White Papers and Policy Briefings

What you might not know about the Affordable Care Act but need to learn (Updated)
Jeanette Doran
Jul 23rd, 2012

The so-called Affordable Care Act (commonly referred to as Obamacare) created several new taxes, penalties and bureaucracies. This updated memo highlights a few of them.

Second Primaries in North Carolina: Low Turnout, High Costs, and Proposed Reform
Tyler Younts
Jul 18th, 2012

North Carolina is one of eight states that hold second primary (or runoff) elections when a first place candidate fails to reach a threshold percentage of the vote. Historically, turnout has been incredibly low in second primaries—as low as 2 to 5 percent. In addition, runoffs cost taxpayers millions of dollars—some estimate as much as $8 million— in election administration costs, not to mention the added expense to candidates and their supporters. This paper examines voter turnout and the high costs associated with second primaries in North Carolina. It concludes by suggesting that North Carolina should end runoffs or at least lower the minimum vote threshold to preclude the vast majority of runoffs.

Gubernatorial Authority to Enter Gaming Compact Before Legislative Authorization is Legally Suspect
Jeanette Doran
Jun 4th, 2012

Myriad statutory and constitutional questions surround a Gaming Compact between the State of North Carolina and the Eastern Band of Cherokee Indians which would grant the Cherokee exclusive rights to operate live table gaming west of Interstate 26. Most of the legal debate has surrounded the substance of the Gaming Compact. However, another issue warrants thoughtful consideration. That issue is whether the Governor possesses the authority to enter into a Gaming Compact allowing an activity that is prohibited by state law at the time of signing, that activity becoming legally authorized only after entering into the compact.

Granting Exclusive Rights to the Eastern Band of Cherokee
Jeanette Doran
May 24th, 2012

An agreement hammered out between Governor Beverly Perdue and the Eastern Band of Cherokee has prompted proposed legislation which purports to confer on the Cherokee exclusive rights to operate live table games west of Interstate 26 pursuant to the Gaming Compact between the State and the Cherokee. Federal law permits such gaming as long as it is not against the laws or the public policy of the state in which it is conducted. 25 U.S.C. § 2701. Currently, live gaming tables are prohibited and the casino at Cherokee is limited to video and virtual gaming. If passed, legislation like that proposed in Senate Bill 582 would expand the options available for gaming at Cherokee to include live games, gaming machines, raffles, and video games.

What Rights And Liberties Do Parents Have Over Their Children?
Jeanette Doran
Apr 30th, 2012

Recent news reports about teachers or other government agents interfering with the rights of parents to pack school lunches for their preschool and school aged children have prompted outrage across North Carolina and, indeed, the nation. That outrage has naturally led to debate about the role of schools and the responsibility of parents in the upbringing of children. Often overlooked in the debate has been the constitutional right of parents to, well, parent their children. This memorandum discusses the origins and scope of the frequently overlooked fundamental right of parents to control the rearing of their children and concludes with an admonition to government to respect that constitutional right before litigation becomes necessary to enforce it.

Ferry Tolls are Not Taxes
Jeanette Doran
Mar 29th, 2012

On February 29, 2012, Governor Beverly Perdue issued Executive Order 116 to “establish a moratorium on the collection of new tolls for the North Carolina ferry system.” Executive Order 116 does not itself describe the ferry tolls as “taxes”; however, in a press release issued on February 28, 2012, announcing Executive Order 116, the Governor repeatedly described the tolls as “ferry taxes” and “new taxes.” Although the legally significant document in the controversy surrounding the tolls is the Executive Order, the “tax” label cannot be ignored because misuse of the word “tax” risks diminishing its significance and misleading the public. Below is a short explanation of why the ferry tolls established at Session Law 2011-145, section 31.30 are not taxes as a matter of law.

