North Carolina legislators were forced to scramble back to Raleigh this week for a hastily convened extra session to try to deal with some of the unintended consequences of recent changes to the state’s election laws.
Lawmakers are pushing two significant election bills in the extra session. As Lawyers Weekly went to press, Gov. Roy Cooper had vetoed both bills, and legislators were scheduled to convene Aug. 4, a Saturday morning, to try to override the vetoes. Unlike many veto override votes this year, there was still at least a modicum of uncertainty about whether the votes would be successful.
The first bill would change the way that the six constitutional amendments on this year’s ballot would be captioned. The saga over ballot captions dates back to 2012, when voters approved a constitutional amendment (since superseded by federal law) that banned same-sex marriages. Some Republican supporters were miffed that the amendment was prosaically known as “Amendment One” rather than having some version of “defense of marriage” in the official title.
In 2016 lawmakers passed a law that tasked the state’s Constitutional Amendments Publication Commission with writing explanations of proposed amendments, including “a short caption reflecting the contents … to be used on the ballot and the printed summary.” Then this summer they approved six proposed constitutional amendments that voters will consider this fall. Soon after approving the amendments, legislators left town, not expecting to return until after the election.
But after lawmakers recessed, Gerry Cohen, the former special counsel to the General Assembly who was on staff at the legislature for 37 years, noted in a tweet that because of the results of the 2016 election, Democrats hold a 2-1 majority on the commission. (Attorney General Josh Stein and Secretary of State Elaine Marshall are members.) As a consequence, Democrats would have the power to write the captions describing the amendments championed by Republicans.
Several news outlets, including Lawyers Weekly, wrote stories based on Cohen’s observation, and legislators apparently read them. Senate Majority Leader Phil Berger told reporters that reactions to Cohen’s tweets led to concerns that ultimately influenced the decision to call the extra session.
“If it was actually the reason [for the extra session] then I am at the same time irritated, flattered and amused,” Cohen told Lawyers Weekly.
During the session lawmakers passed House Bill 3, which strips the CAPC of its power to write captions. Instead, each amendment will be designated only with the phrase “Constitutional Amendment,” and voters will see only an explanation written by Republicans. HB3 also precludes assigning any numerical order to the proposed amendments.
Anglin’ for an advantage
Legislators are also trying to address another unintended consequence of one of their recent changes to election laws. Earlier this year they cancelled primaries for statewide judicial races, instead decreeing that every candidate who files will appear on this year’s ballot. In quickly moving the law through the General Assembly, lawmakers apparently accidentally removed a rule stating that candidates cannot appear on the ballot as members of a political party unless they had been registered with that party for at least 90 days.
Chris Anglin, a Raleigh attorney, filed to run as a Republican for the open seat on the Supreme Court. Republicans cried foul, noting that Anglin had changed his voter registration from Democrat to Republican shortly before the filing deadline, and alleging that he was trying to split the Republican vote. (Anglin denies being a stalking horse and says that he’s running as a “constitutional conservative.” He also noted that a conservative political organization had actively tried to find candidates to split the Democratic vote in precisely the same way.)
So during the extra session, legislators also passed Senate Bill 3, which provides that candidates for this year’s judicial elections can have a partisan affiliation listed with their name only if they had been a member of that political party for at least 90 days prior to filing. The bill does not mention Anglin by name, but he would be the only candidate affected by it. Anglin’s campaign manager (a Democrat) said that the campaign would consider exploring legal remedies if the bill becomes law.
But first, lawmakers will have to override Cooper’s veto. That would usually be a formality devoid of any drama. But a number of Republican lawmakers were absent when the bills were approved by the General Assembly, and as such they passed with fewer votes than would be needed to override a veto. (The absentees were disproportionately Republicans facing tough re-election campaigns.)
As Lawyers Weekly went to press, the override vote was expected to be close. Four Republican Senators voted against SB3 (the Anglin bill) and two voted against HB3 (the captions bill). Republicans have some cushion in their Senate supermajority, so they’d have the votes to override both vetoes if all the absentees from the first vote hold rank.
Follow David Donovan on Twitter @NCLWDonovan