NC General Assembly Republicans Seize the Opportunity to Make Good on the Promises Made in the State Budget

NC GENERAL ASSEMBLY - House Chamber

by Diane Rufino, September 16, 2019

In June, the Republican-dominated General Assembly passed a state budget that included pay increases for our public school teachers and for non-certified school personnel, pay increases for teachers in the state community college system, pay increases in general for state employees, pay increases for state highway patrol, ample funding for our transportation system and for disaster relief, and changes to our state tax laws. Republicans were proud of the promises made to the people of our state and proud that they were, for the most part, able to do the right thing without having to raise the budget to any significant degree or to increase state funding. Refer to sections (a) thru (f) below, noting the horrendous provision included to cater to Democrats in section (b).

Despite all the good in that budget, Governor Cooper went ahead and did the unthinkable – he vetoed it. His despicable act threatened the promises made in that state budget. Luckily in North Carolina, a provision was passed in 2016 to provide that if a budget is not approved, the previous budget remains in effect, keeping spending at current levels. Without the new budget, teachers would not see their new increase in pay, state highway patrol officers would not see their pay increase, state employees would not see their pay increase, etc.

And so, the question that remained this summer was whether Republicans would be able to find a way to override the Governor’s veto and to make good on those promises. Would they be able to wrangle enough votes from Democratic lawmakers to reach the magic number of 3/5 of a majority (even though it seemed they were far from realizing that option)? Would they be able to work with Democrats to come up with a compromise that Governor Cooper would approve of (including Medicaid expansion, of course). Even though Republicans promised they would never give in on such a fundamentally unconservative issue. Would a different opportunity present itself (such as a legislative session where limited numbers of Democrats fail to show up)?

On June 27, the NC Senate passed House Bill 699 (HB-699), also referred to as the “2019 Appropriations Act” or more commonly, the “Budget Bill,” by a vote of 33-15. The bill then went to the state house where it passed by a vote of 64-49. The Budget Bill was, by almost all accounts, an excellent (but not perfect) budget proposal did not increase the state debt and which included pay increases and improved benefits to certain state workers.

The 2019-2021 spending plan (HB-699) included the following:

(a) A slight increase from the previous state budget. The 2019-20 budget of $23.9 billion represents an increase of $689 million from the 2018-19 budget, and the 2020-21 budget of $24.9 billion represents a 4% increase from the FY 2018-19 budget.

(b) Instructed that $14 billion be used in the first year and $14.3 billion in the second year to fund education related programs throughout the state. Laid out in the education section of the budget, teachers, assistant principals, and school principals would see salary increases at an average rate of 4.6%, 6.3%, and 10% respectively. An additional $30 million in FY 2019-20 and $53.2 million the following year would be used to fund five School Safety Grants: one for school resource officers, services for students in crisis, school safety training, safety equipment in schools, and additional school mental health support personnel. The budget would eliminate the current classroom and teacher supply fund and replace it with a $15 million appropriation annually to establish the Teacher Directed Classroom Supplies Allotment that would allow teachers to use an app to purchase textbooks and other supplies specifically for their classrooms. Sadly and very disappointingly, a provision (a Democratic initiative) was included that would lower the grading scale to be used in the state’s public school system to measure school performance, changing the weighting of the school achievement component to 51% and the school growth component to 49%. It substitutes the 10-point grading scale (with a failing grade of 64) with a 15-point grading scale (with a failing grade of 49). Starting this school year, it will take very little effort for a student to meet the state’s new “competency” criteria.

(c) Includes pay increases for state highway patrol and for state employees.

(d) Medicaid Transformation projects will receive a nonrecurring appropriation of $232.9 million in FY 2019-20 and $198.4 million in 2020-21 in order to support the efforts of transitioning the state to a managed care system. Additionally, the Health and Human Services portion of the budget allocates $150.2 million and $11.4 million in respective years of the biennium to pay for the runout of claims for individuals transitioning to managed care.

(e) The Department of Transportation will receive $98 million in additional funds for the contact resurfacing of roads and other general maintenance projects. The budget also allocates approximately $58 million in funding for Rail Infrastructure efforts and includes provisions to remove restrictions specific to light rail projects. $15 million recurring dollars from the State Capital and Infrastructure Fund will be used for the GREAT grant program to help bring broadband providers to rural areas of the state.

(f) The budget contains several provisions to change North Carolina’s tax laws. Multistate corporations would be required to calculate their sales based on the percentage of their income that is due to products and services provided throughout the state. Tax and regulatory relief would also be granted to out-of-state businesses conducting disaster related work in North Carolina after a natural disaster, such as Hurricane Florence.

On June 28, Governor Roy Cooper vetoed the budget. He vetoed the budget for one reason and one reason only – to hold salary increases hostage in order to coerce the General Assembly into passing an acceptable Medicaid Expansion bill. He was intent on having Medicaid available for all those who needed it in North Carolina, including illegal aliens. It was a sickening exercise of political power, of partisan politics, of executive bullying, and of political extortion.

If the budget had passed, the members of the General Assembly would have had the opportunity to go home for the summer. Instead, they were forced, out of an obligation to their constituents and an obligation to their oath of office, to remain in Raleigh to figure out a way to make good on their promises. They knew, as it stood, they did not have the votes necessary to override the Governor’s veto. They would certainly need some Democrats to cross party lines to join them, and that would likely not happen (given the actions of the Democrats with the Born Alive Survivors of Abortion Protection Act). Many may recall how Republicans tried a piecemeal approach to the budget – passing individual conference reports and bills to meet the pay increases promised to individual state employees. In fact, they passed 3 conference reports, one to provide the proposed pay increase to our state highway patrol, another to provide the proposed pay increase to state employees, and the third to provide the proposed pay increases to state Bureau of Investigation and Alcohol Enforcement officers. An independent bill was passed to provide the proposed pay increases to public school non-certified employees and college professors and employees, and to provide bonuses for retirees.

No one can accuse a Republican lawmaker of not being tireless and dedicated to their position.

