Like a Runaway Train …

The legislative powers-that-be fight against equity.

State Reps. Justin Jones, Gloria Johnson, and Justin Pearson
The “Tennessee Three:” State Reps. Justin Jones, Gloria Johnson, and Justin Pearson led gun reform protests from the House floor following the mass shooting in Nashville.
Legislative News by Nelda Holder –

It is Easter morning as I type this, with sunshine pouring through my office window and a wild celebration of rebirth happening amongst the green things in my yard … translated into songs and prayers in the rituals of world religions.

I appreciate this beauty and celebration, but a portion of my heart is feeling weary.

I watched live television on Friday, April 7, 2023, as three duly elected officials serving in the Tennessee House of Representatives—Reps. Gloria Johnson, Justin Jones, and Justin Pearson— stood in chambers to hear the verdict of a vote to expel them from the premises and from their elected duties. You know the outcome. A large chunk of the world knows the outcome. Two young Black men were stripped of their status as duly elected legislators, ostensibly for their participation in a protest supporting gun control. One older white woman who joined them in the same protest was not.

It’s pretty much that simple—or, as Johnson herself made crystal clear: “It might have to do with the color of our skin.” [See Editor’s note at the end of this article.]

My weariness has to do with the number of years I have watched this country’s glacial pace towards equality. And I, like Johnson, do not have black skin. So I use the term “weariness” with the deepest sense of irony and regret and embarrassment that I can own, realizing my personal experience offers the merest whiff of understanding.

That, however, does not keep me from being angry, sad, disgusted, and … very alert.

I am alert because I believe in justice, and I see how power corrupts, and my presence in this newspaper is because I have the job of reporting on the legislature in this state—North Carolina. And you know what? Tennessee was once a part of a much larger North Carolina, separated in 1789 when this state ceded its western lands to the brand-spanking-new federal government. (History Refresher: Tennessee became part of the Southwest Territory, and then was admitted to the Union in 1796 as the 17th state.)

So it was literally my first thought, watching the news on Good Friday, that the Republican-dominated NC General Assembly was now likely to exercise its own carte blanche. This was because two days before, Democratic Rep. Tricia Cotham of Mecklenburg County was the big legislative news of the day/week/session as she became Republican Rep. Tricia Cotham of Mecklenburg County—with Mecklenburg County voters having nothing they can do about it.

Shifting the force field

The significance of Cotham’s switch was the disturbance in a delicate balance of power that had been in existence: the veto power of the governor versus the legislature’s power to overrule a veto. Cotham became the 72nd Republican among the House’s 120 members, and 72 is the magic number needed to override a gubernatorial veto in a full House vote.

The Senate was already in override position. Indeed, the first full veto override in the legislature since 2018 had taken place March 29 when—with three Democrats absent (one of those being Cotham)—the House upheld legislation (SB 41)that does away with a longstanding requirement for permit and background checks for handgun purchase. There was no debate allowed.

The twisted irony of that timing is that—back to Tennessee—the expulsion votes for Jones, Johnson, and Pearson were premised on a public protest asking for gun control legislation after the deaths of three students and three school employees at a Nashville school. Johnson said, of the protest crowd she had joined, “They want gun sense legislation in Tennessee.”

But in North Carolina, the legislature had just jettisoned one such piece of gun sense and public security. And they did that in a week that brought other questionable changes.

Power for the sake of power?

On the March 28, the House passed HB 10, which holds the title and the mandate to Require Sheriffs to Cooperate with ICE. The bill would require sheriff’s offices to check immigration status of anyone arrested about whom there is a question of citizenship, and potentially hold a suspect in jail for 48 hours if they suspect the person is in the country illegally. (Cotham, not yet claiming a Republican mantle, was one of three Democrats voting for the bill.) The bill is now in line for action in the Senate. Cooper vetoed similar legislation last year, but another veto this year may meet with an override.

Sheriffs are not in agreement over the legislation. Some campaigned for office on the premise of not cooperating with ICE. Voters who supported that position will have no say in a legislative usurpation of decision making.

