Editorial: Legal Scorecard: Constitution-6 and N.C. Legislature-0

Posted August 1, 2016

-- The General Assembly has lost six high-profile court challenges to legislation it has passed.
-- Some bills were passed in haste with little public discussion or legislative debate.
-- Winning a majority, even a veto-proof one, does not mean legislative leaders can do anything they want.
-- Is political payback worth costly losing legal battles?

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A CBC Editorial: Monday, Aug. 1, 2016; Editorial# 8036
​The following is the opinion of Capitol Broadcasting Company

If the General Assembly were a major league franchise, the front office would be looking to make some major changes in the on-field leadership. A D-league performance simply does not cut it. In six high-profile court cases testing laws passed by the N.C. General Assembly, the current legislative leadership stands 0 and 6.

These are costly legal battles with legislative leaders shelling out hundreds of thousands, if not millions of taxpayer dollars to handpicked lawyers to help plead their losing cases. The big test the work of a legislature faces: Does it withstand the intense scrutiny of a legal challenge. With other high-profile cases now pending in the courts, including HB2, it could get even worse.

State or federal courts have rejected the legislature on:

  • Separation of powers – The state Supreme Court ruled the legislature over-reached when it sought to control a panel set up to deal with the state’s coal ash crisis.
  • Congressional redistricting – Unconstitutional gerrymandering forced federal courts to demand a special primary election this year for members of the U.S. House of Representatives.
  • Local school board and county commissioner districts – Unprompted, the legislature redrew Wake County Commission and School Board districts, which federal courts rejected.
  • Teacher association payroll deduction – State courts found the legislature’s effort to prevent the N.C. Association of Educators from using payroll deduction to collect dues was illegal.
  • Judicial “retention” elections – The state Supreme Court rejected an effort to change direct election of state Supreme Court justices to so-called retention elections, a thinly-veiled attempt to protect Republican justices.
  • Voter ID and other ballot-access changes – In a scathing and unsparing opinion the 4th Circuit Court of Appeals just last week labeled unconstitutional and racist, a series of changes to the state’s elections laws that curtailed voting rights of African Americans.

Last week’s 4th Circuit opinion was written by Judge Diana Gribbon Motz (appointed by President Bill Clinton), and joined in by judges James A. Wynn (appointed by President Barack Obama) and Henry F. Floyd (appointed a District Judge by President George W. Bush and to the appeals court by President Obama).

The 83-page dissection of the North Carolina’s 2013 voter ID law summed up many of the problems and issues that contributed to the failure of the other high-profile bills that lacked constitutional standing.

Prominent among them:

LAW MAKING BY AMBUSH: Legislation mysteriously pops up or is slipped into unrelated legislation. This short-circuits the legislative process, allows for little discussion in committees, even less public scrutiny and in an instant becomes law. “Neither this legislature – nor, as far as we can tell, any other legislature in the country – has ever done so much, so fast, to restrict access to the franchise,” the 4th Circuit judges wrote.  Another prime example, now being contested in the courts is HB2.  In a few hours the bill was conceived, drafted, passed and signed into law.  The closer the law is examined, the broader and more serious are its implications and discrimination.

WE WON, WE CAN DO WHAT WE WANT: A consistent undertone of many bills is GOP payback for decades of resentment of the domination by Democrats. “Winning an election does not empower anyone in any party to engage in purposeful racial discrimination,” the judges said. Whether based on race, as in the voter ID bill, or based on perceived political behavior, such as the NCEA, which tends to largely support Democrats, bullying by legislation may get a bill passed, but doesn’t make it constitutional.

While Gov. McCrory and GOP legislative leaders seek to portray their voter ID requirement as common sense, the truth is, as the Appeals Court decision pointed out, it is imposed selectively and largely targets the behavior of black voters.

While the premise of the legislation is to protect the system from fraud, ironically the only evidence the court found was in absentee voting – an area the legislation specifically exempted from the voter-ID regiment imposed on in-person voting.

The legislature imposed specific kinds of ID to be presented for in-person voting. The law did not require any of those same forms of ID for mail-in absentee voting. Mail-in absentee voting is used overwhelmingly by white voters.  The legislature couldn’t produce a single example of in-person voter-ID fraud.  But, the “General Assembly DID have evidence of alleged cases of mail-in absentee voter fraud. … The General Assembly then EXEMPTED absentee voting from the photo ID requirement.”  If the legislature were truly concerned about voter fraud, surely it would have addressed a form where evidence of fraud already exists.

With Gov. McCrory, himself a victim of these legislative excesses in the separation of powers case, it might be expected he would, at a minimum, be reserved in response to other challenges of legislative over-reaching, rather than issuing predictable partisan broadsides. Given his experience, the governor should recognize even more, the wasted time and money in these defenseless court battles. While the disputes rage in courts, the problems or issues to be addressed, cleaning up coal ash for example, lack the attention they require.