Note, though that none of the piecemeal reports or bills provided for a pay increase for public school teachers. I believe this was intentional. Although Republicans (not Democrats) had already given teachers six consecutive salary increases, teachers (organized by their so-called “union”) have continued to protest at the General Assembly demanding higher and higher pay. They never thank Republicans (indeed, they don’t even know what Republicans have done on their behalf) yet when Democrats were in power and never ever increased their pay, the same teachers never made a stink. I believe the Republicans wanted teachers to know that it was Governor Cooper alone who prevented them from enjoying a pay increase and didn’t want to help him escape the consequences of his despicable veto. I believe they wanted Governor Cooper to feel the heat from teachers – hoping, of course, that teachers would finally travel to Raleigh to condemn a Democrat and to protest at the Governor’s mansion.

That didn’t happen… No surprise there.

On September 11. Republicans in the General Assembly finally were able to make good on the promises they made in the 2019-21 appropriations bill. They were able to seize on an opportunity in the state house to take a vote to override Cooper’s veto. And exactly what was that “opportunity”? As Republicans noticed when they walked into the house chamber that morning, there were hardly any Democrats present, even though they had an obligation to be present for a scheduled vote. In fact, there were only 15 Democrats present at the time the session commenced.

The override vote passed, along strict party lines by a vote of 55-15. The veto override vote now sits with the Senate.

Immediately after the override vote was taken, house Democrats began to cry FOUL Rep. Deb Butler, one of the 15 Democratic house members to show up for the vote, screamed: “Speaker Moore, I will not yield. I will not yield….. I will not yield.”

But was their any duplicity or scheming involved in the override vote?   Absolutely not.  In fact, Republicans refer to their decision to take the override vote as an “opportunity,” while Democrats refer to it as “villainous” and “unfair.”

Here is what happened:

On September 10, Rep. David Lewis (R-Harnett county) was standing in for House Speaker Tim Moore, who was not in Raleigh. On the house floor that day, he read two bills into the record which would be considered by the body the following day – at 8:30 am. In other words, two bills were read into the calendar. Those bills were Senate Bill 118 (S.118), a prison safety bill, and Senate Bill 429 (S.429), a disaster recovery bill. At every legislative session, any bill that is remaining on the calendar (that is, still waiting for some action to be taken) can be taken up, depending on the discretion of the speaker or acting speaker. In fact, notice of the veto override was properly noticed and published on the House calendar, as it has been for nearly 2 months. Every legislator knew this. In fact, Speaker Moore had reminded members of the House repeatedly that whenever he saw that we had the votes to effect the override, he would call for the vote.

To emphasize, after Chairman Lewis announced his intention to take up the two bills, he announced a start time of 8:30 am for Wednesday for the house session. Lewis, House Speaker Tim Moore (who would be returning to the legislature the following day), present members of the House, and staff, were all planning to hold recorded votes on bills on the published calendar for Wednesday’s morning session.

The Minority Leader, Rep. Darren Jackson, asked if the vote on those two bills could be delayed until Wednesday afternoon to give Democrats a chance to consider them in caucus. (As you’ll note later, this was most likely a ruse to cover up what Democrats already had planned for the morning…..)   Acting Speaker Lewis agreed to allow the delay and said there would be no votes on those two bills until Wednesday afternoon.

This is a very important detail to grasp.

Rep. Lewis told Rep. Jackson he would delay the vote on S.118 and S.429 until the afternoon but he did NOT cancel the morning house session. He had made clear the day before that they would be voting on bills (and not just those two bills). Jackson apparently had mistaken what Lewis said to conclude that there would be no voting at all in the morning session. That begs the question then – Why even have the session? Why didn’t Speaker Lewis cancel it? If the session wasn’t cancelled, then there was clearly house business to address, including bills to be voted on and possibly, yes possibly, some calendar bills to re-visit.

Every night, the General Assembly (GA) publishes its calendar for consideration the following day. So, for those legislators who just happened to be absent and did not physically hear the bills to be addressed, they are able to receive proper notice by going to the GA calendar. And so, by the end of the day on September 10, the GA calendar listed the bills (S.118 and S.429) that it would take up the next day. Also on the calendar were those additional bills still waiting for action. Representatives who checked with the calendar would have also seen that a morning session was still scheduled, and it was to begin at 8:30 am.

As Republicans entered the house chamber on the morning of Wednesday the 11th, they noticed that there were barely any Democrats present. In fact, they noticed only 9 Democrats. At that point there were only 51 Republicans. This was a concern since legislators need a quorum to conduct business, and that quorum is 61 members. It was possible that the session would be cancelled. As both Representatives Keith Kidwell and Larry Pittman commented: “None of us, including the Speaker, had any idea when we came in for that 8:30 session on Wednesday morning, that the opportunity to override the budget veto would occur that morning.” They knew that only 51 of their members were present (out of a total of 65), and only a handful of Democrats were there, so there was no way they could have planned to vote on the override with less than 61 of House members present.

But then, as Kidwell recalls, the door opened and 4 more Republicans walked in and 6 more Democrats. That brought the total to 55 Republicans and 15 Democrats, which totaled 70 representatives and a quorum.

At this point, Republicans consulted House Speaker Moore about taking the override vote. The truth is that Republicans had always been looking for an opportunity to pass an override vote when Democrats let their guard down. That opportunity just happened to present itself on September 11th, while Democrats were off doing things they either weren’t permitted to do or otherwise shouldn’t have been doing.

Now, if Democrats were truly enraged and concerned about the override vote, there were two possible courses of action that could have been taken:

(1) The Democrats could have left the house floor, except for 1 member. This way, there would have only been 56 representatives and certainly not enough to conduct official business. The lone Democrat would be left to challenge any vote that the speaker attempted to take (“No Quorum !!”)

(2) Democrats could have coordinated their action and each rose to debate the bill (“I rise to debate the bill”), being allowed 5 minutes each. They could have continued with stalling tactics, all the while desperately attempting to wrangle more fellow Democrats to the house chambers. [As it turns out, as explained later, there were many Democrats in the building, in a session violating a court order, and they knew they could easily be reached and could easily be rounded up].

