Legislators on Monday approved their second attempt at writing constitutional amendments, just days after their first attempt was thrown out in court for being potentially misleading to voters.
Barring any other legal struggles, the new language passed Monday is expected to replace the old language that the court system found unacceptable — although Democrats said the new versions of the amendments are hardly better than the old ones.
Both amendments would transfer power from the governor to the legislature. One involves the N.C. Board of Elections and Ethics Enforcement, and the other is about appointing new judges.
“Once again it’s false, it’s misleading,” Sen. Floyd McKissick, a Democrat from Durham, said during Monday’s debate on the Senate floor.
The legislature was back in session only because Democratic Gov. Roy Cooper won a lawsuit earlier this month. Cooper successfully argued that the wording of two of the six constitutional amendments Republican lawmakers agreed to put before voters this fall could be misleading.
Republican lawmakers defended the new versions of the amendments Monday, and said it’s ultimately up to voters this fall to decide whether the amendments should be enshrined in the state constitution.
“I think it’s very clear,” said Sen. Harry Brown, a Republican from Jacksonville. “I don’t think there’s any deception in these amendments.”
Elections board amendment
The first version of the elections board amendment would have taken away Cooper’s power to fill positions on the board as well as a number of other positions within state government not related to the elections board. But the ballot language did not explain the numerous other non-election changes, which was part of the reason why a judge ordered it re-written.
Instead of re-writing the description of the amendment that will appear on the ballot, legislators opted in the new version to remove the part of the amendment that would have taken the governor’s power over all those other jobs not related to the elections board.
The part of the amendment dealing with the elections board itself remains unchanged, and the ballot will tell voters that the amendment will “establish an eight-member Bipartisan Board of Ethics and Elections Enforcement.”
Some Democrats objected to that language, since the elections and ethics board is already bipartisan. They said the ballot language might give voters the impression that it’s not.
The amendment would also remove Cooper’s power to pick members of the board, except from a list of choices provided by the legislature. It would also change the board from having nine members to eight members, which could lead to ties and delays on controversial decisions. Currently the board has four Democrats, four Republicans and an unaffiliated member, but the amendment would remove the spot for an unaffiliated member.
“Why would you ever want an eight-person board?” McKissick asked. “And yet, that’s what you’ve done here.”
The other amendment deals with who gets to fill vacancies whenever judges die, retire or otherwise leave office.
The first version also contained a clause that led many to claim it would have given legislators the ability take away the governor’s veto power. Even though Republicans strongly disagreed with that analysis originally, the changes they made Monday took that part out of the amendment.
The amendment makes a number of changes, all of which generally would limit the governor’s power to appoint new judges.
Legislative leaders have sometimes been frustrated with the state’s court system, which has overturned a number of new laws passed since Republicans took control of the state House and Senate in 2011. They previously considered new laws that would have ended judicial elections entirely and could have given the legislature the power to appoint all judges in the state, but decided against those plans for now.
The new ballot language approved Monday says the amendment, if passed, would end “a process in which the Governor has sole appointment power.”
But Democrats said that is simply false, and some predicted they might have to come back yet again to make further tweaks before the election.
The amendment language “didn’t make sense before and doesn’t make sense now,” said Sen. Toby Fitch, a Democrat from Rocky Mount who is also a retired judge.
War of words
Earlier this month, every living former governor and chief justice of the state supreme court called on voters to reject both amendments. There were Republican and Democratic politicians in both groups who said they fear the amendments would seriously erode the system of checks and balances that government ought to have.
On Monday, several Democrats tried to offer their own tweaks to the bills, which they said would’ve added necessary context and facts to the ballot for voters. But all their attempts were denied.
“If we want to avoid ballot language that is misleading and deceitful I would recommend you vote on this,” Democratic Sen. Jay Chaudhuri of Raleigh said in support of his own suggestion, just before it was voted down.
Rep. Davis Lewis, a Republican from Harnett County who sponsored the new versions of both amendments, said Monday that he believes the new language “addresses all concerns of the court.”
The House of Representatives already passed the new versions of the amendment proposals on Friday, so Monday’s vote in the Senate made the changes official.
Unlike with most other bills, the governor does not get the chance to veto constitutional amendment proposals because they are required to pass with a veto-proof majority in the first place.
Over the weekend Cooper’s official Facebook page quoted him saying, “The people deserve a truthful ballot. These amendments remain dishonest and dangerous like the old ones that the court ruled unconstitutional.”