Coverage of the 1868 North Carolina Constitutional Convention
Kimberly Arch
Feb 29th, 2012

The 1868 Constitutional Convention in North Carolina created monumental changes in our Constitution. Furthermore, the event itself was revolutionary. It was the first time African Americans openly and freely participated directly in their democracy. Specifically, there were thirteen African American delegates, all members of the Republican Party, elected to represent counties throughout the state. Out of the new Constitution came greater suffrage rights and universal public education. While the involvement of black delegates in this time period was an enormous step in terms of racial equality, there is very little documentation on these delegates and the role they played in forming the new Constitution. Noting this lack of information from the onset of my research led me to ask: exactly what information is available on the subject of the participating Black delegates and of race relations during the Convention? To learn more, click on the link above and read the research report.

What North Carolina’s Annexation Law Reforms mean to You!
Jeanette Doran
Feb 21st, 2012

North Carolina’s annexation laws prior to 2011 were viewed as among the most progressive in the nation; they were held up as a model by Harvard Law School and the U.S. Advisory Commission on Intergovernmental Relations. Below are a few commonly asked questions about the Annexation Reform Act and the straightforward answers property owners need to know.

Annexation Reforms and the Voting Rights Act
Jeanette Doran
Feb 21st, 2012

During the 2011 Legislative Session, the new majority of the North Carolina General Assembly ushered in a series of dramatic reforms to North Carolina’s municipal annexation laws. While keeping many of the existing procedures in place, the laws made substantive and procedural changes that are likely to slow the expansion of suburban and urban areas in North Carolina. While annexation is frequently viewed as a property rights issue, it also shapes municipal tax-rates, urban planning, and the racial and socio-economic composition of urban areas. As a result of the latter, municipal annexation is a government act closely monitored by the U.S. Department of Justice and federal courts under the Voting Rights Act. This memorandum explores some of the preclearance issues arising under the Voting Rights Act in light of the Annexation Reform Act of 2011.

Can Municipalities Sue the State over Annexation Reform?
Jeanette Doran
Feb 14th, 2012

Several municipal governments in North Carolina have sued the State to challenge annexation reforms enacted in 2011. That litigation has prompted some to ask, can municipalities sue the State? The short answer is “sometimes.” In the case of annexation reform challenges, however, the answer is “yes.” Below is a brief explanation of cities’ and towns’ standing to sue the State.

Common Questions and Straight Answers about Voter ID Bills
Jeanette Doran
Feb 13th, 2012

In the 2011 Legislative Session, both houses of the North Carolina Legislature passed HB 351, which would have required all North Carolinians to present a valid photo I.D. when voting. Soon thereafter, Governor Perdue vetoed the bill objecting on the basis that “those who are eligible to vote have a constitutionally guaranteed right to cast their ballots, and no one should put up obstacles to citizens exercising that right.” The legislature did not override Governor Perdue’s veto. The issue, however, is not completely quashed. Could the legislature constitutionally pass multiple local bills, which are not subject to the governor’s veto, which would require North Carolinians in select areas to show a photo I.D. when voting? Some county commissions have passed resolutions asking the General Assembly to do just that. Below is a discussion of the constitutional questions such a tactic raises.

Why Obamacare’s Individual Mandate is Unconstitutional
Jeanette Doran
Feb 10th, 2012

This report presents excerpts of the arguments set forth in the amicus brief NCICL joined to explain why Congress cannot force individuals to engage in interstate commerce.

The Constitutionality of the Enactment of Session Law 2012-1 (the
Jeanette Doran
Jan 30th, 2012

The first law passed by the General Assembly this year has spawned much debate. Session Law 2012-1, known as the Dues Check-off Bill while pending at the legislature, ends the practice of using the State to collect dues for the North Carolina Association of Educators (“NCAE”). The State had been collecting dues for the NCAE directly from NCAE members’ paychecks. Critics have condemned the General Assembly for enacting Session Law 2012 during what they label a “Midnight Session.” The NCAE has taken their criticism a step further. The NCAE sued. Hours after their lawsuit was filed and following an ex parte hearing at which the State and General Assembly had no lawyers, a Wake County judge issued a temporary restraining order postponing the effective date of the law until a final determination is made as to its constitutionality. The NCAE’s lawsuit has two main components. The first is a challenge to the procedure by which the legislation was adopted. The second is a challenge to the intent and effect of the legislation. This memorandum addresses only the attack on the enactment process. Below is an explanation of why the General Assembly’s conduct, while perhaps not a model of good government, was constitutional.