Instead, as Pittman explains, Rep. Deb Butler chose to begin a very disorderly temper tantrum at acting Speaker David Lewis, contrary to all rules of decency and decorum. Other Democrats went around the chamber, turning on microphone lights of numerous other members who were not there, videoing Rep. Butler, and even joining in with her childish display of yelling at Speaker Lewis so that we could not hear all that he was saying in the attempt to restore order. In the midst of her shouting, Rep. Butler revealed that many of the Democrats (those on the House Redistricting Committee, as it turned out) were together “downstairs right now trying to redraw partisan heavy maps.” So, in effect, Rep. Butler was trying to say that it was unfair of Republicans to take a perfectly legal vote, which was within the rules, while her Democrat colleagues were downstairs violating the court order about redistricting, which clearly prohibited anyone from drawing maps anywhere but on the committee floor, in public view, where that committee was dealing with that matter. In all the commotion, only nine of the Democrats voted, NO of course, and the other six were too busy throwing a hissy fit to vote. Those six were allowed to be recorded as voting “Nay” later on, during the afternoon session.

Rep. Pittman commented similarly on Rep. Butler’s behavior and accusations: “So I guess it was unfair for us to take a vote while they were breaking the law.”

Despite the video coverage of Rep. Butler screaming and admitting that Democrats, in fact, were in a meeting in direct violation of the court order, Democrats had the audacity to try backtracking and to try to cover up her admission. They began spreading the story that house Democrats had been at a 9/11 memorial service, and how dare the Speaker hold a vote when it should have been observing the date out of respect. As it was later revealed, only one Democrat member was actually at a memorial service at that time. To make matters worse for Democrats, House Minority Leader Jackson had confirmed in a press conference that in fact Democrats had been in a redistricting committee meeting planned that morning.

The failure of Democrats to show up at the 8:30 am session was likely the fault of House Minority Leader Darren Jackson. Misinterpreting what Speaker Lewis said the day before about delaying the votes of S.118 and S.429, Rep. Jackson told fellow Democrats that they didn’t need to be at the 8:30 am session. Rep. Jackson later admitted this to Rep. Larry Pittman. He said he felt the debacle was really his fault.

So, as Rep. Pittman explains it: “There you have it. The Democrats have no one to blame but themselves for losing a 55-15 vote to override the Governor’s veto of the budget. Furthermore, there were a number of them who wanted to vote with us who were not there.”

The truth is that there were likely several Democrats who would have voted with Republicans to override Governor Cooper’s veto. After all, pay increases are a great way to earn loyalty from their voters. But as we all know, Cooper has been playing hardball with his Democratic legislators, much the same way that President Obama did in DC with his Affordable Care Act. Cooper had been putting a lot of pressure on them to vote as he demanded. We saw that with the Born Alive Survivors of Abortion Protection Act, where he coerced Democrats to vote against the bill and to uphold his veto. To pressure Democrats into voting his way, Cooper would invite them to the Governor’s Mansion and introduce them to individuals who he said he would endorse and support as their primary opponents. It is not a far stretch to imagine that several Democrats are secretly happy that the over-ride vote went down as it did. They could claim that it was all a mistake (blaming Rep. Jackson), avoid making a very unpopular vote, and still take comfort in the fact that their districts will get the benefits coming to them in the budget.

In the end, Republicans stayed the course, kept their eye on the prize, remained committed to their promises, and were able to override the despicable veto of an outstanding state budget.

House Republicans, we thank you. You make us proud and remind us that we did the right thing by voting for you and sending you to Raleigh to represent us and our values.

 

References:

Dennis Van Berwyn – An Overview of the Override Vote

House Bill 966 (HB966), the “2019 Appropriations Act,” Lexologyhttps://www.lexology.com/library/detail.aspx?g=d10fff97-5727-492d-969c-5afe1ade9d87

House Bill 966 (HB966), the “2019 Appropriations Act,” ncleg.net https://www.ncleg.gov/BillLookUp/2019/h966   and https://www.ncleg.gov/Sessions/2019/Bills/House/PDF/H966v7.pdf (bill text)

“Conflicts Between Gov. Roy Cooper and the General Assembly of North Carolina,” Ballotpediahttps://ballotpedia.org/Conflicts_between_Gov._Roy_Cooper_and_the_General_Assembly_of_North_Carolina

NC General Assembly website – www.ncleg.net

North Carolina State House, Ballotpediahttps://ballotpedia.org/North_Carolina_House_of_Representatives

North Carolina State Senate, Ballotpediahttps://ballotpedia.org/North_Carolina_State_Senate

 

APPENDIX I: (The NC General Assembly)

A.  Make-Up of the General Assembly

The North Carolina House of Representatives is comprised of 120 members. Currently, Republicans hold a majority, 65-55. They lost 10 seats in the 2018 election. In the 2017-2018 session, Republicans held a supermajority – 75-45. The House Speaker is Rep. Tim Moore.

The North Carolina Senate is comprised of 50 members, of which Republicans hold the majority – 29-21. They lost 6 seats in the 2018 election. The Senate Pro Tempore is Senator Phil Berger.

The Governor has the power to veto any bill that comes to his deck for a signature. If the legislature feels strongly about the bill and is strongly opposed to the reasons the Governor provided to support his veto, both chambers can vote to override the veto. A vote equivalent to 3/5 of those in attendance in the chamber at the time of the vote (provided a quorum is met) is required by each chamber to override the veto.

If the General Assembly does not pass a budget or if the budget bill is vetoed by the Governor (without an override), there is a provision in North Carolina law that allows the previous budget to remain on in place until a new budget is approved. In other words, this stop-gap measure allows the state to run with a budget at all times. This “autopilot” law was enacted in 2016, inspired by a lengthy 2015 standoff between legislative leaders and then-Gov. Pat McCrory. The law creates an automatic continuation budget (ie, the prior budget remains in effect) such that spending remains at current levels.

B,  Background

With the 2018 election, Republicans lost their supermajority in the chamber. Democrats gained 10 seats, reducing the Republican majority from 75-45 to 65-55. [A Republican supermajority simply means that as long as Republicans vote strictly along party lines, they are always able to automatically over-ride a Governor’s veto]. The requirement for over-riding a veto is that a 3/5 majority in each chamber is needed.