And the March 29, SB 41 (see above) saw a veto override to allow concealed carry of firearms on certain school property, as well as repealing pistol purchase permits.

On the local level, there could be negative reaction in some quarters to SB 27, called the Soil and Water/Partisan Election Option. This would—if enacted—allow any soil and water district board of supervisors to move to partisan elections by passing a resolution to that effect. Normally a quiet local entity that goes about its nonpartisan business, your local Soil and Water board may soon have other things on its mind than soil and water.

And here’s the biggie

Also in the lineup is SB 512, Greater Accountability for Boards/Commissions, with none other than Senate President Pro Tem Phil Berger (R) as one of three primary sponsors. The bill would alter appointments for several entities by (in most cases) reducing gubernatorial appointments and beefing up General Assembly or Council of State appointments. For example, it would replace the current appointment of State Board of Education members by the governor with an election process.

This goes along with other bills in the current session hopper that would limit the governor’s ability to appoint or replace members of various entities, including the Council of State and state courts, as well as to curb the governor’s emergency powers.

Because there’s a small problem: such a change presumably runs afoul of the Separation of Powers clause of the state’s constitution—a provision that lies at the heart of our constitutional government. And none other than the very conservative John Locke Foundation espouses:

“The North Carolina State Constitution unequivocally declares, ‘The legislative, executive and supreme judicial powers shall be forever separate and distinct from each other.’” (“Restoring the Separation of Powers in North Carolina,” January 26, 2023, by Jon Guze, Senior Fellow, Legal Studies).

Ah, but therein lies a twisted tale, lacking the verbal clarity of John V. Orth’s “Separation of Powers: An Old Doctrine Triggers a New Crisis” (still available online through the NC Center for Public Policy Research closed in 2022). Read both arguments and get yourself prepared for the upcoming fireworks—and watch for more lawsuits.

Educate yourself

If you’ve lived in this state for a while, or maybe you even moved here because of our former reputation, you likely know the status of education in North Carolina had its moment—its years in the sun. From the founding of the nation’s first public university (UNC-Chapel Hill) in 1789, to the provision of free education guaranteed in the State Constitution of 1868 and passage of a general school tax in 1869, to Gov. Charles B. Aycock’s revolving fund for building schools (more than 3,000 school houses from 1900-1910), to Gov. Dan Moore’s “blueprint for education,” to Gov. James B. Hunt’s 1984 North Carolina Commission on Education for Economic Growth, to the 1989 School Improvement and Accountability Act, support and aspiration for public education has been a hallmark of our public identity.

It is with a certain degree of concern, then, that we watch our current General Assembly on a path already nascent in reassigning assets and financial support. A system that was formerly a known entity of quality and pride is being beggared insofar as school equality is concerned by fighting the financial concept and settlement of the Leandro case—which we have written about frequently (a full overview of this hallmark case is available at EdNC). Leandro’s provisions for “the right to a sound basic education” continue to be fought in court by the Republican leadership of the General Assembly. (We have no figures for the long-term costs of this legal battle.)

Yet while the legislative powers-that-be fight against the equity funding that was ordered in Leandro, there is new legislation to expand the private school voucher program yet again. This time, under SB 406 (“Choose Your School, Choose Your Future”), the aim is to greatly expand eligibility along with an extra $1.3 billion in funding over the next few years. A report by Raleigh’s WRAL news notes that the NC Association of Educators, as well as Democrats including the governor, have opposed the program and tried to phase it out, but the Republican majority is pushing for “school choice” with funding following the child.

When the legislators return to business at the end of their spring break, freshly fortified with a veto-proof member count, the budget will be the primary order of business. But it seems there will be a large amount of legislative intrigue around the edges.

[Editor’s update: As of April 12, Reps. Jones and Pearson were returned to their seats by their county commissions, but each will face a “special election” to hold his seat to the end of this term.]


Nelda Holder, photo by Tim Barnwell
Nelda Holder
Photo: Tim Barnwell

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