Ballot amendments draw scrutiny

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Ron Wesson

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By Jon Hawley
Staff Writer

Sunday, August 19, 2018

Local legislative candidates are generally divided on the proposed constitutional amendments that may be heading to voters this fall – but both candidates in House District 1 object to an amendment giving the governor's appointment power to the General Assembly.

This summer, Republican lawmakers voted to put six amendments on the November ballot for voters. Four of them are facing court challenges. Among the challenged amendments is one proposed by House Bill 913, which would “clarify the appointment authority of the legislative and judicial branches.” In this context, “clarify” means transferring the governor's power to appoint to boards and commissions to the General Assembly.

Ed Goodwin, a former ferry director and regional director under former Gov. Pat McCrory, said in an interview this week he believed “appointment powers should be under the governor.”

Goodwin acknowledged arguments that governors, when elected, often appoint people of their own political party.

“Sometimes that's good, and sometimes that's not so good,” Goodwin said, alluding to governors ousting good, experienced employees only because they're of the opposite party.

However, he disagreed that putting appointment powers in lawmakers' hands would end patronage.

“These issues are going to exist in this system or if we change it” by passing the amendment, he argued.

Goodwin said he supported the other constitutional amendments, including the one creating a “nonpartisan judicial merit commission” to review and recommend nominees to judicial vacancies for the governor to appoint. Proponents argue that approach will fill judges' seats in a more merit-based system, but critics argue that it, like HB 913, violates separation of powers.

Goodwin said he believed it was reasonable for the General Assembly to have some say in vacancies.

Goodwin also said he believed power was fairly well balanced between the state's three branches of government, but added he felt the branches sometimes didn't use all the checks and balances available to them.

Bertie County Commissioner Ron Wesson is the Democratic candidate for House District 1. He opposed all of the amendments, he said in a phone call.

Wesson said he echoed comments of former Gov. Jim Martin, a Republican, who called the amendments a “scheme.” Martin has joined four other former governors, including McCrory, in opposing the amendments reducing the powers of the governor.

Wesson said he considered the N.C. Constitution “one of the best-written constitutions” among states, and argued the fathers of that constitution knew best in giving the governor appointment powers. He also warned that allowing lawmakers to appoint employees under the executive branch could create “divided loyalties” within agencies.

Similar to Goodwin, Wesson also said the proposed amendment would simply “change patronage,” not end it.

As to the other amendments, Wesson said he was concerned the amendments' passage would create unintended consequences, including making it harder to legislate on certain issues in the future. That's because state laws are easier to change than the constitution.

Wesson also said he was concerned about the balance of power between the branches of government, but also said it was vital for the General Assembly to be more bipartisan. He accused the Republican super-majorities of “suppressing” the Democratic minorities and not seeking consensus.

Also reached for comment this week was Rep. Howard Hunter III, D-Hertford. Hunter is running in House District 5 against Phillip Smith, of Gates County. Smith could not be reached for comment this week.

Asked about the constitutional amendments transferring power from the governor, Hunter pointed to the bipartisan governors’ opposition.

“That should answer every question right there,” he said.

Hunter argued lawmakers were trying to “take over” the governor's office. He likened it to county commissioners controlling all hiring and firing decisions for county employees.

“It's like micromanaging the county manager,” he said.

Hunter also suggested Republican lawmakers were trying to change rules to further their interests despite a Democratic governor and court rulings against them.

Candidates for House District 6, Republican Bobby Hanig and Democrat Tess Judge, couldn't be reached for comment this week.

In Senate District 1, Rep. Bob Steinburg, R-Chowan, declined comment.

His opponent, Washington County Commissioner and Democrat Cole Phelps, joined “all of the former living N.C. governors of both parties in opposing the proposed amendments,” he wrote in an email. He also said the amendments were “hastily drawn, impermissibly vague, and seem to be intended” to satisfy special interest groups.

Speaking specifically about the appointment of judges, Phelps stated that the governor consults with local attorneys to fill vacancies. The proposed amendment would create more “layers of bureaucracy” and be complicated by legislators unfamiliar with districts and having their own “agendas,” he argued.

In addition to former governors, there's another prominent critic of several of the constitutional amendments: Gerry Cohen, former director of bill drafting and special counsel for the General Assembly.

Cohen, who retired in 2014, blasted the ballot language for the amendments affecting gubernatorial powers as “deceptive and misleading” in a phone call this week. Taking the governor's appointment power is not a mere clarification, as lawmakers' ballot description states, he argued.

As director of bill drafting, Cohen also explained he reviewed and authored more than a dozen constitutional amendments. Those amendments can take years of study to consider all their legal consequences, and he criticized this year's amendments, passed over a few days, as “shoddy products.”

Cohen, notably, has filed an affidavit in support of two left-leaning groups' lawsuit against four of the six amendments; those groups are the National Association for the Advancement of Colored People and Clean Air Carolina. Cooper's administration has separately challenged the two just affecting his powers.

In one eye-raising claim, Cohen wrote in that affidavit that the amendment affecting judicial vacancies would create a major exception to the governor's veto power, an exception not stated on the ballot. He explained the N.C. Constitution exempts bills on certain matters from the governor’s veto, but requires such bills contain “no other matters.” Without that clause, lawmakers could, in theory, add any and all legislation they wanted to a veto-exempt bill.

Cohen wrote the lawmakers' amendment would exempt legislation recommending judicial nominees, but without requiring those bills contain no other matters.

During his interview, Cohen also blasted the ballot description for the amendment reducing the maximum allowed income tax rate. The amendment's description states it is an amendment to “reduce the income tax rate in North Carolina to a maximum allowable rate of 7 percent.”

The current personal income tax rate is already 5.75 percent; Cohen said the description suggests voters would get a tax cut if they approved the amendment.

“The ballot question starts, frankly, with a lie,” Cohen said.