North Carolina has a divided government, meaning that government power is shared, by a separation of powers and a system of checks and balances, between the Governor and the executive Council of State (executive branch), the General Assembly (legislative branch), and the state court system (the judicial branch). Sometimes a political party is able to hold a state government “trifecta” which means that the party controls the Governor’s office and a majority of the Council of State positions, a majority in the state house, and a majority in the state senate. Currently, no political party holds a state government trifecta. (The Republican Party held such a trifecta with the 2016 election – Pat McCrory as a Republican Governor and Republican majorities in both chambers of the legislature). As of September 17, 2019, there are 22 Republican trifectas, 14 Democratic trifectas, and 14 divided governments where neither party holds trifecta control. In the 2018 election, Democrats had a net gain of six trifectas and Republicans had a net loss of four trifectas. Prior to that election, there were 26 Republican trifectas (of which North Carolina was one), eight Democratic trifectas, and 16 divided governments.

APPENDIX II: (Promises to NC Teachers)

(1) The pay increases included in the 2019-2021 state budget (HB966) represent the 8th and 9th consecutive pay increases to public school teachers by REPUBLICANS in the NC General Assembly.

(2) When Democrats held control of the NC General Assembly, teachers hardly ever received a pay increase. Even for five years prior to the historic political shake-up in the NC GA (when Republicans gained the majority), teachers never saw a pay increase; their pay remained stagnant.

(3) The average teacher pay in 2017-2018, thanks to the Republicans, was $53,975.00.

(4) Since Republicans have held the majority in the General Assembly, North Carolina has enjoyed the third fastest-rising teacher pay in the country.

Amending the NC State Constitution: The Six 2018 Ballot Initiatives

NC Legislature - building

by Diane Rufino, August 26, 2018

This overview is written for the purpose of educating North Carolina voters on the six proposed amendments to the North Carolina state constitution.

I.  WHAT YOU WILL SEE ON THE BALLOT:  The following will likely be the language you will see on November’s ballot with respect to the six (6) proposed amendments to the North Carolina constitution. I say “likely” because two of the amendments (#3 and #4 below) were challenged by Governor Roy Cooper and a federal judge granted his injunction – meaning that absent a challenge by the legislature that is successful OR having the legislature re-drafting them, those amendments, as originally written and communicated, cannot appear on November’s ballot. Amendments #3 and #4 below contain the re-drafted language, as of August 24, but we don’t know yet if Cooper will re-challenge.

So, as of today (Aug. 26), the language you will likely see on November’s ballot regarding the proposed amendments to the NC state Constitution is as follows:

Amendment 1:           [  ]  For     [  ]  Against

Constitutional amendment protecting the right of the people to hunt, fish, and harvest wildlife.

 

Amendment 2:           [  ]  For     [  ]  Against

Constitutional amendment to strengthen protections for victims of crime; to establish certain absolute basic rights for victims; and to ensure the enforcement of these rights.

 

Amendment 3:           [  ]  For     [  ]  Against

Constitutional amendment to establish an eight-member Bipartisan Board of Ethics and Elections Enforcement in the Constitution to administer ethics and elections law.

 

Amendment 4:           [  ]  For     [  ]  Against

Constitutional amendment to change the process for filling judicial vacancies that occur between judicial elections from a process in which the Governor has sole appointment power to a process in which the people of the State nominate individuals to fill vacancies by way of a commission comprised of appointees made by the judicial, executive, and legislative branches charged with making recommendations to the legislature as to which nominees are deemed qualified; then the legislature will recommend nominees to the Governor via legislative action not subject to gubernatorial veto; and the Governor will appoint judges from among these nominees.

 

Amendment 5:           [  ]  For     [  ]  Against

Constitutional amendment to reduce the income tax rate in North Carolina to a maximum allowable rate of seven percent.

 

Amendment 6:           [  ]  For     [  ]  Against

Constitutional amendment to require voters to provide photo identification before voting in person.

 

II.  WHAT THE AMENDMENTS MEAN and WHAT THEY SEEK TO ACHIEVE: The NC legislature considered various potential constitutional amendments, in addition to the ones which will appear on November’s ballot. Some of the additional amendments considered included removing Article I, Section 4 (“Secession Prohibited”), removing Article I, Section 5 (“Paramount Allegiance to the Federal Government”), removing the provision in Article I, Section 30 (“Militia and the Right to Bear Arms”) which can serve to limit the right of conceal carry (“Nothing herein shall justify the practice of carrying concealed weapons, or prevent the General Assembly from enacting penal statutes against that practice”), and removing the limitation in Article VI, Section 4 (“Qualification for Voter Registration”) which is can be characterized as a Jim Crow-era law.  Instead of putting all of the proposed amendments on the ballot, the legislature polled all their potential suggestions across the state and decided to use only the top six.  The highest-polling amendments were: #1: The Right to Hunt, Fish, & Harvest Wildlife, and #2: Voter ID.  These amendments, by the way, polled highest across political lines, racial lines, income differential, education, etc.  [NC state constitution –  https://www.ncleg.net/Legislation/constitution/ncconstitution.html ]

The following is an explanation of each proposed six constitutional amendment (Ballot Initiative), as well as the corresponding NC bill that contains its full language.  All bills can be accessed from www.ncleg.net

Amendment 1:   [Senate bill 677 – S677]

This amendment enshrines the public’s natural right to hunt, fish, and harvest wildlife in the state constitution, to be free from any potential attempt to limit or to burden such right. While enshrining this natural right (mentioned in Genesis), it also has the effect of setting up potential challenges to hunting restrictions by saying that any limits on this right can only come from laws intended to promote wildlife conservation and to protect the future of hunting and fishing.

