More from the series
North Carolina constitutional amendments
Coverage from The Charlotte Observer, The News & Observer and The Herald-Sun of the constitutional amendments you’ll vote on in the November 2018 elections.
Some fear one of North Carolina’s proposed constitutional amendments could allow state legislators to bypass the governor’s future vetoes.
The amendment is one of six scheduled to appear on the November ballot. As written, it would transfer much of the power to fill judicial vacancies from the governor’s office (currently held by a Democrat) to the state General Assembly (currently controlled by the GOP).
Under the proposed amendment, judicial nominees wouldn’t be subject to the governor’s vetoes. But Democrats worry the bill is written in a way that, if passed, it would allow the legislature to attach an unrelated bill to a judicial nominee to circumvent the governor’s veto.
Why does it matter? Republicans currently hold so many seats in the state House and state Senate that they can override most of Gov. Roy Cooper’s vetoes. But if Democrats break the supermajority this fall, when every seat in the legislature is up for election, Republicans will have a harder time implementing their agenda.
Since Cooper took office, he has appointed 35 people in the court system -- including district attorneys and district, superior, and appellate judges, according to his office.
State Sen. Jeff Jackson, a Charlotte Democrat and attorney, proposed a bill that would clarify the judicial vacancy amendment to block the attachment of other bills. But Republican leaders didn’t consider it.
“Given the opportunity to fix this — and the decision not to — it’s pretty clear they like the idea of passing a constitutional amendment that will let them circumvent a governor’s veto whenever they want,” Jackson tweeted recently.
Josh Stein, the Democratic state attorney general, has made the same argument. To support Jackson’s claim, his office provided an interpretation from the General Assembly’s nonpartisan Legislative Analysis Division.
“Because there is no restriction on adding other matters to these judicial vacancy bills, a court could reasonably interpret that a judicial vacancy bill and legislation on other matters is not subject to the Governor’s veto. Because this would be new language in the Constitution if adopted this fall, a decision on how to interpret and apply that language would ultimately be made by the courts,” Kara A. McCraw, staff attorney and legislative analyst, told his office in a July 31 email.
How the amendment looks
Gerry Cohen, a longtime former head of bill-drafting at the legislature, notes how the proposed amendment is noticeably different from other parts of the Constitution about issues the governor can’t veto.
The N.C. Constitution says the governor is powerless when the legislature adopts bills revising election districts and “no other matter.” Or when it adopts a bill that solely makes an appointment to public office and contains “no other matter.” The “no other matter” language is missing in this case, Cohen said, which could be interpreted as intent.
“The other veto exemptions do say (and no other matter),” Cohen said. “It’s either a lack of understanding of history, a mistake or deliberate.”
It’s unclear how the law would be interpreted. In ruling, judges look at the intent of the N.C. Constitution’s framers as well as the intent of amendment authors.
In a press conference Saturday, Republican leaders said the words “no other matter” aren’t necessary given the proposed amendment’s location in state law.
State Sen. Ralph Hise said state law already “requires the legislation to be narrowly tailored to be in accordance with those sections,” adding, “We have never seen any case where the governor’s veto — the exemption of the governor’s veto — applied broadly to any bill that contained any of these parts. We don’t believe it does it.”
Phil Berger, Republican Senate leader and an attorney, argued that his comments in public could be examined by a judge reviewing the bill’s intent.
“You said that leaving (the words ‘no other matter’) out indicates intent. I would contend to you that our statements at this time — and statements you will hear on the floor that that’s not our intent — is more persuasive, or will be more persuasive as far as a judge is concerned, if this issue ever comes up,” Berger said.
He continued: “We are telling you that our intent is that this constitutional provision would not be appropriate to be used as the attorney general has argued..”
Bob Orr, a former state Supreme Court justice and Republican, said a judge would likely consider Berger’s public comments.
“If the Republicans who voted for this said ‘it wasn’t our intent,’ the only thing that would be considered would be judicial nominations,” Orr said. However, the comments alone may not be the deciding factor.
“I’d give it weight, but smart lawyers would make the case that that’s one person’s opinion,” Orr said. The amendment language “doesn’t make it clear that it’s not some vehicle to circumvent the governor’s veto authority.”
Despite the lack of the “no other matter” language, experts at Duke and Wake Forest universities said they doubted any judge would allow the legislature to exploit such a small loophole.
“I don’t have any explanation for why the usual qualifying language wasn’t inserted. But I have no doubt whatsoever about what a court would do in the event that a legislature might try to exploit the lack of qualifying language by attaching matters unrelated to judicial vacancies to a judicial-vacancy bill,” John Dinan, an expert on the N.C. Constitution at Wake Forest University, said in an email.
“I can’t imagine any situation where a court would do anything other than uphold a gubernatorial veto in such a case and at the very least declare the unrelated material void,” Dinan said.
Jeff Powell, at Duke, agreed with Dinan. He understands why Jackson filed the bill seeking clarification and supports it. But he said it would be “absurd” for a judge to allow the legislature to circumvent a governor’s veto based on the omission of language.
“If you just look at the section of the constitution in isolation, it seems plausible. But we’re not talking about a tweak that’s limited to that section. We’re talking about undoing the changes North Carolina made when we decided to give him veto power,” Powell said.
“The idea that a piddling word choice in the section somehow undoes it is nonsensical,” he continued. “They don’t take a piddling word decision to undo a major structural feature of the constitution of North Carolina.”