One of the six constitutional amendments that will be on the ballot this November concerns who gets to appoint Justices and judges in the event of a vacancy between elections. Currently that rests with the Executive Branch, and our Governor. Since the Legislature makes the laws, many of which have been challenged in court recently, it is important that the judges ruling on those laws remain independent and not conflicted based on who appointed them.

The Judicial Vacancy Sunshine Amendment changes all of that, and allows the legislature to control the selection and appointment of judges. While the description you may see on the ballot mentions a nonpartisan merit based system free of political influence, it is anything but. There is no explanation of how the merit commission will be formed, and even so, it’s purpose is simply to evaluate all of the nominees that are presented for judicial vacancies. They will then forward their report on each nominee to the General Assembly, who will pick any two they choose to pass on to the Governor for final selection. Hardly a nonpartisan process free of political influence.

But that’s not the part that’s sneaky (which is scary enough). The hidden power which has been underreported in much of the news is how they have used the bill language to circumvent the Governor’s veto for unrelated legislation. Stay with us here.

Article II of the NC Constitution deals with the Legislative Branch. Section 22 is called “Actions on Bills.” Subsection (1) states, “Except as provided by subsections (2) through (6) of this section, all bills shall be read three times in each house and shall be signed by the presiding officer of each house before being presented to the Governor.” Essentially, that means unless a bill falls under one of the remaining subsections, the bill is subject to gubernatorial veto.

Subsections 2-6 deal with things we’re familiar with – joint resolutions, local bills, amendments, etc. Subsection (5), specifically, deals with “Other Exceptions.” Currently, under Subsection (5), there are four types of bills listed that fall into that category, dealing with appointments and with redistricting. They are: when the GA makes an appointment to public office, when the GA revises the senate districts and apportionment of senators, when the GA revises the house districts and apportionment of representatives, and when the GA revises the US Congressional districts. The legislature then added recommending a nominee for a judicial vacancy or electing a judicial vacancy. Which seems simple and seems to make sense.

But here’s the rub. Those existing four types of bills listed – appointments to public office and redistricting – each contain limiting language. They each limit the bills that are not subject to gubernatorial veto to bills containing those matters “and containing no other matter.” For example, the first one reads: “In which the General Assembly makes an appointment or appointments to public office and which contains no other matter,” (emphasis ours). Those last two additions to this subsection about the nominations for judicial vacancies and appointments to judicial vacancies DO NOT contain that limiting language.

And that’s how they can literally include anything else in there and not have it subject to a gubernatorial veto. With less than 100 days to the 2018 mid-term elections and a strong possibility that the NCGOP will lose their supermajority status and veto override power, this seems like a safeguard for getting around that very real possibility.