Ethics and Elections Amendment Letter to Editor 9-9-18

Ethics and Elections Amendment

Diane Lemieux

Arapahoe

To say that we are struggling with elections today would be a gross understatement.  From foreign interference to hacking and voting laws, elections have become a quagmire.  We would like to think that elections are wrapped in ethics and honesty, but we are seeing daily evidence to the contrary.

In what has been described as a power grab, the legislature leadership has written a constitutional amendment regarding ethics and elections that strips power from the Governor’s office and transfers it to the Legislature.  This clearly violates the separation of powers called for in our constitution.

The Ethics and Elections Amendment (or the Undermine Separation of Powers Amendment) will read like this:

[ ] FOR [ ] AGAINST

Constitutional amendment to establish a bipartisan Board of Ethics and Elections to administer ethics and election laws, to clarify the appointment authority of the Legislative and the Judicial Branches, and to prohibit legislators from serving on boards and commissions exercising executive or judicial authority.

On the surface, this language sounds entirely reasonable.  And that is the problem. It sounds reasonable without clearly state the intent of the amendment. In order to fully understand this amendment, one must look for what is missing: what is not included (and its effects) and what the voter will not see in the voting booth.

Jackson, NC Senator, says, “In short, historically the governor has had appointment authority over these boards. The General Assembly would prefer that it have appointment authority.” The new board would have 4 Republicans and 4 Democrats. Currently, the Ethics and Elections Board has 9 members, 4 Republicans, 4 Democrats, and 1 Independent. Independents compromise the second largest voting block in NC, and will be left with no say at all if this amendment passes.  If tie votes are broken by the legislature, that could result in unfair changes or challenges to voting laws.

Martin Warf, an attorney for legislative leaders, asked, “Who’s to say what’s misleading? Where is it that there is a standard to apply to the language on the ballot as to whether it accurately represents what’s going on or not?” Warf stands behind his actions, claiming that the constitution gives the General Assembly the authority to put proposed amendments to a public vote. Yes, it does, but it sounds like he is trying to excuse devious behavior. State law requires the state elections board “present all questions in a fair and nondiscriminatory manner.” Chair of the elections board, Solicitor General Matt Sawchak, said the ballot questions failed to meet that standard and that they “will be made a perpetrator of a constitutional violation.”

The originally tasked commission must still write detailed explanations for each amendment that won’t be shown on the ballot but will be available at each county board of elections for anyone who asks, but who is doing that voter education?

It actually sounds like it will “clarify the appointment authority of the Legislative and the Judicial Branches”, when in fact, it gives the legislature all of the power to appoint regulators, members to nearly 400 boards and other officials.  Clarification is not needed at all.  The appointment authority is clearly spelled out in the constitution already. Historically, the governor has held the authority to make these appointments, but the legislature is hoping to change that.

Another part of the amendment that voters will not see deals with separation of powers, with the proposed language underlined.

“Sec. 6.  Separation of powers.

(1) The legislative, executive, and supreme judicial powers of the State government shall be forever separate and distinct from each other.

(2) The legislative powers of the State government shall control the powers, duties,

 responsibilities, appointments, and terms of office of any board or commission prescribed by general law.

Isn’t it ironic that it first states that the three branches of government “shall be forever separate and distinct”, and then follows that with language that takes away power from the executive branch and transfers it to the legislature?

Someone must have skipped over the part of the constitution that Constitution requires the Governor to faithfully execute the laws. Without the ability to appoint people to boards, commissions and other offices, that would be hard to do.  Giving that power to the legislature enables them to make the laws and then appoint people to carry them out.  This is clearly a violation of separation of powers. In 2014, the legislature attempted a similar power grab and the NC Supreme Court struck down the law, declaring that the law violated the separation of powers principle in our Constitution. If they can’t legislate it, they are trying to put it in the constitution.

Perhaps that’s why this amendment is the target of several lawsuits, currently working their way through the court.  Governor Cooper, NAACP, and Clean Air Carolina have all filed suits to remove this amendment from the ballot. A three judge panel has delayed the printing of the ballots while they deliberate later this week. Bill D’Elia, an Eden Republican and spokesman for Senate leader Phil Berger, called the lawsuits “absurd”.

One high-ranking Republican, Rep. Chuck McGrady, voted against the amendment over concern for this section, stating, “I think we’ve gone too far. At some point in time, we may not be in the majority.” NC Attorney General, Josh Stein, referred to this as “the most radical restructuring of our government in more than 100 years, since the Civil War. It would essentially give the Legislature the power to run the executive branch.”

The NC Democratic Party says, “This amendment would fundamentally alter the balance of power in state government, giving the legislature exclusive control over how you can vote, the cost of your energy bill, and the quality of your drinking water. This dangerous measure would essentially rewrite the constitution to exclude all North Carolinians but a few politicians from making decisions about what is in the best interest of the state.”

Pros

  • The constitution gives the General Assembly the authority to put proposed amendments to a public vote.
  • Senate President Pro Tem Phil Berger‘s new spokesman, Pat Ryan reflects on former governors: “Given the ethics scandals coming from some of these administrations, it’s not shocking they’re rallying against a bipartisan ethics board. We trust the voters to decide how best to protect the integrity of the political process.”
  • WRAL reports, “Republican leadership in the General Assembly has repeatedly noted that North Carolina has always vested most of the government’s power in the state legislature, and they describe the boards and commissions amendment as a clarifying one.”

Cons

  • Ballot language voters will see is misleading.
  • State board of elections eliminates Independent member
  • Transfers executive powers to legislature
  • Violates separation of powers
  • Charlotte Observer reports that all five of North Carolina’s living former governors
  • Governors Pat McCrory, Bev Perdue, Mike Easley Jim Martin and Jim Hunt rebuked the legislature for this power grab, saying that it would, “shred gubernatorial power and government checks and balances.”

Knowing the facts is essential to democracy.  Arm yourself with them and vote.

 

 

 

 

 

 

 

 

 

 

 

 

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