Legislators and judges fight over election process

Democrats need to keep in mind the squabble's potential consequences

JACK BETTS    Charlotte Observer   28 February 2005

RALEIGH - A couple of years ago the N.C. Supreme Court ruled in a redistricting case that the General Assembly's new legislative districts were unconstitutional and had to be redone.

It wasn't a surprising finding. Legislative leaders Democrats for the most part had good reason to think it was on its way. The court all-Democrat just a few years back now had a 6-1 Republican majority and was noticeably more conservative.

What really annoyed legislators was being told by the court what criteria they ought to use in redrawing districts. Then-Sen. Fountain Odom was particularly incensed, pointing out that drawing districts traditionally is a political matter best left to a body created to resolve political questions the legislature, not the court. The court had strayed across the line that represents the doctrine of separation of powers, many legislators felt.

Some legislative leaders were talking quietly about impeachment proceedings aimed at taking the court down a notch or two. At least one former justice a Democrat made calls to urge lawmakers to abandon any further thought of such a ludicrous notion.

In time wiser heads prevailed. Little would be gained by such a constitutional confrontation, they knew. So they drew new districts that eventually went into effect districts that helped Democrats regain control in the House and widen their Senate lead.

Earlier this month the bile rose again when the Supreme Court ruled in favor of Republican Bill Fletcher and against Democrat June Atkinson, who led by about 8,500 votes in the unfinished race for superintendent of public instruction. The court in effect threw out the votes of 11,310 properly registered North Carolinians who cast provisional ballots out of their home precincts on Election Day. I don't think exclusion of those votes will change the outcome, but who knows?

The court also ruled that the General Assembly had no procedure in place to decide a contested raced for Council of State offices, such as the superintendent's post.

The court ruling came as a splash of gasoline on a smoldering ember in Democratic offices down on Jones Street, where legislators spent part of the 2001 and the 2003 legislative sessions approving statutes intended to allow provisional votes to be cast out of home precincts.

It particularly galled Democratic leaders such as Sen. Dan Clodfelter, D-Mecklenburg, and Rep. Deborah Ross, D-Wake, who knew that the N.C. Constitution says it's the legislature's job to resolve election conflicts for all Council of State races.

So now Democrats in the legislature are pushing through two bills that respond directly to the Supreme Court. One re-establishes the formal process legislators must use to resolve contested elections. Strangely, it was repealed in a 1971 bill that dealt with how to resolve tied elections for legislative seats. No one remembers why it was repealed; inadvertence seems the likely culprit.

The other bill lays out in plain language that provisional votes cast out of precinct on Election Day by properly registered voters must be counted for the races they're entitled to vote upon. That tracks the way this state counts provisional votes cast in federal elections. It is more in keeping with state policy allowing early voters to cast ballots at one-stop voting sites, most of them well out of precinct, before Election Day.

Some Republicans might have supported these bills. After all, a great many Republicans more than 3,200 statewide voted out of precinct last fall, and they don't like having their votes thrown out any more than do Democrats or independents. And Republicans, too, probably would prefer to follow the dictates of the Constitution and decide contested elections for Council of State races.

Except they're madder'n hell right now because Democrats want to make sure the new processes for deciding contested elections, and for counting provisional ballots, apply to 2004 races as well as to future races. The process bill also notes that the courts have no authority to decide Council of State races. Yet it's the Constitution that gives the authority to legislators, not the statute they're quarreling over. To Republicans, this is evidence that Democrats want to fix the result and negate the Supreme Court.

Sen. Hamilton Horton, R-Forsyth, took exception to the provisional voting bill, which includes a series of findings that he believes is aimed at embarrassing the Supreme Court.

"It is purely argumentative and has no place in legislation," Horton fumed. "It's about as improper, about as inappropriate, as wearing brogans to a white-tie wedding. You just don't do it."

The Democrats are wearing the brogans this year, and they're doing it because they can. They have the votes but they ought to realize that, right or wrong, this battle with the judiciary and squabble with Republicans will come back to haunt them one day.