Elections-board debate focuses on separation of powers
By Dan Way
Carolina Journal News Service
Monday, October 22, 2018
CLAYTON — Panelists debating a proposed constitutional amendment creating a new state elections/ethics board offered starkly different views about the threats to separation of powers.
Critics see the proposed amendment — establishing a Bipartisan State Board of Elections and Ethics Enforcement — as a continuing effort by Republicans to shift executive branch authority to the legislature. Advocates counter it will blunt a state Supreme Court decision which unexpectedly gave power to the governor.
Changing how state elections board members are appointed, and cutting membership from nine to eight, is one of six constitutional amendments voters will decide in the Nov. 6 general election.
The amendment was the focus of an Oct. 9 debate sponsored by The N.C. Institute of Political Leadership and Spectrum News, one in a series of Hometown Debates on four of the six constitutional amendments.
The panelists for the Oct. 9 debate were state Senate Minority Leader Dan Blue, D-Wake; state Rep. David Lewis, R-Harnett, chairman of the House Elections and Ethics Law Committee; N.C. Republican Party Executive Director Dallas Woodhouse; and Allison Riggs, staff attorney with the Southern Coalition for Social Justice.
Blue said that the elections-board amendment “fails to take into account the demographics of the state, because “a third of the electorate in this state is unaffiliated.” He said at least one slot on the board should be reserved for a nonpartisan member. “In a few years it’s going to be declared unconstitutional anyhow,” Blue said, because it is not inclusive of the large and growing swath of unaffiliated voters.
Blue and Riggs said the old system with a five-member board was fine. Under it, the governor appointed three members from his political party, with the other two coming the other major party. Members served admirably, and administered the laws honestly, they said.
Lewis disputed Riggs’ contention that she liked the old system, noting she sued repeatedly over its decisions, as did other Democratic-aligned organizations.
Minority and majority leaders in both legislative chambers would appoint members to the new board. Lewis said nothing in the constitutional amendment prevents appointment of an unaffiliated member, or a representative of the Green, Constitution, or Libertarian parties. He said Blue himself could do that to assuage Democrats’ concerns.
Woodhouse said appointment power isn’t the only controversy the amendment would tackle. The state elections board stood as a quasi-judicial, independent agency for 125 years. The state Supreme Court changed that in the much-litigated Cooper v. Berger decision, which Woodhouse called “a horrific decision that could have long-reaching impacts.”
“No other governor has ever asserted they have day-to-day control over the Board of Elections,” or the power to tell it what its position must be on legal matters, Woodhouse said. “The governor did so in court.”
Blue said no other governor has had to fight to maintain his constitutional powers against a legislature intent on chipping them away.
He accused Woodhouse of being angry that the courts have stymied Republican-led efforts to create an eight-member board removing gubernatorial appointment powers, “and that’s why this thing is on the ballot now, to try to justify stripping the power from the governor.”
“This is really only building voter dissatisfaction, discouragement, dissuasion from engaging in the political process when there’s this kind of rank political manipulation,” Riggs said.
Woodhouse and Lewis said they, unlike Democrats, believe voters are wise enough to educate themselves on the issues, and cast informed votes. People should have the right to self-governance, and amendment opponents want to take that away.
Riggs said the state constitution “is supposed to be a sacred document, not amended at the frustrated whims of the General Assembly that has had numerous laws invalidated by the North Carolina Supreme Court.”
Lewis pushed back, noting the court decided the case by a 5-4 vote along partisan lines favoring Democrats.
Woodhouse said courts are not infallible. If voters disagree with a court decision, “they get to consider amendments to the constitution. That is not a runaround. It is a beautiful aspect of our constitutional governance.”
Blue and Riggs said legislators should not be empowered to appoint elections board members who would decide campaign finance and ethics violations involving lawmakers. Appointive powers and oversight of investigations would be best left to the governor, who has a statewide mandate and responsibility to protect the rights of all North Carolinians, they said.
Lewis countered by asking where the greater likelihood of campaign finance violations would surface. The average House campaign raises $60,000 in an election cycle, but a gubernatorial candidate can raise $20 million.
Woodhouse said giving the executive branch full sway over the elections board deprives the body of its independence, could thwart investigation of a governor’s wrongdoing, and pose an undue influence on deciding election challenges in favor of the governor’s party.
Blue said creating an eight-member elections board is an intentional device intended to guarantee tied decisions. Without a tie-breaker, gridlock would result on serious matters.
“It’s 100 percent certain in my mind that when this dispute does rear its ugly head on partisan lines — and I think it will — that voters of color likely will be the ones hurt by that dispute, and early voting access will be restricted,” Riggs said.
Lewis argued that under Republican-passed legislation, North Carolina now has more early voting hours than ever.
Further, he said, even-numbered boards are not unusual. He said juries, the House and Senate, the previous state ethics commission, the Legislative Ethics Commission, and county elections boards all were even-numbered.
Carolina Journal News Service is provided by The John Locke Foundation in Raleigh.
Visit this story on reflector.com for coverage of debates on the the voter ID amendment, the judicial appointments amendment and the tax cap amendment.