Is elections board amendment a victory for bipartisanship? Or a recipe for chaos?

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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.

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It’s just 23 words.

But a proposed amendment to the North Carolina constitution could have far-reaching impact on voters, lawmakers and political candidates.

One of six amendments on the ballot next month, it would change the make-up of the State Board of Elections and Ethics Enforcement as well as the way its members are appointed.

The wording on the ballot is simple: “Constitutional amendment to establish an eight-member Bipartisan Board of Ethics and Elections Enforcement in the Constitution to administer ethics and elections law.”

Essentially, it would change a nine-member board to eight members, half Democrat and half Republican. It also would give legislative leaders, not the governor, the right to choose members.

Supporters say it would bring needed bi-partisanship to a divided board.

Rep. Davis Lewis, a Harnett County Republican, said the amendment would prevent over-reach by a governor. And he said a new board would replicate the old eight-member ethics board.

“I believe it is possible to get people willing to work together and reach consensus,” he said.

But critics say it would be a recipe for gridlock that would lead to partisan deadlocks which, in turn, could lead to less oversight of election laws and even fewer early voting sites around the state.

“The potential for chaos is there if it’s passed,” said David McLennan, a political scientist at Raleigh’s Meredith College. “An eight-person board with equal division between the two major parties just looks like you’re going to have a lot of tie votes.”

Bob Phillips, president of Common Cause North Carolina, which opposes the amendment, said, “It doesn’t seem like this passes the good government smell test.”

Long-running battle

The amendment is just the latest fight over the state elections board.

In 2016, shortly before Democratic Gov. Roy Cooper took office, legislative Republicans merged the elections board and the ethics commission and replaced the five-member elections board with an eight-member board. At the same time they added a member to the three-member county election boards. The new local and state boards, whose majorities had for decades been chosen by the governor, were evenly split between the parties.

After Cooper sued, the legislature added a ninth, unaffiliated member to the state board.

The amendment not only would lock in place an eight-member board but give legislative leaders — not the governor — the power to appoint members. No longer would unaffiliated voters, who now outnumber Republicans and make up nearly a third of the electorate, be likely to serve.

In an op-ed piece last month, Michael Crowell, a long-time election lawyer, said, “North Carolina’s election system is broken.”

“The constitutional amendment on the ballot this fall will just make it worse,” he wrote.

Last month North Carolina’s five living former governors took the unprecedented step of publicly opposing the elections board amendment, as well as one dealing with judicial vacancies. So did six former chief justices of both parties. They all say it would erode the constitution’s separation of powers by increasing the power of the General Assembly at the expense of the governor, no matter which party the governor is from.

Other critics say it would create deadlocks that would make it harder to enforce campaign finance and other election laws. It also could lead to fewer early voting sites.

A ‘broken system’

According to the state’s official Judicial Voting Guide, “Removing the 9th board member may result in a 4-4 partisan deadlock vote. Under current law, a tie on this board could drastically restrict early voting opportunities.”

That’s because early voting sites are selected by county boards. If they deadlock 2-2 — and the state board fails to agree on appeal — the law says if a local board fails to agree on early voting sites, the elections office itself would be the only available site.

Last month, the state board heard appeals from 15 counties deadlocked over early voting. They included Wake, Durham and Orange counties.

Lewis looks at it differently. He said the vast majority of counties were able to work out early voting hours with four-member boards that worked together.

“It’s so much better when people can work together and reach consensus instead of having one side get its way,” he said. “I completely reject (the idea) that there’s something wrong with having an even number.”

Republican Sen. Jeff Tarte of Cornelius argues that an even number of members, equally divided between the major parties, forces members to cross the aisle for support.

“The argument is if you’re going to make a change you have to convince at least one member of the other party,” Tarte said. He said it would be similar to the Federal Election Commission, which has a six-member board split between parties.

But the Center for Public Integrity this year cited a report by the Congressional Research Service that “achieving at least four agreeing votes is sometimes difficult.”

Donald Bryson, president of the conservative Civitas Institute, said part of the reason for the amendment is that Republicans see the board’s lone unaffiliated member — Damon Circosta — as a Democrat in all but name.

“A lot of Republicans in the General Assembly felt they had been betrayed in the process by Gov. Cooper and the members he decided to appoint,” he said. “There definitely is a level of distrust between the General Assembly and the board of elections.”

Gerry Cohen, the former head of Legislative Bill Drafting, said the bill creating the amendment for the Bipartisan Board of Elections and Ethics Enforcement was passed basically along party lines.

“You can’t wish bi-partisanship on a system that’s pretty much broken,” he said.

Jim Morrill; 704-358-5059; @jimmorrill

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