Amending the State Constitution
Jeanette Doran
Jan 25th, 2012

The North Carolina Constitution provides two ways in which it can be amended: by convention of the people or by legislative initiative. Historically, North Carolina’s constitutional amendments have come by legislative initiative, i.e., a proposal from the General Assembly. The General Assembly prescribes the time and manner the proposed amendment is submitted to voters by setting out such particulars in the session law adopting the proposed amendment. The General Assembly picks the date for the vote on the amendment.

Marriage Amendment
Jeanette Doran
Jan 25th, 2012

This coming May, North Carolina voters will once again have the opportunity to amend North Carolina’s Constitution. The proposed amendment would add a new section to article 14 and define marriage as between one man and one woman. 2011 N.C. Sess. Laws 409. It would also declare marriage as the only domestic legal union recognized in North Carolina – likely barring both same-sex domestic partnerships and civil unions from achieving legal recognition. Legislative debate on the amendment received widespread media attention. Proponents and opponents of the amendment are rallying their troops, and our airwaves are likely to be saturated with campaign messages this spring. But, the language of the amendment itself may be elusive to many North Carolina voters. In fact, the proposed amendment will not even be on the ballot in full, nor does it have to be. This article will look at existing standards and why the ballot language proposed meets minimal due process protections.

Bill v. Resolution: What the People Need to Know
Jeanette Doran
Jan 9th, 2012

Bills and resolutions differ in terms of both substance and procedure. Below is a table highlighting the major differences between a “bill” and a “resolution”.

The State Treasurer’s Life Science Accelerator
Jeanette Doran
Dec 19th, 2011

The following memorandum discusses the constitutional and statutory limitations on investment of state retirement funds. On November 3, 2011, State Treasurer Janet Cowell announced her decision to fund a new Life Sciences Accelerator and make investments in early-stage pharmaceutical, biotechnology, and medical device companies. The Accelerator has dual purposes of: (1) attaining “a competitive risk-adjusted rate of return” and (2) “support[ing] the economic well-being of the state of North Carolina.” While the State Treasurer may invest retirement funds as authorized by law, Article V, section 6 of the North Carolina Constitution limits the use of the Teachers’, State Employees’, and Local Governmental Employees’ Retirement Funds for any purpose other than retirement system benefits.

Case Briefing: Arizona Free Enterprise Club’s Freedom Club PAC, et al., v. Bennett, et al.,
Jeanette Doran
Jun 30th, 2011

This case briefing by NCICL Senior Staff Attorney Jeanette Doran discusses the legal issues raised in Arizona Free Enterprise Club's Freedom Club PAC, et al., v. Bennett, et al. Doran answers what was at issue, and what it means for North Carolina.

Jeanette Doran
Mar 23rd, 2011

The William S. Lee Act (better known as the “Bill Lee Act”) was created in 1996 in order to keep up with similar economic incentive schemes employed by other states since the mid- 1980s. The Bill Lee Act credits generally continued until January 1, 2008. Only those credits for eligible major industries and taxpayers in development zones continued through January 1, 2010. Read more...

Jeanette Doran
Mar 22nd, 2011

This whitepaper is a brief legal analysis of the unconstitutionality of North Carolina’s film incentives. In short, this memorandum explains the statutory structure for funding payments to film production companies as part of the State’s film incentives scheme. The North Carolina Films Incentives program is riddled with multiple constitutional problems. The memorandum focuses on only one--that money for such payments has not been appropriated as required by the North Carolina Constitution, article V, section 7. Read more...