Veto showdowns and voter ID: Democracy will be on the defensive again at the legislature in 2023

Published January 19, 2023

By Steve Ford

The N.C. General Assembly gathered on Jan. 11 amid trappings of ceremony and good cheer to kick off its 2023 session. Then reality reared its head: At least in the state House, the majority party apparently intends to play rough.

Democrats in the minority are left to wonder if their Republican counterparts see them not as duly elected colleagues with whom they may disagree over this bill or that, but as enemies to be muzzled and marginalized.

By extension, those enemies must include voters who sent the Dems to Raleigh – perhaps to defend voting rights, expand Medicaid and adequately fund the public schools, among other public interest priorities.

This isn’t a case of “If you ain’t cheatin’, you ain’t tryin’,” as the stock car racers used to say. No rules are set to be broken. That’s because they’ve changed the rules.

The main order of business as the session convened, aside from swearing in the crop of legislators chosen in November for the next two years, was passage of operating rules for both the House and state Senate. Not far from anyone’s mind was the GOP’s newly enhanced margin in each chamber.

The party wound up with 30 of the 50 Senate seats – just enough under the state constitution to enable it to override any vetoes issued by Democratic Gov. Roy Cooper. In the 120-seat House, though, the Republicans’ total of 71 seats came up one short of a veto-proof majority. (An override must be approved in both chambers by three-fifths of the members present and voting.)

When the previous set of House rules took effect, there was at least a nod toward what could be considered fair play. Here’s that language, as adopted in final form on May 6, 2021:

  • “RULE 44.2 Veto Override. – (a) Other than in a reconvened session [i.e., in an interrupted session resumed on the same day], no vote shall be taken on overriding a gubernatorial veto on a House bill until the second legislative day following notice of its placement on the calendar.” Paragraph (b) made the same pledge regarding House override votes on Senate bills.

The upshot was that Democratic House members were guaranteed a day’s warning before Republican leaders would call for an override vote. The same courtesy was extended in the Senate, with the minority leader being given “at least 24 hours’ notice” that a vetoed bill might be considered – a provision that was carried over in the rules for 2023-24.

Yet when the House temporarily adopted its new rules on Jan. 11, the no-surprises section simply disappeared. The effect is that, barring some change when the rules are adopted in final form, once Cooper issues a veto, Democrats in the lower chamber will constantly have to be on guard to defend it. Any members’ absences from the floor – perhaps because of medical situations or other personal matters, perhaps because they were dealing with other legislative business while not expecting any votes to be called – would lower the vote target for an override to succeed.

In such a closely divided body, even a small change in the tally could have huge bearing on some of the most contentious issues in play – issues so contentious that the governor had felt compelled to wield his veto stamp.

Bench jockeying

There’s no shortage of such issues, to put it mildly. And from the viewpoint of social justice advocates, including the N.C. Council of Churches, the terrain heading into 2023 looks even more challenging than usual – with the state Supreme Court now firmly in the hands of ideological conservatives aligned with legislative Republicans. That’s due to Republican judicial candidates’ victories in the November elections, putting five of the high court’s seven seats in GOP hands.

The overarching questions now become: 1) How aggressively will the General Assembly’s freshly emboldened Republicans move to counteract rulings of the court’s previous Democratic majority that blocked key legislation as violating the state constitution? 2) How eager will the five Republican justices be to overturn recent rulings from which the three Republicans then in office had dissented – even if that means treating judicial precedents as worthless?

It will surprise no one if Cooper’s veto power is tested amid all this pushing and shoving. If it is, then every legislator’s vote will be critical — and so will be the timing of override attempts.

These forces seem bound to collide when the long-festering issue of photo identification for voters arises yet again, as it doubtless will.

The legislature’s Republican majority has tried repeatedly to impose a voter ID law, asserting that it would deter fraud – although the kinds of fraud that might be prevented are very rare.

Voting rights advocates and Democrats who also want to maximize the number of voters say that photo ID rules can make it harder for some people to vote and in any case are unnecessary.

Amendment games

After earlier attempts were blocked by the courts, the legislature in 2018 contrived to embed a voter ID requirement in the state constitution – although the statewide referendum securing that amendment failed to spell out what kinds of ID would qualify.

A bill enacted during that year’s post-election, lame duck session — over Cooper’s veto – set forth the ID rules. They were quickly challenged on the grounds that they would discriminate against certain groups of voters who disproportionately lack the necessary documents. Among those groups were African-Americans, against which discrimination based on race is a specific constitutional no-no.

As was inevitable, the challenge ended up before the Supreme Court, where Democrats still held a 4-3 majority. It could be said that the Democratic quartet went down fighting in their belief that rights pledged under the state constitution must be broadly construed.

On Dec.16 the court delivered its opinion upholding a trial court’s verdict. Justice Anita Earl’s findings fell like hammer blows. The evidence left no doubt, she wrote, that the ID law had been “motivated by a racially discriminatory purpose.”

“The trial court’s ruling does not mean that any voter ID law enacted in North Carolina would violate the equal protection guarantee,” Earls wrote, “only that the provisions enacted by this General Assembly in Senate Bill 824 were formulated with an impermissible intent to discriminate against African-American voters in violation of the North Carolina Constitution.”

According to the opinion, Republican legislators didn’t need to act out of blatant racial animus to engage in this kind of discrimination, but racial targeting even for political advantage was sufficient to show a constitutional breach. In terms of motive, it put at risk the votes of people who tend to favor Democrats, African Americans prominent among them. Even if none was actually kept from voting, discriminatory intent was sufficient to sink the law as written.

Legislature as boss?

The Supreme Court’s three Republicans at the time — including Justice Phil Berger Jr., son of the Senate’s top leader — filed a vigorous dissent written by Berger (see page 60 in the opinion). The gist was that the legislature should be presumed to have stayed within constitutional guardrails and thus was entitled to do what it did. The chances that it won’t take another whack at securing a voter ID law, especially given the Supreme Court’s lineup switch, are approximately zero.

Cooper could issue another veto, of course, with a Senate override in the cards. In the House, Democrats could apply the brakes if they stick together. But they’d also have to outmaneuver Speaker Tim Moore, who could call for an override vote whenever the count of members on the floor gave his Republican caucus the upper hand.

To see voter ID finally given a green light on the basis of that kind of slick maneuvering, undermining so many people’s right to fair access to the polls, would be a double travesty in a state whose very motto, “To Be Rather Than to Seem,” is a stern rebuke to hypocrisy.