Update: After this article was written, Gov. Cooper did veto House Bill 1029, as he was urged to do. He criticized the bill as potentially “devastating to the cause of fighting election fraud” because of the new layer of secrecy imposed on investigations into campaign finance violations. The veto was overridden on Dec. 27 by votes of 68-40 in the House and 28-12 in the Senate. One Democratic member of each chamber supported the override. The legislative session now has concluded.
North Carolina’s Republican-controlled General Assembly has tried every which-a-way to hamstring Democratic Gov. Roy Cooper’s oversight of what used to be known as the State Board of Elections and thus of how the state’s elections are carried out.
Legislators of course haven’t cast their efforts in partisan terms. They’ve tried instead to cloak them in bipartisanship – implying that Cooper can’t be trusted to make sure, via his appointees to the board, that elections are run fair and square.
But the intended result has been clear all along: Republican legislators wanted to diminish the role of the state’s chief executive in elections oversight as part of their wide-ranging campaign to curtail his authority in a range of areas.
The governor’s loss would be the General Assembly’s gain as he no longer would choose a majority of the board’s members. Giving the legislature equal say in those appointments would be a recipe for deadlock in decisions about voting procedures, contested elections and campaign finance violations and thus play into Republican hands.
Well, the state Supreme Court saw through the ploy and blocked it, concluding that it would trample on the governor’s rightful authority – an authority that belongs to a duly elected governor of either party.
Twisting and turning, legislators tried to address the court’s objections without abandoning their overall goal. They went so far as to ask voters to amend the state constitution in a way that would override the court. It didn’t work, as the proposed amendment was shot down.
Following that November setback, there’s been a surrender of sorts. Yet the outcome has been less than a complete victory for the cause of fair, honest elections.
Back to the future
Legislative chiefs, in their failed revamp of the elections board, first combined it with the board charged with enforcing standards of ethics for state officials. That often means deciding when officials, including legislators themselves, have a potential or actual conflict of interest.
House Bill 1029 would divide the Bipartisan State Board of Elections and Ethics Enforcement – shades of Dr. Dolittle’s two-headed pushmi-pullyu – into two panels again. The bill now is on Cooper’s desk after final passage on December 12. Notably, it would revert to the elections board’s traditional make-up: five members, each appointed by the governor, with no more than three from the governor’s party.
That arrangement was fine with the legislature before Cooper defeated Republican incumbent Pat McCrory in 2016, and it would concede the Supreme Court’s point that a governor’s responsibility to see that the laws are faithfully executed is compromised when he can’t choose a board majority that shares his views.
Here’s the catch. Under H.B. 1029, a fog of secrecy would descend over what has proved to be a sensitive and troublesome issue for many officials – whether or not the laws pertaining to the financing of campaigns have been abused or violated.
Now, when questions arise about someone’s compliance with those laws, the elections and ethics board does the initial investigation. Whether an investigation is under way becomes a matter of public record.
The board can proceed to hold public hearings on alleged violations, during which the subject of an investigation has a chance to publicly clear his or her name. If the evidence indicates that a law was indeed broken, the board refers the matter to the Wake County district attorney in Raleigh for possible prosecution.
Members of the public, often via press coverage, can follow the case as it moves through the pipeline and draw their own conclusions about its seriousness. Naturally, when an official is found to have cheated in his campaign finance compliance – perhaps by not properly disclosing the sources of funds or by accepting funds beyond legal contribution limits – a political opponent can take him to the woodshed. That’s a good way to help keep candidates honest.
It’s not as if H.B. 1029 would issue get-out-of-jail-free cards to every campaign finance scofflaw. But the public no longer would be guaranteed that allegations of misconduct would be disclosed.
When the elections board catches wind of possible violations, it would have to ask the newly labeled State Ethics Commission’s opinion as to whether the case should be referred for prosecution. The ethics panel’s recommendations would be confidential and apparently not subject to public records requests.
The bill is silent on whether public hearings on the allegations would be held. But if the board believed a violation had occurred, it would refer the case – including the ethics panel’s confidential recommendations – to a district attorney. Cases involving legislators would go to the D.A. in whose territory they live, where perhaps it’s more likely that some slack would be cut. It’s easy to envision a scenario in which an investigation wouldn’t come to light at all unless it resulted in criminal charges.
Supporters of the change argue that it would be a shield against unfair publicity resulting from unfair accusations. But disclosure of alleged violations amounts to a preventative against look-the-other-way favoritism that excuses campaign finance cheating because of the offender’s clout or because it’s arguably just a bookkeeping issue. Publicly disclosed investigations that have targeted officials of both parties in recent years, some resulting in convictions, show that the system wasn’t broken and didn’t need fixing – even if legislators on the hook didn’t like the embarrassment.
Cooper may be glad to see legislators now giving up on their efforts to horn in on oversight of the elections board, a concession that has drawn support from some of his fellow Democrats. But why should compliance with a Supreme Court ruling be accompanied by changes that make life easier for campaign finance scofflaws? And why push those changes through, as they were, without careful public vetting? There are no good reasons – and Cooper ought to say so with his veto stamp.
9th District wrinkle
The governor made a similar statement of principle on December 14 when he vetoed Senate Bill 824, which put into effect a requirement that voters present a photo ID even though some eligible voters are likely to have a harder time casting their ballots.
Republican legislators were set to override that veto in the week before Christmas. That’s despite the mushrooming scandal over absentee ballot fraud in the 9th Congressional District that cynical backers of voter ID as a fraud preventative never anticipated and that S.B. 824 makes only a half-baked effort to address.
Coincidentally, H.B. 1029 has become a last-minute vehicle for Republicans to push for a complete do-over in the 9th District, where Republican Mark Harris’ narrow victory over Democrat Dan McCready has been clouded by allegations of illicit absentee ballot “harvesting.”
The bill calls for a new primary as well as a general election if the elections board decides the November 6 results were tainted. That amounts to an attempt to cut Harris loose as damaged goods and to give another GOP candidate a shot at retaining the seat now held by U.S. Rep. Robert Pittenger, whom Harris defeated in last spring’s primary.
A Cooper veto doubtless would be cast as an effort to help McCready if another election is ordered. But the governor should be prepared to shrug off those barbs so he can make a statement about the importance of openness in the pursuit of compliance with campaign finance laws.
A veto in December – while Republicans still hold a veto-proof majority – would be symbolic. However, with Democrats gaining seats in both the state House and Senate, Cooper come January will enjoy a power boost thanks to the voters, not only to the courts. That’s a step toward state government leadership that properly values the needs and aspirations of ordinary citizens, including fair elections and equal opportunity at the polls.
Steve Ford, former editorial page editor at Raleigh’s News & Observer, is now a Volunteer Program Associate at the North Carolina Council of Churches.