When the Sun Breaks Through the Legislative Clouds

If the Republicans regain supermajority status there will be no real restraint available to the governor.

Nelda Holder, photo by Tim Barnwell
Nelda Holder
Photo: Tim Barnwell
Legislative News by Nelda Holder –

I had finished my column for this month when a news bulletin came up on my computer screen.

It was from the office of the state’s attorney general, Josh Stein, announcing that a decision had been reached in the North Carolina Supreme Court regarding the ongoing Leandro state education case.

I’ve written about Leandro for years in this column. It has been under debate for many more years than that—since it was filed in 1994. Broken down simply, the state was ordered (TWICE—in 1997 and 2004) in Leandro v. State of North Carolina to provide a sound, equitable education to all our children.

With the state still falling short, a comprehensive plan to comply with this order was released by an independent educational consultant (WestEd) at the end of 2019. But despite a judge’s order in 2021 to implement the remedial plan, an appeal followed that snarled the court’s intention yet again. Ultimately, in March of this year, the NC Supreme Court agreed to hear arguments in the case for a fourth time, resulting in yesterday’s ruling that the state has indeed violated students’ rights and—key issue this time around—can be compelled by the court to issue funds to remedy this constitutional violation.

It’s a big deal, folks. As Associate Justice Robin Hudson wrote in the majority opinion, our legislators repeatedly refused to ensure “opportunity for a sound basic education” for every child. Instead, Republic legislative leaders had been willing to go back to court to argue that the court itself could not usurp their constitutional powers to appropriate funds. They lost.

Stay tuned for what’s next, but it would seem there’s a good chance that long-delayed principle of equity in education has finally been set in motion in this state.

What’s up, Governor?

While many state legislators have been busy running for reelection or otherwise preoccupied and out of session, Gov. Roy Cooper has remained active. Two particularly meaningful issues have been on his mind and on his desk.

One has been the result of President Joe Biden’s pardon in October of individuals who had been charged at the federal level for possession of small amounts of marijuana. The president then called on governors to follow suit. Currently, adult use of marijuana for recreational purposes is legal in 19 states and the District of Columbia. North Carolina is not on that list. Neither is the state included among the medical marijuana providers among the 50 states, although both these negatives fail to apply to the Qualla Boundary in the Carolina mountains—Cherokee territory where the tribal council decriminalized possession of up to an ounce last May.

The North Carolina General Assembly has continued to frown on efforts to legalize medical or recreational use of the plant, despite calls by both the attorney general and the governor to decriminalize simple possession (1.5 ounces or less) after Biden’s order.

Cooper has now taken the step of asking state lawyers “to determine if there is action we can and should take” regarding state pardons along the line of Biden’s federal program.

Among other recent actions, Cooper has:

  • Signed an executive order to expand the state’s clean energy economy by supporting market-driven transition to zero-emission trucks and buses
  • Announced over $655 million distributed to more than 4,200 child care centers through Child Care Stabilization Grants
  • Established by executive order the bipartisan Commission on the Future of Public Universities in North Carolina

Regarding the latter, two well-seasoned leaders will hold the reins: former UNC System presidents Margaret Spellings and Tom Ross. The goal, according to Cooper, is to “preserve the undisputed excellence of our higher education system (and) to advise on how we adjust the university governance system to ensure diversity of race, geography, gender and political thought.” A report from this commission is due within eight months.

“It is so important for us to keep our diversity, not just racial diversity, but gender, geography, ethnicity, and political thought,” Cooper noted. “It’s clearly important that the leadership reflects that. Right now, it does not.”

Meanwhile, Time Stands Still

By the time you read this, we’ll know a lot more than I do while writing it about the shape—or the reshaping—of the nation as a result of 2022 elections.

So let’s just take a final look at the lay of the land pre-election—and most specifically in this state of North Carolina—as a touchstone to return to in measuring how well we will have used our voting franchise at this vitally important time in our state. A little time capsule, as it were.

Gubernatorial Power

No, we won’t have a new governor as a result of this election. But we may have a differently flavored Legislature. And one thing that potential change might decidedly affect is the current Democratic governor’s use of veto power over legislation passed by a Republican-majority. This could spill over into each of the following areas of government, of course, and much more.

The stage that is set: a Cooper veto can be overruled by three-fifths majorities in the NC House and Senate. The veto power was only given to the state’s governor in 1996 (NC being the last state to provide that power to its leader). Cooper has wielded that power with alacrity since Republicans lost their supermajority power in 2018.

You can find the NC Veto History at a “quiet” little online resource: the North Carolina Legislative Library—where you can also research statutes, session laws, votes on bills, and the North Carolina Constitution. There is a sweet little column called “Library News” to browse through, and they’ll help you find things you’re looking for if you send them an email: [email protected].

But back to those vetoes. You’ll find a long list of overrides that ends in 2019, after which things get a lot more confrontational with failures to override or bills sent back to committee. Subjects include charter school changes, cooperation with ICE detainers, revisions to outdoor advertising laws, regulatory reform, plus a long list of pandemic-related bills from 2020 through 2022.

If the Republicans regain supermajority status, like it or not, there will be no real restraint available to the governor, who could still veto a bill but then, basically only wait to see the veto overridden in the Statehouse.

Judicial Temperament

People who follow the power of the state judiciary are holding their collective breath as I type this. Statewide openings for eight-year terms as justices on the state-level will include partisan elections for two seats on the NC Supreme Court and four seats on the NC Court of Appeals.

Nonpartisan elections for the state courts were—in this writer’s opinion—a breath of fresh and invigorating judicial-fairness achievement by the Democratic majority in the Statehouse between 1998 and 2002. (Stop and think about it: Do you really want judges who, at least for purposes of election, pay attention to partisan factors instead of strictly focusing on the law?) But the partisanship was returned from exile in district and superior courts in 2017, and appellate courts in 2018, by means of a Republican-majority General Assembly.

In the 2022 election, the NC Supreme Court’s current Democrats’ 4-3 majority will stand or fall. And with that, decisions regarding gerrymandering and K-12 education funding, abortion, guns, and much more will be affected.

On the 15-member NC Court of Appeals, four seats are in competition for eight-year terms, with three current Appeals judges running to hold additional terms. Currently Democrats hold one of those three seats, Republicans hold two.

Did you know? Judicial candidates in North Carolina must be:

  •   at least 21 years old
  •   licensed attorneys
  •   registered to vote
  •   residents of the state
  •   under the age of 72

Personal Freedom

Yes—“personal freedom.” Code words here for a woman’s right to make choices for herself regarding the health care that only females must physically address … for the option of terminating a pregnancy for reasons personal to that female alone—adult or child.

The 2022 U.S. Supreme Court’s decision against the longstanding Roe v. Wade (the legal determination recognizing a woman’s right to privacy in choosing pregnancy abortion as part of her healthcare), ripped the guarantee of a personal freedom away from every woman in this country. State laws—which vary radically—may still provide some autonomy for women, but there is now no national recognition of a woman’s right to personal autonomy regarding her health care.

And now the November 8 elections will play a huge role in determining whether new national legislation will restore this privacy right. In North Carolina, state law at the time of the Supreme Court’s action allowed medical abortion procedures until “fetal viability” (typically 24-26 weeks of pregnancy). That law remains current, but changes in the Legislature due to election results carry the potential to support or eliminate this status. Thus the November voting results are of vital importance to women’s rights in this and every state.

 

 


Nelda Holder is the author of The Thirteenth Juror – Ferguson: A Personal Look at the Grand Jury Transcripts.