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Amendment seeks to alter balance of power

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By Jon Hawley
Staff Writer

Monday, July 9, 2018

Should the General Assembly have more control over filling vacant judges' seats and who oversees the state's elections?

Voters will face both of those questions at the polls this fall.

Last month, Republican majorities passed Senate Bill 814 and House Bill 913, each of which proposes a new amendment to the North Carolina Constitution. Though separate proposals, both ask voters to consider the balance of power between the state legislature and the two other branches of government, the judiciary and the executive branch. Proponents of the amendments argue they would actually reduce partisanship; critics instead argue they're meant to put gavels in the hands of more Republican-friendly judges and weaken a Democratic governor.

Perhaps not surprisingly, local lawmakers are also split on party lines about the measures, with Sen. Bill Cook, R-Beaufort, and Rep. Bob Steinburg, R-Chowan, in favor, and Rep. Howard Hunter III, D-Hertford, opposed.

Under S814, a new “Nonpartisan Judicial Merit Commission” would collect and vet nominees to fill vacant seats on the state Supreme Court, Court of Appeals, and Superior Court; it would also call for forming local merit commissions to collect and vet nominees for district court. The amendment would not change which judges are subject to elections.

Merit commission members would be split between the chief justice of the Supreme Court, the governor and the General Assembly; no one branch could appoint a majority of members, it also stipulates.

Those commissions would collect nominations to fill vacancies – nominations that can be submitted by state residents – and then evaluated based on qualifications. The commission would forward those evaluations to the General Assembly, which would whittle the list down and present the governor with at least two names to choose from in making the appointment.

The amendment would also allow the chief justice to unilaterally appoint judges to vacancies when there are only a few months left on a term.

A legislative analysis of the bill also explains the amendment would allow appointees to hold office through two General Assembly elections, rather than serve until the next General Assembly election following their appointment.

Right now, the NC Constitution simply provides the governor shall appoint judges to fill vacancies until the next General Assembly election occurs. Notably, Senate President Pro Tem Phil Berger's office decried that as allowing “patronage,” pointing to former Democratic Gov. Bev Perdue's appointments of high-level employees in her administration to judicial seats as she was leaving office in late 2012.

As to H913, it would make further changes to the State Board of Elections and Ethics Enforcement, following Republican lawmakers losing a court battle over the SBE. Earlier this year, the NC Supreme Court ruled 4-3 against legislation that turned the five-member SBE into an eight-member panel evenly split between parties, arguing that unduly infringed on the governor's power to see laws were faithfully executed. Dissenting justices took issue with the decision guaranteeing the governor could appoint a majority of his or her party to the board.

H913 would again create an eight-member board, but would strip appointment power from the governor entirely. It would allow the majority and minority leaders of the Senate and House of Representatives to each recommend two members.

The amendment would go a step further, however, and state “the legislative powers of the state shall control the powers, duties, responsibilities, appointments and terms of office of any board of commission prescribed by general law.” That led Democratic lawmakers to decry the amendment as a massive “power grab” that would allow the General Assembly to assert control over virtually all gubernatorial appointments in the future, according to published reports.

In supporting both S814 and H913, Steinburg said both amendments would reduce partisanship and improve the quality of appointees. Steinburg argued Cooper has “shown his hand” and appointed very left-leaning judges. Asked about specific judges, Steinburg couldn't immediately name any, but criticized “leftist judges” who've “ignored the constitution.”

As to the SBE, Steinburg noted the SBE right now is designed to give the governor's party the edge. H913 would eliminate partisanship, he argued.

Taken together, S814 and H913 would shift power from the executive to legislative branches. Asked if the measures went against the governing principle of “separation of powers,” Steinburg said state government is different than the federal government. The NC Constitution provides for a relatively strong legislature and weak executive branch, he said.

In an email last week, Hunter urged voters to vote “no” on both amendments, citing concerns with not only the legislature taking more power from the governor, but delaying “by two years the voters' right to vote on the vacancy [judicial] appointments.”

Cook did not respond to a request for comment for this story last week.

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