Opinion

Opinion

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

Posted August 1, 2016 5:39 a.m. EDT

-- 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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