LGBT special session continues NC legislature’s limits on local government power

The state legislature’s special session to strike down a Charlotte nondiscrimination ordinance is the latest effort by lawmakers to limit the power of municipal and county governments.

Wednesday’s session was the first time in at least 20 years that the legislature has made an unscheduled return to Raleigh to revoke a local government decision. Republican leaders said they had to act before the ordinance would take effect April 1. They were concerned about a provision that allowed transgender people to use the bathroom of the gender with which they identify.

The discrimination bill’s sponsor, Rep. Dan Bishop, a Republican from Charlotte, said his city’s ordinance is an example of special interest groups bypassing the checks and balances of the state government to pass their agenda.

“Here’s a neat trick: Let’s just go to a city council where you can find a handful of radicals – under the influence of an activist group that’s got a lot of money from out of state – and get six of those people to enact something that goes to the heart of statewide interest,” Bishop said. “That is the picture of subversion of the rule of law.”

Bishop’s view of local government’s role and authority in North Carolina is common among House and Senate leaders.

Since Republicans won control of the legislature in 2010, they’ve curbed zoning powers that allow localities to regulate how land is developed and how homes are designed. They’ve changed how school boards, city councils and county commissioners are elected in a way that favors GOP candidates. And they took control of Asheville’s water system and Charlotte’s airport from those cities’ leaders.

Michael Bitzer, a political science professor at Catawba College in Salisbury, says some of the tension stems from the fact that Democrats typically control urban governments.

“With the urban trend of Democratic dominance in the state and the authority of the legislature to control local governments, the power to dictate to local governments apparently best resides in Raleigh, per today’s Republican political philosophy,” Bitzer said. “The GOP has taken it to a whole new level when it comes to where power best resides.”

But even Republican town leaders aren’t happy with the trend. Vivian Jones, who has been mayor of Wake Forest for 15 years, said the legislature’s philosophy is “unfortunate.”

“I understand that they would like for ordinances to cover the whole state and that kind of thing, but different areas are concerned about different things,” Jones said. “I think local government is closer to the people, and we are both the man on the street, and at election time accountable to our citizens.

“We should have the authority that we need to run our towns.”

Under the state constitution, legislators and the governor have plenty of legal latitude to limit local governments’ authority. The constitution says the legislature “may give such powers and duties to counties, cities and towns, and other governmental subdivisions as it may deem advisable.”

During Wednesday’s special session debate, Republican Rep. Nelson Dollar of Cary read aloud from a recent N.C. Supreme Court decision that found that cities are “subject to almost unlimited legislative control.”

Dollar said local leaders should stick to the duties specifically delegated to them by the state. “They do a tremendous job, and we want them to continue to focus on those issues: Police, fire, parks, recreation, economic development, water, wastewater, recycling, sidewalks,” he said. “We do not need any municipal government acting outside of its authority, especially when they are trying to make political statements.”

Home rule states

Not every state is set up this way. Ten states, including South Carolina, have what’s known as “home rule,” where the state constitution delegates certain powers and duties to counties and municipal governments.

“In those states, the legislature is much more limited in its ability to preempt and invalidate local legislation,” said Frayda Bluestein, a professor at the UNC School of Government.

Power struggles between local and state leaders still occur in home rule states, Bluestein said, but they’re typically resolved in court. In North Carolina, however, cities don’t have much luck suing the state when they lose authority.

That’s why the controversial discrimination law, signed by Gov. Pat McCrory on Wednesday, hasn’t prompted a lawsuit threat from the Charlotte City Council. Opponents of the law will likely try instead to make a legal claim that it creates unconstitutional discrimination.

Local leaders say they’re well aware that their decisions can be scrapped by a single piece of legislation.

“We’re always aware that everything we do will be scrutinized,” said John Burns, a Wake County Commissioner and Democrat. “There’s this constant sort of expectation that others in the legislature will take the opportunity to score partisan points when we’re trying to do what’s best for our county.”

Thomas Crowder, a Raleigh city councilman who died in 2014, once called The News & Observer to request the paper postpone a story about his initiative to stop people from parking in their front yards. Crowder wanted the story to be published after legislators left town, so they’d be less likely to trash the parking ordinance. The N&O did not postpone the article.

Some Democrats on county commissions and city councils have found their own political careers threatened by state legislators. Burns – who was elected in a Democratic wave in 2014 – will soon live in the same district as two other commissioners from his party, under a bill sponsored by Republican Sen. Chad Barefoot of Wake Forest. That means that if all three seek re-election in 2018, they’ll have to run against each other.

Burns said the senator proposed the new districts “on grounds that we weren’t representing people properly, and we’d only been in office three months.”

Outside influences

Legislators say local politicians are susceptible to outside influences. While statewide bills must get support from a majority of 120 House members and 50 senators – and often pass through lengthy committee hearings – town boards and county commissions are smaller.

Rep. Pat McElraft, an Emerald Isle Republican, said Wednesday that her town recently caved in to demands from the environmentalist Sierra Club. The group has been asking coastal communities to pass resolutions opposing offshore oil drilling.

“Those town commissioners came up to me and said they were forced into doing it or they couldn’t get any other work done” because the group repeatedly spoke at meetings, McElraft said. “There are pressures that are put on these town commissioners, pressures to vote a certain way which they regret.”

Jones, the Wake Forest mayor, says that’s not how town government operates. “We certainly don’t try to change things because we have a group of people come and ask us to,” she said. “We have to look at how it affects everybody and not just a few people.”

More efforts to limit local government are possible when the legislature returns April 25 for its short session. And on Thursday, a 12-member legislative committee will meet to discuss the fate of special tax districts set up by cities to fund downtown development and neighborhood projects.

The committee was set up in the wake of a budget proposal last year that would have established a referendum process for residents seeking to kill the tax districts, known as municipal service districts. Some city leaders criticized the provision, and legislators decided to drop the proposal and study the issue further.

Local officials said they’re worried about how far legislators might go in the future. “There’s a general feeling that the state is going a little too far and taking a little too much from municipalities,” said Holly Springs Mayor Dick Sears, who left the Republican Party several years ago to become an independent.

This story was originally published March 26, 2016 at 10:09 PM with the headline "LGBT special session continues NC legislature’s limits on local government power."