Ever since the Republican-dominated General Assembly put six constitutional amendments on the November ballot in June, Senator Jeff Jackson, a Charlotte Democrat, has been trying to get anyone who will listen to pay attention to one of them. Not even what's in the amendment, but rather what's not there—four words that he contends could fundamentally reshape North Carolina politics, rendering the legislature all-powerful and the governor effectively impotent.
And residents who vote on the amendment will have absolutely no idea what it really does—or could do, he says.
The amendment, spelled out in SB 814, essentially transfers the governor's power to fill judicial vacancies to the legislature. If it passes, the legislature, governor, and chief justice of the state Supreme Court will create a nonpartisan commission that vets nominees, then forwards ones it deems qualified to the General Assembly, which will select "at least two" to present to the governor. If the governor refuses to appoint one of them within ten days, the legislature will get to pick its favorite.
How this will actually work is anyone's guess. As with the rest of the amendments, which were rushed through at breakneck speed, the General Assembly punted on so-called implementing legislation until after the election. So, for now, both the exact makeup of the commission and the method the General Assembly will use to select its preferred nominees are unclear.
But ignore for the time being the question of whether the amendment's stated purpose is a good idea, and look instead at what SB 814 doesn't say that previous constitutional amendments have said.
Specifically, it doesn't include the words "contain no other matter."
Understanding why those four words are important requires a brief history lesson: Until 1997, North Carolina was the last state in the union to deny its governor a veto. That changed through a compromise between the then-Republican House and Democratic Senate, which crafted a constitutional amendment that voters approved in 1996 granting a veto, albeit with some exceptions. The governor cannot veto bills that draw congressional or legislative districts, local bills that only affect a handful of counties, joint resolutions, amendments to the state constitution, and, most important for our purposes, bills that make appointments to public office, such as judges.
The problem, Jackson argues, is that with this constitutional amendment, there would be no restrictions on what else the legislature could pack into a bill filling a judicial vacancy—a bill the governor could not veto. In theory, lawmakers could wait for a judicial vacancy and then slap an entire budget (or something as controversial as HB 2, or literally anything else) into the bill that fills it, and the governor couldn't stop them.
That's not as crazy as it sounds.
Gerry Cohen, a former special counsel for the General Assembly who worked on the veto compromise in the mid-nineties, told me, "I agree one hundred percent with [Jackson's] conclusion. It could be an oversight, or it could be deliberate."
In a July 31 email to Jackson's office, Kara McCraw, a staff attorney with the General Assembly's nonpartisan Legislative Analysis Division, appears to concur: "Because there is no restriction on adding other matters to these judicial vacancy bills, a court could reasonably interpret that a judicial vacancy bill and legislation on other matters is not subject to the Governor's veto," she writes.
If you're inclined to believe this wasn't a mistake, here's some evidence to support your case: On Saturday, when the legislature convened to override two of Governor Cooper's vetoes, Jackson proposed a bill to close the loophole. Republicans declined.
"Their intent is to preserve the possibility," Jackson says.
Of course, Republicans see it differently. As one top GOP staffer told me, this is all premature. Until the General Assembly passes implementing legislation, it's not even clear lawmakers will send their picks to the governor in the form of a bill rather than by an election of the legislature; that means there might not be any bill to tack additional legislation onto.
Besides, the staffer says, the lawmakers who wrote the amendment have said it wasn't their intent to create a Trojan horse, and courts will take that into account. (Asked why the Republicans didn't back Jackson's bill, the staffer replies, "They think those words are superfluous and unnecessary. You're admitting you got it wrong before.")
"If you're a judge, you only look at the intent if the plain reading [of the amendment] is ambiguous," counters Jackson, an attorney. "The plain reading is very clear. Their intent isn't that relevant."
When viewed in context, Jackson adds, it's not difficult to question whether Republicans' declarations of goodwill are credible. "They're in the middle of a dedicated campaign to roll back the governor's power," he says. "This isn't out of the blue."
That's undeniably true. But so too is this observation, from the GOP staffer: "There's a great deal of distrust between the parties. There are tendencies to look at the other sides' motivations as sinisterly as possible."