on the docket will be a complaint filed jointly by the state chapter of the NAACP and an environmental group called Clean Air Carolina. That suit challenges four of the six amendments – the pair aimed at the governor, the voter ID provision and one that would lower the state’s maximum income tax rate to 7 percent (it’s now at 5.499 percent).

The NAACP opposes a photo ID law as likely to deter many otherwise eligible people, African-Americans in particular, from voting. Clean Air Carolina sees less effective environmental programs with the legislature picking members of regulatory commissions. And the suit attempts to make a larger point – a legislature elected on the basis of unconstitutional gerrymandering shouldn’t be permitted to make such major changes.

Whatever the courts decide, they’ll need to act promptly if the decisions are to have an effect on the fall ballots. The window to have ballots printed and distributed is shrinking fast.

A reasonable outcome would be for the courts to delay the referendums while arguments proceed as to the amendments’ legitimacy. This much is certain: If they do appear on the ballot, amendments that are the fruit of the legislature’s desperate efforts to hold power – via sweeping constitutional changes engineered through deception – should be rejected by voters who want to see North Carolina governed in the best interests of all.

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