 

Amendment 2:   [House bill 551 – HB551]

The rights of people who are victims of crimes are delineated and enshrined in this amendment, and are:

  • Being notified of criminal proceedings against the accused (the perpetrator)
  • The right for the victim to speak at all hearings involving plea, sentencing, parole, or the release of the defendant
  • The right to “full and timely” restitution (the right to be “made whole” by the defendant/perpetrator; the right to be put back into the position as if the crime had not been committed)
  • The right to be “reasonably protected” from the defendant
  • A “prompt conclusion” to the case (prompt closure for the victim)
  • Victims’ attorneys can petition the court to enforce any of the above provisions

 

Amendment 3:   [House bill 913 – HB913]

This amendment would give more power over appointments to the legislature (the General Assembly), thus taking power away from the Governor who currently has been delegated such authority. The proposed amendment clarifies that the General Assembly has “control over any executive, legislative, or judicial appointment,” although the bill (HB913) doesn’t say exactly how the legislature would exert that control.  [The intent is to vest power to make potentially important appointments – ones who exert power and influence over policy and enforcement in the state – with the legislature, which is the body closest to the people. The legislature, or General Assembly, is “the people’s body,” where accountability in government is most achievable.  Legislators in both chambers serve two-year terms.]

 

Amendment 4:   [Senate bill 814 – S814]

This amendment changes the rules for who appoints judges when vacancies occur between elections. Appointments to fill judicial vacanices that occur between elections can account for up to 40% of judges who sit on the courts in the state of North Carolina. Currently, the Governor appoints them. Under the proposed amendment, a system would be set up where anybody in the state could submit nominations to a non-partisan “Judicial Merit Commission” which would then evaluate the fitness of those nominations and then send that information to the General Assembly. The legislature would then pick two names to send to the Governor. In cases where the vacancy occurs right before an election, the Chief Justice of the NC Supreme Court would make the selection instead of the Governor.   [Judicial appointments are extremely important. We’ve all witnessed over the years how liberals and progressives (ie, the Democratic Party) have sought to get around established law or policy, or to advance their agenda faster than the general public would allow thru the ordinary democratic process, by going to the courts where there are too many liberal and otherwise unprincipled, inexperienced, and untested judges, and judges appointed merely in exchange for political favors and donations, who are happy and without conscience to do so. The intent of this amendment is to vest power to make judicial appointments with the legislature, which is the body closest to the people. The legislature, or General Assembly, is “the people’s body,” where accountability in government is most achievable.  Legislators in both chambers serve two-year terms and therefore can quickly be removed for abusing their power or for using the judicial appointments power recklessly.]

 

Amendment 5:   [Senate bill 75 – S75]

This amendment caps the state income tax at 7 percent (7%), which means that the General Assembly would be prevented from instituting an income tax in excess of that. Currently, the NC constitution caps the income tax rate at 10 percent (10%). The initial bill from the Senate would have set the cap at 5.5% which is essentially the current tax rate.

Governor Cooper and left-leaning interest groups are opposed to this amendment because they want the General Assembly to have the flexibility to increase the tax rate should the state need it in an emergency situation. The Republicans, however, have provided for such an emergency, through the state’s “Rainy Day Fund,” which currently contains $2 billion. The legislature further requries each county to have 8% of surplus funds in reserve. Cooper hates the fact that the state has this fund just sitting there. He thinks it should be plundered and used for whatever the state government thinks is more pressing at the time. Cooper believes the proper way to raise emergency funds is by raising the state taxation rate. Republicans, on the other hand, believe that is a bad way to raise such funds. The reason it believes such is that it takes too long to raise the money; sales tax, they believe, is the fastest way.

 

Amendment 6:   [House bill 1092 – HB1092]

This amendment is intended to provide the photo identification requirement for voters that the 2013 NC omnibus Voter ID law required but which was struck down by the 4th Circuit of Appeals in 2016. (It is termed an “omnibus” bill because it made several changes to NC;s election laws, in addition to adding the photo ID requirement).  Currently 34 states have some form of a Voter ID law. And all of the southern states have one except North Carolina.

 

III.  CURRENT STATUS OF THE BALLOT INITIATIVES (the lawsuits)

Four of the six ballot initiatives (proposed constitutional amendments) are currently being challenged; opponents want them kept off November’s ballot.  The only initiatives not being challenged are the ones protecting the Right to Hunt & Fish and Victims’ Rights (which are the first two listed above).

On August 15, Governor Roy Cooper sued to challenge the initiatives that deal with his appointments power (amendments #3 and #4 above).  The language of the amendments above represents the “revised” or re-drafted” language in response to Cooper’s legal challenge.

And the NAACP, along with Clean Air Carolina, sued to challenge those amendments, plus the ones limiting the general assembly on its taxing power and requiring a photo identification to vote. The parties asked for injunctive relief.  Governor Cooper challenged the language of the amendments, alleging they are misleading and do not adequately inform voters as to what provisions in the state constitution they seek to amend and what they seek to achieve. Furthermore, he claimed the amendments would “take a wrecking ball to the separation of powers” in Raleigh. The NAACP and Clean Air Carolina challenged the Voter ID amendment on the grounds that it is will disparately impact African-Americans and is therefore an attempt to target them and disenfranchise their voting rights and challenged the Income Tax cap on the grounds that the legislature shouldn’t be precluded from increasing the tax rate (above 7%) if it needs to.

The original language of the amendments, before the revision, and which was the language challenged by Cooper, was as follows:

Amendment 3:  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 commissioners exercising executive or judicial authority.

Amendment 4:  Constitutional amendment to change the process for filling judicial vacancies that occur between judicial elections from a process in which the Governor has sole appointment power to a process in which the people of the State nominate individuals to fill vacancies by way of a commission comprised of appointees made by the judicial, executive, and legislative branches charged with making recommendations to the legislature as to which nominees are deemed qualified; then the legislature will recommend nominees to the Governor via legislative action not subject to gubernatorial veto; and the Governor will appoint judges from among these nominees.

On August 21, a 3-judge panel agreed with Governor Cooper and granted the injunction. The panel, however, disagreed with the NAACP and Clean Air Carolina on their separate challenges (Voter ID and Income Tax). The panel held that there is no proof to show that Voter ID is discriminatory or that the requirement to present one to vote actually poses a meaningful burden or prevents a person from voting. If a person is truly intent on voting, the requirement of a photo ID poses no reasonable hardship.

