Noah Jabusch
The North Carolina General Assembly has recently convened a special session to rewrite two constitutional amendments struck down by the courts. These amendments have faced widespread pushback, including from five former NC governors of both parties.
In their newest iterations, the amendments would alter the composition of the State Board of Elections and Ethics Enforcement, as well as revamp the process for choosing judges to fill vacancies. Although both amendments have been scaled back from their original states, they both considerably expand the power of the legislature, threatening our state government’s system of checks and balances.
Currently, the State Board of Elections and Ethics Enforcement consists of nine members which the governor has the power to appoint. This board has been the subject of a protracted war between the Republican legislature and Democratic governor, of which this amendment is just the most recent battle. The current board was created from two distinct boards: the Board of Elections and the Ethics Commission after Governor Roy Cooper’s election shifted the partisan makeup of the elections board.
The board is involved in such decisions as the designation of Talley Student Union as a one-stop early voting site, which can greatly impact voters’ access to the polls. However, under the new system, the board would consist of only eight members, and so could remain deadlocked along party lines on close decisions like the 5-4 vote in favor of Talley.
The process by which board members are chosen would also shift radically. Rather than members being chosen by the governor, under the new system leadership from both parties in the legislature would come up with a list of possible members from which the governor would have to pick.
Not only does this blatantly partisan process undermine claims of the board’s bipartisanship or independence, it also removes any democratic authority from the process, since the lists are determined by the partisan leaders of each house, and never voted upon. Essentially, this amendment would transfer control of this critical executive branch board from the chief executive of the state to four members of the legislative branch who most people (myself included) can’t even name off-hand.
The amendment altering the judicial branch likewise poses serious dangers to North Carolina’s three coequal branches of government. Among the riskiest propositions of the original amendment was the removal of the governor’s veto power on judicial appointment bills. This presented the risk that a judicial appointment bill could be attached to another, unrelated bill that the governor would then be unable to veto. The new version explicitly prohibits such sneaky packaging of bills together, but otherwise remains the same.
Under the current system, it’s true that the governor has essentially complete authority over the appointment of judges to vacancies, but the new amendment doesn’t really address this, it merely transfers the complete authority to the legislature, rather than attempting to actually establish a balance of powers.
The amendment establishes a “Nonpartisan Judicial Merit Commission” to determine whether individuals are qualified to serve as judges, but this authority is a very soft power, as the legislature ultimately determines which of the qualified candidates will be sent to the governor’s desk.
In essence, these two amendments would dramatically increase the power of the legislature at the expense of the governor and to the detriment of our government’s systems of checks and balances. Although they purport to reduce partisanship in the appointment of judges and elections board members — a truly worthy goal — these changes do nothing of the sort, and rather ensure the legislature has a vice grip on the levers of our state’s democracy.