State's high court must uphold the law not partisanship
Published August 31, 2023
In the not-too-distant future North Carolina’s Supreme Court will be the forum for one of the most significant rulings in state history. When cases challenging key pieces of legislation -- making their way into law with partisan votes overriding vetoes by Gov. Roy Cooper – arrive at the high court the justices won’t only be called to contemplate the constitutionality of the content of the bills but also to examine their personal behavior, relationships and past positions in government.
By their decisions, these justices will display:
-- Their loyalty to the founders of the state and the constitutional principles they established for “separate and distinct” branches of government;
-- Their partisan, familial fealty to the leaders of the legislative branch of government – particularly state Senate leader Phil Berger, the powerful Republican who represents Rockingham County.
Republican leaders – and Sen. Berger directly and personally – have much at stake in the judicial resolution of at least two key pieces of legislation likely to land before the court.
One key piece of legislation, Senate Bill 512, removes the governor’s power to appoint members of key boards and commissions – including the Board of Transportation, the Environmental Management Commission, Coastal Resources Commission, Wildlife Resources Commission and make modifications to the governor’s appointment authority of the state Utilities Commission.
Senate Bill 747 makes a variety of changes in state election laws that, based on past voting data, will likely make it more difficult or limiting for voters who cast ballots for Democratic candidates.
When it comes to separation of powers issues, such as those presented in Senate Bill 512 where the legislature seeks to usurp the governor’s appointive powers and infringe on the ability of the state’s chief executive to “take care that the laws are faithfully executed” – the high court has repeatedly ruled the legislature cannot act in ways that essentially give it the governor’s power to control boards and commissions that determine how laws are enforced.
“When the General Assembly appoints executive officers that the Governor has little power to remove, it can appoint them essentially without the Governor’s influence. That leaves the Governor with little control over the views and priorities of the officers that the General Assembly appoints. When those officers form a majority on a commission that has the final say on how to execute the laws, the General Assembly, not the Governor, can exert most of the control over the executive policy,” wrote then Chief Justice Mark Martin, a Republican, in the 2016 McCrory v. Berger opinion invalidating a law. While legislators can make appointments to executive boards and commissions, the state’s high court has ruled, it cannot do it in a way that gives the legislature control of those groups.
Legislative staffers, in a memo outlining details of Senate Bill 512, issued a similar caution. Portions of the bill “may pose constitutional concerns” but also noted other portions of the bill might provide a constitutional dodge.
Regretfully, for three of the high court’s justices, the law, the State Constitution and court precedent may matter little to their decision.
Justice Tamara Barringer, a Republican, was a member of the state Senate and voted for laws on appointments the high court later ruled were unconstitutional.
Justice Phil Berger Jr., the name-sake son of the powerful state Senate leader in this matter of the appointments legislation Senate Bill 512 as well as Senate Bill 747 the election bill, has an obvious conflict. He should recuse himself from participation in cases that so directly involve his father. But based on past behavior, that isn’t likely.
When it comes to elections and most other acts of the legislature, Chief Justice Paul Newby has said that the courts have no role. “All power not expressly granted to the federal government or limited by the constitution resides in the people and is exercised through the General Assembly,” Newby has contended. Basically, if the legislature does it, that’s the final word. Further, he says when it comes to legislative appointees, “the legislature statutorily enables itself to select the official, it is simply filling the position and not controlling the appointee.” Does he really believe a legislative leader like Phil Berger or governors like Democrat Cooper or Republican Pat McCrory, would tolerate appointees who acted contrary to their desires?
Not only does Newby say that there’s no judicial review of legislative actions when it comes to elections, he even questions whether there’s an imperative that elections be conducted in a fair manner.
Last year, when hearing a case concerning gerrymandering of North Carolina election districts, Newby explicitly pointed out North Carolina’s Constitution doesn’t explicitly demand fair elections. While it is common parlance to talk of “free and fair” elections, during the February 2022 hearing Newby noted: “We have ‘free.’ We don't have ‘fair.’ They have ‘free and fair, correct?” Newby was referring to the Pennsylvania State Constitution in contrast to North Carolina’s.
If the legislature enacts laws that seek to give one group, like the Republican Party, an advantage by placing limits on mail-in absentee voting since Democrats use it in significantly greater numbers – so be it. Using the law to rig elections is fine since there’s no express Constitutional requirement that they be fair, is what Newby apparently contends.
Since 1803 it has been an established principle that courts have the authority – the duty – to review the acts of the legislative and executive branches of government to determine their constitutionality. The justices of North Carolina’s Supreme Court need to live up to that fundamental responsibility. Further, they should do it in a transparent manner assuring North Carolinians it is the law and constitution that comprises the foundation for their decisions – not partisan bias, heredity or political ideology.