[Injunctive Order, issued on August 21 –  https://www.documentcloud.org/documents/4779492-18-CVS-9805-Order-on-Injunctive-Relief.html ]

The 3-judge panel found fault with the language of the amendments (#3 and #4), claiming that initiative #3 doesn’t adequately explain what the amendment seeks to achieve and initiative #4 is simply misleading. Consequently, the NC Board of Elections is enjoined (prevented) from printing ballots containing initiatives #3 and #4.

Does this court ruling mean that the amendments will not be on November’s ballot??   No.  There are two options open to the legislature:  (1)  They can appeal the ruling; or (2) The General Assembly can convene a special session to re-write the ballot text to overcome the defects as identified by the court.  The General Assembly has already has convened a special session. The House met on Friday, August 24, to re-draft the amendments, and the Senate will approve them tomorrow (Monday, August 27).

 

IV.  VOTER FRAUD – Does it Exist?  Is there a Potential for Voter Fraud Here in NC?

Regarding Voter Fraud, the Heritage Foundation explains:

“There are three take-away points:

  • The right to vote in a free and fair election is the most basic civil right, one on which many other rights of the American people depend.
  • Congress and the states should guarantee that every eligible individual is able to vote and that no one’s vote is stolen or diluted.
  • Voter fraud is real and hundreds of convictions have been made and documented.”

First of all, let’s review constitutional jurisprudence on regarding state Photo ID voter laws.

In the years after the turn of the century (2000 onward), the states began becoming aware of voting fraud and voting irregularities. One by one they began instituting laws designed to reduce the likelihood of fraud and to ensure integrity in their election process. A federal commission was even empaneled to study voter fraud and it concluded that it exists and recommended that each state enact some sort of law to address voter integrity. In the aftermath of that conclusion, more and more states began enacting laws. These laws essentially fell into four categories: those with a strict photo ID requirement, those with a relaxed photo ID requirement, those requesting an ID (but photo not required), and those with a strict non ID requirement.  The strictest voter law and the one potentially posing the greatest burden to a person’s right to vote is a Strict Photo ID law. A challenge to such a Photo ID law was heard by the Supreme Court in 2008, in the case Crawford v. Marion County Board of Elections.  [For an overview of the laws in the 50 states:  http://www.ncsl.org/research/elections-and-campaigns/voter-id.aspx ]

In 2005, the Indiana state legislature passed a law requiring all voters who cast a ballot in person to present an acceptable photo ID, issued either by the United States (a federal ID) or by the state of Indiana (such as a driver’s license). Again, Indiana’s Voter ID law was of the strict photo ID type. The Democratic Party of Indiana and interest groups representing African-Americans and elderly citizens filed suit and challenged the law, alleging that it constituted an undue burden on the right to vote.

At trial, the challengers could not produce any witness who could not meet the law’s ID requirement, who could not obtain an acceptable identification. (The Indiana law, as did NC’s Voter ID law, includes a provision that should a person not be able to afford a photo ID or not be able to obtain one, the state would provide one for them, free of charge). The federal district court (federal trial court) upheld the law but on appeal, the appellate court appeared to be divided. The dissenting judge claimed that the law was a “thinly-veiled attempt to dampen turn-out by those likely to vote for Democratic candidates.”  The Supreme Court agreed to hear the case.

Note:  It was not alleged that Indiana’s strict photo ID voter law negatively or disparately impacted any other minority group, other than African-Americans.  It should also be noted that almost all minority groups vote Democratic.  (Why are African-Americans singled out?  Could it be that they are incapable of the same responsibilities that other citizens are capable of?  Or is it more likely related to the fact that 90% or so of African-Americans identify as Democrats and that African-Americans make up the largest of America’s minority groups?)

The Supreme Court heard the case and handed down its opinion in 2008. There were actually two majority opinions written by the court (something very rare). One was written by the very liberal justice, John Paul Stevens, and the other was written by the very conservative justice, Antonin Scalia. The Court held that Indiana’s strict Photo ID law was closely-related to the state’s legitimate state interest in preventing voter fraud and ensuring integrity in its elections. The Court further held that the photo requirement was merely a slight burden imposed on a person’s right to vote which in no way outweighed that legitimate state interest. The Court characterized the strict photo requirement in Indiana’s law as “Neutral and Non-Discriminatory.”

The Crawford case tells us, and each state legislature, that a strict photo requirement in a voter law: (1) Poses no meaningful burden to the right to vote; and (2) is, on its face, “Neutral and Non-Discriminatory.”  It should also instruct every court in the federal judiciary of the same. Supreme Court opinions, once handed down for the first time on a particular issue, become precedent.  Precedent refers to a “preceding” opinion which is to be regarded as a guide to be applied in subsequent similar cases.

The 4th Circuit Court of Appeals should have applied the Crawford opinion when it heard the appeal from the NAACP and other interest groups regarding the NC Voter ID law rather than substituting its own judgement for that of the NC General Assembly on a law that was, on its face, neutral and non-discriminatory (and in fact, more relaxed than the Indiana law), and therefore it should have upheld it.

Discussing Voter Fraud and the unfortunately opinion by the 4th Circuit, Jay Delancy of the NC Voter Integrity Project explained that 90% (or more) of African-Americans are registered as Democrats and vote Democratic. And so there will always be a racial impact, or a racial component or racial argument, in anything having to do with politics, political posturing, political decisions, or political policy. There will always be a racial impact when a state legislature does any tweaking to its election laws or when it re-draws its district lines, or gerrymanders.  Because of the extraordinarily high political identity of African-Americans with the Democratic Party, one can never truly separate race from politics or from political party.

He continued, explaining that a law designated to prevent voter fraud (which has been consistently and historically perpetrated primarily by the Democratic Party) will of course be seen racial. The re-drawing of district lines designed to benefit the political party in power, which happens to be allowed by law, will necessarily also have a racial component. It is NOT intentional discrimination based on race and there is NO impact based on race. It is what it is simply because of the extraordinarily high racial political identity.

