RALEIGH -- In 1996, North Carolina voters amended our state constitution to permit the governor to veto most legislation. That amendment put North Carolina's governor on the same footing as those in the other 49 states. If the governor vetoes a bill, it won't become law unless it is later approved by three-fifths of each house of the General Assembly - 11 additional votes over a simple majority in the state House and four additional votes in the Senate.
Vetoes in North Carolina were extremely rare for the first 14 years after the amendment. This was largely a function of effective control by the Democrats of both the legislative and executive branches. All that changed in 2010 when the Republicans took control of both houses.
During this year's legislative session, the governor vetoed nine bills, on subjects ranging from abortion waiting periods to changes in medical malpractice laws. More than half of the vetoes were overridden.
Several bills, however, couldn't get past the veto to become laws. One of those - the "Act to Restore Confidence in Government by Requiring that Voters Provide Photo Identification Before Voting" - fell four votes short. It would have required North Carolina voters to present photo identification - a driver's license, passport or other government photo ID - before voting.
The proponents of the bill indicated a concern with voter fraud. The bill's opponents, including the governor in her veto message, saw the bill as an impediment to voting, particularly among elderly, poor and minority voters.
Having failed to override the governor's veto, some proponents have suggested a novel plan to circumvent the veto on Voter ID and potentially on veto-related other issues as well. That plan revolves around an exception to the governor's veto power for so-called "Local Bills" covering fewer than 15 of North Carolina's 100 counties.
Under the Local Bill approach, the General Assembly could theoretically pass a series of bills each instituting a Voter ID requirement in fewer than 15 counties but stopping short of 51 counties (another constitutional requirement).
This approach would create a statewide patchwork quilt of Voter ID requirements where, for example, voters in Durham County would be required to show a photo ID while Orange County voters would not. Even putting aside that anomaly, the Local Bill approach raises questions of serious constitutional infirmities that could set up a train wreck between the governor and the General Assembly. Three problems, in particular, counsel strongly against this approach.
First, it would necessarily impose an unfunded mandate on the counties singled out for the new requirement. The vetoed Voter ID bill appropriated state funding for voter education and a new ID that could be provided to voters without photo IDs. Those expenditures are required under federal law so that voters are not unconstitutionally disenfranchised. Under the Local Bill approach, in order to fall into the no-veto exception, the state constitution requires that no funds be appropriated from the state treasury. Therefore, counties will need to spend their own funds in order to implement Voter ID requirements foisted upon them.
Second, a further state constitutional requirement for a veto-proof Local Bill is that it not be a "general law" as defined under North Carolina law. The problem here is that the precedent on local versus general laws is far from clear. Just because a law applies in fewer than half of North Carolina's counties does not make it a local law. As the North Carolina Supreme Court has ruled, a law that applies in just one place - even a law requiring creation of a single public pedestrian beach access in Carteret County - can be a general law based on its subject matter.
Thus, an attempt by the General Assembly to fashion a Local Bill on Voter ID could face a gubernatorial veto in any event, or a lawsuit to enforce the constitutional veto right.
Third, and most sweepingly, the attempt to create a new ID requirement for voters could run afoul of the state constitution's provision that exclusively defines "qualifications" of voters and removes that subject from the realm of legislative enactments. Therefore, a constitutional amendment, rather than a simple law, would be necessary in order to implement Voter ID. (A similar law in Missouri was struck down on this ground.)
Whether Voter ID is good policy is debatable. Whether it can be accomplished by an end-run on the governor's veto power is not. Any attempt to enact Voter ID in North Carolina piecemeal is doomed to fail.
Burley Mitchell is a former chief justice of the state Supreme Court and now a partner in the Raleigh office of Womble Carlyle Sandridge & Rice, PLLC. Press Millen is a trial lawyer in that firm.
