An HB 2 referendum? For Republicans, it might be the best of 3 bad options

An HB 2 protester Monday at the State House in Raleigh.
An HB 2 protester Monday at the State House in Raleigh. AP

This was probably inevitable.

N.C. Senate Rules Chairman Tom Apodaca told an Asheville TV station Tuesday he wants HB 2 to be put in front of N.C. voters. Apodoca, one of the most powerful Republicans in Raleigh, said that staff attorneys are looking into a constitutional referendum that would make the law permanent.

It’s a bad idea, for one simple reason: Discrimination of minorities should never be left up to a majority vote. HB 2 discriminates. It’s wrong.

It’s also bad for North Carolina’s economic future if voters affirm our growing reputation as a backward state.

But as far as political escapes go, it might not be bad at all.

Right now, N.C. Republicans are reeling. The backlash to HB 2 is deep and intense. Business recruiters say phone lines are quiet. There is lasting damage being done to the state.

It could get worse. If the NBA follows through on a threat to pull the 2017 All-Star Game in Charlotte, the question for other companies and events won’t be “are you pulling out of North Carolina?” It will be “why aren’t you pulling out?”

The ways out of this mess are limited. Political sleight-of-hand won’t work, as Gov. Pat McCrory already demonstrated with an executive order that did nothing to change momentum because it did nothing to change HB 2.

So short of a full repeal, here are the best bad choices Republicans have:

▪ Follow through on McCrory’s request to eliminate an HB 2 provision that makes it harder to sue for workplace discrimination.

Result: HB 2, with all its discrimination, will otherwise remain intact. The backlash won’t weaken.

▪ Introduce new legislation that repeals all of HB 2 but the bathrooms provision. This is what many Republicans wanted HB 2 to be from the start – a simple bill that didn’t allow Charlotte or other cities to give transgender individuals the choice of which bathroom to use. Yes, that’s still discrimination, but it was a political winner for Republicans, including the governor. And had HB 2 done only that instead of also removing protections for gays and lesbians, the state likely would have faced less backlash than it is today. PayPal might even still be in Charlotte.

Backing off of some of HB 2 would be an echo of the approach Indiana took last year when a religious freedom law brought a similar storm of backlash. Then, Indiana lawmakers passed a bill providing some protections for LGBT customers, employees and tenants. Although some companies still protested the religious freedom bill that remained, the backlash died down.

Result: It’s probably too late for N.C. lawmakers to focus just on bathrooms, at least if the goal is stopping the business backlash. Although poll numbers in North Carolina show that fearmongering over bathrooms has had an impact, the country has a whole has moved quickly toward acceptance of transgender people. Think of it this way: Will the NBA say all is well with the 2017 All-Star Game if LGBT rights in North Carolina are only LGB rights? That would be difficult.

▪ Apodaca’s referendum. Let’s play this out:

Putting HB 2 to a vote immediately releases some of the business pressure on North Carolina. Yes, LGBT advocates will rightfully say that discrimination is wrong no matter who sanctions it. But having that referendum would give some businesses and performers just enough of a reason to wait and see on boycotts.

A referendum also shifts the focus of the HB 2 battle from lawmakers and the governor to voters. That’s no small thing to Republicans, especially McCrory, who otherwise would face a hot summer of campaigning wearing the heavy jacket of HB 2.

And if HB 2 is affirmed by voters? LGBT advocates would have to ratchet up the outrage about North Carolina all over again. It can be done, certainly, but one of the factors behind this recent, powerful wave of boycotts is that companies and performers have felt they could change lawmakers’ minds. A referendum is more permanent. It takes at least a little wind out of boycotting. Just ask Houston.

One big caveat: We don’t know what a referendum would ask voters. Lawmakers could try for a full affirmation of HB 2. They more likely would craft something that deals solely with bathrooms and has a better chance of passing.

Would North Carolina still be damaged, regardless of the referendum’s content? Of course. A new, ugly book on our state is being written because of HB 2. Not long ago, we were seen as vibrant, the kind of place young workers and innovative companies wanted to check out. Now, our reputation will cause thoughtful bosses to look elsewhere, because who wants to bring their workers to a backward state?

North Carolina gains little if voters affirm that reputation, but a referendum would probably solve the most immediate political problems facing N.C. Republicans. And politics, sadly, is what has driven HB 2 all along.

North Carolina repealed HB2 in 2017 but left intact some of its provisions. But with Charlotte’s reputation tainted, the city is still paying to market itself to visitors.

Peter St. Onge

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