Jay has educated groups, the NC legislature, the NC Board of Elections, other states, the FOX News audience, and even Rachel Maddow over the years on voter fraud, instances of actual voter fraud, the many insidious ways that fraud is committed, the various ways that the potential for fraud exists, and how such potential can be mitigated. For example, in 2012, the NC Voter Integrity Project reported to the State Board of Elections 30,000 deceased voters still on the NC voter registration rolls. Under Democratic control at the time, the Board chose to do nothing and the names were never purged.  Also in 2012, the Voter Integrity Project noted that 175,000 “inactive” voters suddenly became active by in-person, on-the-day-of-election voting. Most of those 175,000 “inactive” voters had been highly suspicious to begin with. They had unreliable addresses or had mail returned to the Board of Elections. Yet suddenly, a huge number of such voters showed up to vote.

Looking for instances of fraud, Jay decided to use a novel method which cross-referenced two different lists of individuals. He looked at the information provided by the state Board of Elections of those who voted in the 2012 election and cross-referenced those names with those individuals who had sought to be disqualified to serve jury duty in the state. In North Carolina, persons can legally get out of jury duty, subject to perjury, if they fall into any one of 4 categories: (1) felon;  (2) non-citizen;  (3) reside outside the district;  (4) cannot speak English.  Jay looked at the list of individuals who got out of jury duty by asserting they are “non-citizens” and cross-checked to see how many of them voted in the 2012 election. He found thousands of such potentially fraudulent voters. He took the information to the NC Board of Elections (state Board of Elections) and after several years, they finally settled with the matter out of court. Jay said he is pleased with the outcome.

Here are some of the ways that voter fraud is committed:

  • Voting early and voting often (or just voting often), in the same jurisdiction
  • Duplicate voting – registering in multiple locations and voting in the same election in more than one jurisdiction
  • Using the name of a person that has died (but whose name still remains on the state voter registration rolls) to vote
  • Voting as an illegal alien (Jay has found many persons who presented, under penalty of perjury, that they couldn’t serve jury duty because they were not a legal citizen yet voted)
  • Voting using the name and address of someone who has moved away
  • Voting using the name and address of a convicted felon (felons temporarily lose the right to vote but remain registered)
  • Voting even though the person is a convicted felon
  • Voting using a false identity
  • Voting using a false registration: (voting under fraudulent voter registrations that either use a phony name and a real or fake address or claim residence in a particular jurisdiction where the registered voter does not actually live and is not entitled to vote). In Wake and Durham counties, 150 fake voters were created by ACORN. The NC Voter Integrity Project believes there were more, but they stopped looking at some point. They took the information to the state Board of Election by it chose not to investigate or prosecute
  • Fraudulent use of absentee ballots (requesting absentee ballots and voting without the knowledge of the actual voter; or obtaining the absentee ballot from a voter and either filling it in directly and forging the voter’s signature or illegally telling the voter who to vote for)
  • Voting using a non-existent address (those campaigning for office and who canvass neighborhoods to talk to voters, using information provided by the Board of Elections will find addresses on the list but no physical address existing)
  • Using the address of someone the person knows for purposes of voting fraudulently (Ex: sometimes there will be 8, 10, 12, 15, 20 persons voting using the very same address, even when the address is in an area zoned only for single-family)
  • Buying votes (paying voters to cast either an in-person or absentee ballot for a particular candidate)
  • Voting in multiple counties for the same election
  • Voters creating fake addresses
  • Unions providing funds to have its members establish “temporary” residences in targeted states prior to elections (while not actually moving or living there) and then voting in those states
  • Persons misappropriating other person’s addresses (a friend of mine, just for the heck of it, looked up her address with the Board of Elections and found that several persons were registered to vote from her address, in addition to her and her husband, the only legal residents)
  • Political “community-organizers” going into high schools to register students, including those who are illegal, by giving out false information (such as “you can vote even if you aren’t a citizen”)
  • Groups intent on perpetrating fraud on the election process have gone through cemeteries, taking down names and other information from gravestones of those who recently passed away (each state has a law that instructs the Board of Elections of how often it must purge the names from its voter rolls of those who have passed. See the Appendix at the end of the article)
  • Voters intent on committing voter fraud have purposely voted in more than one state for the same election (for example, Jay has found several who have voted not only in North Carolina, but also in Tennessee and Florida in the same election)
  • Volunteers with a political party (usually Democratic) going to nursing homes, retirement communities, and other elder care facilities to register or re-register members, and then filling out their mail-in ballots or busing them to the polling location and voting for them (under the guise of being a caregiver); many elderly persons in such homes, communities and facilities lack the mental capacity to know how they are voting or lack the ability to prevent the volunteer from coercing their vote
  • Handing out fake ID’s to homeless persons, addicts, or other persons who cannot provide proof of residence (usually providing a free lunch or $5.00) and then taking them to the polls
  • Illegal “assistance” at the polls (forcing or intimidating voters—particularly the elderly, disabled, illiterate, and those for whom English is a second language—to vote for particular candidates while supposedly providing them with “assistance”)
  • Altering the vote count (changing the actual vote count either in a precinct or at the central location where votes are counted)
  • Ballot petition fraud (forging the signatures of registered voters on the ballot petitions that must be filed with election officials in some states for a candidate or issue to be listed on the official ballot)

Jay Delancy is the foremost expert in North Carolina on voter fraud and speaks about it frequently. He is a watchdog who works tirelessly to identify instances of voter fraud, to identify schemes, to support efforts by our state legislature to protect against voter fraud, to suggest ways to minimize potential voter fraud, and to educate about voter fraud. He provides updates on his Facebook page, including this one video he made:  https://www.facebook.com/11818728/videos/10105605658577189/?id=11818728

With all the opportunities and potential for voter fraud, the state values the procedures and provisions put into our election laws to address the problem, including the provisions for cleaning out voter registration lists and the provision for “Confirmation Mailings” (to confirm that a listed voter still resides at the address registered).  These provisions are common-sense and valuable.

