September 16, 2018. On August 24, 2018, the N.C. legislature reconvened to change two of the proposed constitutional amendments on the November ballot. This blogpost concerns one of the two, House Bill 913  (Bipartisan Ethics and Elections Enforcement),  discussed in an earlier blogpost.   H 913 proposed to amend the Constitution to change the method for appointing members of the State Ethics and Elections Board, but also gave the legislature power to appoint the members of all other state boards and commissions.

Governor Cooper challenged H 913  and another proposed constitutional amendment concerning the method for filling  judicial vacancies (Senate Bill 814). On August 22, 2018, a three-judge panel issued an order in the Governor’s favor and barred the printing of ballots showing the two  amendments as described in the bills. Rather than appeal the court’s order, the legislature reconvened for a brief special session and adopted revised versions of both amendments.

The legislature revised the commission appointment bill (now Session Law 2018-133)  to eliminate provisions affecting appointments to all state boards and commissions. As a result, the constitutional amendment that will appear on the November ballot will not affect appointments to commissions like the Environmental Management Commission  with responsibility for environmental standards. Consistent with the N.C. Supreme Court decision in McCrory v. Berger, the Governor will continue to appoint a majority of those commission members. The proposed  amendment now only deals with appointments to the State Board of Ethics and Elections Enforcement.

A note on what remains of the constitutional amendment:  The amendment continues an ongoing legal battle between the Governor and the legislature over appointments to the state Ethics and Elections Enforcement Board.  Until 2017, an  Ethics Board enforced state ethics laws and a separate Elections Commission provided election oversight. The Governor appointed all of the members of the Ethics Board and a majority of the members of the Elections Commission. In 2017, the legislature made a first attempt to limit the Governor’s authority  by adopting legislation combining the two into a single board and limiting the Governor’s appointment authority by requiring appointments to be made from a list of nominees identified by legislators.  Governor Cooper sued to challenge those changes as unconstitutional.  The proposed constitutional amendment would circumvent legal challenges by establishing the appointment process for the Ethics and Election Enforcement Board in the Constitution. The proposed amendment reduces the size of the combined board from nine to eight.  All of the members would be appointed by legislative leaders, equally divided between the majority and minority parties.