A loophole in the latest HB2 compromise

The Observer editorial board

The gulf between opponents and supporters of HB2 has proven too difficult to navigate thus far.
The gulf between opponents and supporters of HB2 has proven too difficult to navigate thus far. Charlotte Observer

We’ve been struggling with a nagging concern this week about the latest HB2 repeal bill.

It’s kind of a far-fetched concern – so far-fetched, maybe, that we’re a bit embarrassed to even bring it up.

But as we’ve learned these past few years, Republicans have a way of making the implausible plausible.

So here goes: The bill, filed by Democratic Sen. Joel Ford of Mecklenburg, would repeal HB2 immediately but introduce a “cooling off” period before a city such as Charlotte could pass a measure regulating public access to bathrooms, showers and changing facilities.

Charlotte, of course, passed an ordinance last year that did just that – allowing transgender individuals to choose the bathroom with which they identified.

Ford’s cooling off period, which was similar to a proposal Senate President Pro Tem Phil Berger made in December, would expire (read carefully here) “30 days following the adjournment in 2017 of the 2017 General Assembly for more than 30 days jointly, as provided under Section 20 of Article II of the North Carolina Constitution.”

In plainer language, that means cities would be allowed to pass a bathroom ordinance 30 days after the General Assembly adjourns.

But what if Republicans in the House and Senate decided they didn’t want to adjourn? According to the General Assembly web site, there is “no statutory or constitutional requirement for when Session must end.” Could the “cooling off” period be strung out for a very long while, essentially keeping HB2 in place until Republicans figured out what to do next?

We know. Far-fetched. But just in case, we called former longtime legislative attorney Gerry Cohen, who probably knows the N.C. Constitution as well as anyone in the state.

His conclusion: It could happen.

What Republicans could do, Cohen speculated, was to continually go back into session 29 days or sooner from the day the last session adjourned, thereby avoiding the end of Ford’s cooling off period. The limit to that gambit, says Cohen, is an N.C. statute that essentially requires sessions to be no longer than two years. So Republicans could keep cities like Charlotte on ice until Dec. 31, 2018.

“It’s never been done before,” Cohen said. But: “I’ve given up saying I could never imagine something.”

Do we think Republican leaders would attempt this particular shenanigan? Probably not. But the fact many HB2 opponents wouldn’t put it past Republicans illustrates how impassable the terrain is between the opposing sides of the law.

Republicans believe that Charlotte officials will pass a transgender measure as soon as they possibly can. Democrats believe Republicans will do whatever it takes to stop them from doing so. Both sides may be right, because ultimately, they each want something the other won’t accept.

That’s why Republicans have continuously moved the goalposts on compromise since Charlotte symbolically repealed its ordinance. And it’s why, despite an imminent deadline on HB2 repeal from the NCAA, a resolution still seems very far away.