However, liberal judges don’t necessarily think so. There have been several instances where courts have instructed Boards of Election to reinstate voters who have been removed from the voter registration rolls for good and documented cause and recently, a judge struck down a provision allowing voters who have been determined to no longer reside at a certain address to be removed from the voter rolls.

On August 8, a federal judge invalidated part of North Carolina’s election law – the provision that allows one voter to challenge another’s residency. This provision was used successfully by watchdog and election integrity groups to scrub thousands of names off the voter registration rolls in NC ahead of the 2016 election. (Not one error was made and no one was disenfranchised of his or her right or ability to vote). The goal of this provision, of course, was to prevent someone seeking to fraudulently cast a vote or to cast an additional vote by using the name and address of someone no longer living or no longer residing at the address.

Volunteers with the NC Voter Integrity Project had used this provision to purge 3500 – 4000 voters from the voter registration rolls in Cumberland, Moore, and Beaufort counties. The NAACP challenged the removal of those names, and challenged the provision itself, alleging that the purge of voters disproportionately targets African-American voters. (Again, everything negatively impacts only African-Americans).  The NAACP, however, did not make clear how it believes the provision so disproportionately targets them.

Jay Delancy, the director of the NC Voter Integrity Project, said the effort in those counties had one purpose and one purpose only and that was reduce the potential for voter fraud.

In striking down the provision, the judge (Judge Biggs) said that the provision is pre-empted by the 1993 federal “Motor Voter” law, an initiative by the Clinton administration aimed at expanding voter opportunities by registering teens when they go for their drivers permit and license. The “Motor Voter” law (officially name: “The National Voter Registration Act”) mandates certain procedures to reduce the risk that a voter’s registration might be erroneously cancelled. The judge said that allowing one voter to challenge another’s residency contravenes these procedures and frustrates an important goal of the law.

It should be noted that the residency challenges under the challenged provision are not frivolous challenges, but are in line with established election law. Each residency challenge in Cumberland, Moore, and Beaufort counties followed after a postcard was mailed to a particular voter and it was returned as “Undeliverable.” [This scheme was devised by a member of my Tea Party group].  County Elections Boards are allowed to accept returned mail as evidence that the particular voter doesn’t currently live at the address. But that isn’t the end of the inquiry or determination. Before the name is removed from the voter registration rolls, a hearing is called where the challenged voter can present evidence to show that he or she still lives there. If the voter doesn’t appear for the hearing or cannot or does not refute the evidence, then he or she is removed from the voter roll. In other words, North Carolina election laws ensure that their provisions meet due process requirements.

Regardless of the fact that due process requirements are met, Judge Biggs nevertheless struck down the common-sense provision and ordered the Boards of Elections in Cumberland, Moore, and Beaufort counties to reinstate all of the 3500-4000 cancelled voter registrations.

Jay is asking the state legislature to revise state election law to add provisions to once again empower citizens who wish to help minimize the opportunity and potential for voter fraud by helping to identify and challenge illegal and fraudulent voters.

 

References:

Jay Delancy addresses voter fraud on Facebook:   https://www.facebook.com/11818728/videos/10105605658577189/?id=11818728

Voter Identification Requirements – Voter ID Laws –  http://www.ncsl.org/research/elections-and-campaigns/voter-id.aspx

Governor Cooper’s Injunctive Order, issued on August 21 –  https://www.documentcloud.org/documents/4779492-18-CVS-9805-Order-on-Injunctive-Relief.html

NC state constitution –  https://www.ncleg.net/Legislation/constitution/ncconstitution.html

Heritage Foundation Explains Voter Fraud –  https://www.heritage.org/election-integrity/heritage-explains/voter-fraud

Maintenance of State Voter Registration Lists: A Review of Relevant Policies and Procedures –  https://nass.org/sites/default/files/reports/nass-report-voter-reg-maintenance-final-dec17.pdf

 

APPENDIX:

MAINTENANCE OF STATE VOTER REGISTRATION LISTS:  A REVIEW OF RELEVANT POLICIES AND PROCEDURES

Referenced at:  https://nass.org/sites/default/files/reports/nass-report-voter-reg-maintenance-final-dec17.pdf

Verification of Voter Registration Information —

The voter registration system attempts to match driver’s license numbers with the motor vehicle database. If the last four digits of the voter’s social security number (SSN4) are provided, the number is checked against the Social Security Administration (SSA) database through the American Association of Motor Vehicle Administrators (AAMVA). If no match is found, the voter will be notified. If the information remains unverified, the applicant must show identification before voting.

Address Confirmation Procedures —

County boards of elections attempt to verify the address of initial voter registration applicants by sending a notice to the applicant by non-forwardable mail, at the address provided on the application form. The county will register the applicant if the Postal Service does not return the notice as undeliverable to the county board. If the first notice is returned as undeliverable, then the county board will send a second notice by non-forwardable mail to the same address to which the first notice was sent. If the second notice is not returned as undeliverable, then the county board will register the applicant. (See NCGS § 163-82.7)

Each county board of elections conducts a program to remove from the registration list voters who have moved out of the county, and update registration records of persons who have moved within the county. (163-82.14)

After every congressional election, each board of elections sends a confirmation mailing to every voter if the board has not confirmed the voter’s address by another means. (163-82.14)

If a voter fails to respond to a confirmation mailing, and does not vote in an election from the date of the notice through the next two general federal elections, the voter will be removed from the voter registration list. (16382.14)

Removal of Names –

A voter will be removed from the registration list if the voter:

  • dies;
  • is convicted of a felony;
  • confirms in writing a change of address outside of the county;
  • fails to respond to a confirmation notice and does not vote or update the voter’s registration through two general elections. (163-82.14)

Obtaining the Names of Voters who are Deceased or Convicted of a Crime –

Each month the North Carolina Department of Health and Human Services provides the State Board of Elections with the names of deceased persons who were residents of the state, and the Board distributes the appropriate information to each county board of elections. (163-82.14)

Each month the State Board of Elections provides the county board of elections with the names of persons from that county who have been convicted of a felony. (163-82.14)

Upon receipt of a notice of felony conviction from the US Attorney, the Executive Director of the State Board of Elections will notify the appropriate county.