The legislature has already had a successful session, overriding several of Gov. Perdue’s vetoes and approving redistricting maps for both U.S. Congress and the state legislature. On September 12, the legislature will meet again in a special session lasting an estimated three days to discuss potential constitutional amendments. These amendments require a three-fifths majority in both chambers to be placed on the 2012 ballot for voter approval.
Legislative leadership has stressed a need to limit the amount of constitutional amendments; thus it is likely only a few amendments will make it through the session. This article summarizes issues most likely to come up for debate in next week’s session.
Defense of Marriage
North Carolina is the only remaining Southern state without a Defense of Marriage amendment (DOMA) in its state constitution. Conservative legislators have repeatedly proposed DOMA legislation, yet it has continuously failed to pass.
Current North Carolina marriage laws state that a “valid and sufficient marriage is created by the consent of a male and female person who may lawfully marry to take each other as husband and wife.” Conversely, state law already invalidates marriage between persons of the same gender, whether created by common law, contracted, or performed outside of North Carolina.
However, in a December 2010 Civitas Institute poll, 65 percent of North Carolinians stated support for a constitutional amendment defining marriage as between one man and one woman. Furthermore, an August 2011 Civitas Institute poll focusing on African American voters found 62 percent stating they would vote for an amendment on the 2012 ballot defining marriage between one man and one woman. It also found that 59 percent said they would be more likely to vote for a legislator who voted to authorize a referendum defining marriage as between one man and one woman. This past legislative session, HB 777 and SB 106 were introduced, giving the legislature an opportunity to put DOMA on the 2012 ballot should it gain enough support in the special session.
The Fifth Amendment of the U.S. Constitution limits the government taking of private property for a public use. Nonetheless, in 2005 the U.S Supreme Court held in Kelo v. City of New London that the Constitution allows government to seize private property and transfer it to another private party under the guise of economic development. For many this was a wakeup call to the eminent domain issue. Several states, including our Georgia and South Carolina neighbors, have passed constitutional amendments to protect private citizens from government “development” abuse.
During the 2011 regular session, HB 8 was offered. This bill would prohibit private property takings except for a valid public use. It passed the House in its third reading 98-18, indicating a high likelihood of passage should it be considered in the early fall session. Legislators, so far, have provided inconsistent answers when questioned as to when it will be considered – in September or in the spring short session
Legislation was offered during this session (HB 61) to limit the House speaker and Senate leader from serving more than two regular sessions of the General Assembly. The intent is to reduce the amount of controlled power by a select few legislators. While it passed the House 72-46, it remains in the Senate for consideration. A Democratic attempt to convert the legislation to a statute instead of an amendment failed. The move to a statute would have made it easier to change the provision in the future.
Legislative Appointments to State Board of Education
Another topic that may come up during the September session is a bill giving lawmakers appointment powers to the state board of education. House Speaker Thom Tillis and Senate Rules Chairman Tom Apodaca both alluded to this legislation as being a possible constitutional amendment contender. The amendment would provide a more balanced structure to the state board of education and take the board out of the Governor’s hands. Whether this amendment is considered may come down to the amount of time remaining in the very quick session.
Honorable Mentions but Unlikely Considered
A proposed constitutional amendment, SB 67, would require any expansion of exemptions on government meetings and records to be approved by three-fifths majority of both legislative chambers. The bill was met with disapproval by several government interest groups with concerns of going too far and that the law already adequately addresses open access to government records. Proponents, however, noted there can never be too much sunshine on government and that North Carolinians are entitled to inspect government records as a fundamental democratic right. This bill is unlikely to come up in the special session as it did not move out of the Senate Judiciary Committee.
Tackling the intrusive Patient Protection and Affordable Care Act (“Obamacare”) was a high priority of the new incoming legislative leadership. The legislature quickly offered HB 2, Protect Health Care Freedom Act, where it passed both chambers. Unfortunately, Gov. Bev Perdue vetoed the measure and legislators were unable to successfully override the veto. Instead, legislators could consider offering a healthcare constitutional amendment, prohibiting future state legislatures from enacting an individual mandate essentially dismantling the main provision of Obamacare. Such a measure would provide support to the court battle inevitably headed to the U.S. Supreme Court. However, because HB 2 failed to reach the necessary veto override votes, any similar constitutional amendment is likely to end with the same fate.