That’s why McCrory’s reflexively partisan reaction Friday is disappointing and wrong-headed.

We hope, and urge these drunk-with-power leaders to sober up and come to their senses. Their cases are hopeless. Settle these futile court battles.

It will save taxpayers huge sums of money and give our government leaders the opportunity to focus on the real needs of North Carolina and its citizens.

In this league, it is the voters who occupy the front office. On Nov. 8 voters get to make decisions on next year’s leadership. Register and vote.


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  • Glenda Hightower Aug 4, 2016
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    View quoted thread

    Matt, I don't find define truth as propaganda. That is where we differ. What possible differing "opinion" could refute the truth. Maybe they could give their opinion for the whys of these 6 legislative failures, but failures they still are, and that's a true fact. What's that saying? Everyone is entitled to their opinion, but facts are facts?

  • Matt Nickeson Aug 2, 2016
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    View quoted thread

    Did you read any of what I posted or did you just react to what you thought I had written?

  • Catherine Edwards Aug 2, 2016
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    So Matt, since this comment stream is now about your opinion. You state "There are no other opinion pieces. There is no alternate points of view. There is only one point of view and the opinion page is being used to push a specific agenda."
    So what opposite, or other opinion, could be offered to this specific piece?

    This legistlature and governor has been costly to taxpayers and need to be voted out. If they were costly by paying teachers better, improving infrastructure, improving health, making NC cleaner I wouldn't be so upset.
    Costing taxpayers so they can discriminate, pollute, deny voting, back door elect candidates makes me upset. As it should any good libertarian or taxpayer.

  • Matt Nickeson Aug 2, 2016
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    View quoted thread

    Ok, I feel like I'm really not breaking through on this topic. I'm not arguing whether the piece contains some factual content. I'm not arguing that they should not publish the content. Look at the opinion page. Who's opinion do you see? It's one person. That person used to work for two Democrat governors. He now works for the parent company of WRAL. There are no other opinion pieces. There is no alternate points of view. There is only one point of view and the opinion page is being used to push a specific agenda. That is called propaganda. And yes, I have a problem with propaganda.

  • Glenda Hightower Aug 1, 2016
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    Matt, I understand most of what you are saying. It is a partisan piece, but it was all true. Our legislature have lost all 6 and have cost us a lot of money in the process. I guarantee you that there are people who read this "opinion" piece and found out these "true" facts for the first time. If CBC had lied about the 6 to 0 comment, I would loudly bash them, and I'm a democrat. If and opinion piece writes true details - well, it's true and most informative.

  • Matt Nickeson Aug 1, 2016
    user avatar

    View quoted thread

    Do you have a point other than to attack me for what you believe my age to be? Why is it any more right now than it was then?

    What seems lost on many of the respondents to my comments is that I am not against WRAL reporting these things. I am not against a news article that lays out the facts. I am not against an opinion page that presents a variety of opinions to expand the public discourse on a matter. I am against an organization using their bully pulpit to further their personal beliefs further eroding the fourth estate. I am against news channels creating the news or pushing specific agendas rather than honestly reporting so people can form their own opinions.

    I read a wide range of news sources and am a Libertarian. I am not writing because I support the Republicans. I may support some of their ideas but not all. I know it is hard to believe that someone can think outside of the party talking points but it actually is possible.

  • Ken Butler Aug 1, 2016
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    I find it somewhat amusing that Matt N is railing against what he perceives as a liberal bias by WRAL. He may be too young to remember that back in the 1960s, Jesse Helms used his position as VP of Capitol Broadcasting to offer nightly Viewpoint "editorials" on WRAL TV where he would routinely excoriate civil rights activists, academics, antiwar protestors, and anyone else whose views he opposed. This was in the day when there were far fewer ways to access new. There were only 3 national broadcast TV networks, no internet, and no cable television.

  • Matt Nickeson Aug 1, 2016
    user avatar

    View quoted thread

    Did you actually read any of what I wrote? Sometimes it is actually worthwhile to read and understand the material before you spout off about what you assume. Although I do like that you keep it real with the Rev. Wright shout-out and using the z instead of an s. Very high in street cred. You're funny.

  • Paul Stroud Aug 1, 2016
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    @Matt, it ain't garbage. it's real. The legislature knew when they passed most of this that it was unconstitutional. And decided to do so anyhow, and spend our tax dollars defending it. THEN, when the roosters come home to roost, you want to point your finger at WRAL. Howz about taking a close look in the mirror!

  • Melvin Denis Aug 1, 2016
    user avatar

    It it is a FACT that our state laws are being overturned as unconstitutional perhaps we need some competent lawyers in the legislature to better craft laws that can pass muster. Incompetence should no longer be tolerated in state government.