Friday, June 30, 2017

Another Case of Lunacy: The NC House Considers Impeaching the Secretary of State

Another Case of Lunacy:  The NC House Considers Impeaching the Secretary of State

The North Carolina House of Representatives is about to embarrass our state[1].  Republican Representative Chris Millis of Hampstead has introduced a resolution[2] to institute impeachment proceedings against Secretary of State Elaine Marshall.  The charge?  The resolution alleges that the Secretary granted notary power “to several hundred individuals as notaries public who did not "[r]eside legally in the United States" as required by G.S. 10B-5 and who were not "qualified aliens" pursuant to 8 U.S.C. § 1621.” While the charge is ridiculous, the North Carolina General Assembly has a proven record of doing ridiculous things.

Even if Secretary Marshall’s office authorized a few people to be notaries who weren’t qualified, it’s hard to see how this would constitute an impeachable offense.  Moreover, there are only a few anecdotes floating about the Internet about illegal notaries engaging in any kind of improper behavior, and I’m not sure these stories are credible.  Granted, the definition of impeachable offense is very broad in NC.[3] Mr. Millis’s accusations are hardly the appropriate fodder for an impeachment proceeding.  

Mr. Millis says that he is concerned that alien notaries might be notarizing absentee ballots.  In other words, he’s trying to link his concern over alien notaries to another far-fetched issue: voter fraud.  Not only is Mr. Millis’s concern far-fetched, absentee ballots don’t even require a notary if they are witnessed by any two people over the age of 18, who haven’t been convicted of a felony or class II misdemeanor.  N.C.G.S. § 163-231 

According to Representative Millis, his office found 320 people have been improperly approved as notaries over the past 9 years.  I could only find old data on the number of notaries in our state, but the data would suggest that something like 0.2% out of 143,000 notaries may have been improperly granted notary status.[4]  The Secretary of State has processed many more applications and renewals over the past nine years, so the actual error rate would be even less than I’ve estimated (giving credit to Mr. Millis’s allegation).

Secretary Marshall denies that her office granted notary power to anyone who wasn’t a legal resident, and avers that it is in full compliance with federal law.   Her Deputy Secretary has testified before the House Rules Committee about the documentation the Department uses to determine whether an applicant is legal resident in the U.S.  As best I can tell, the Department uses the same sorts of proof as other states.

If you are wondering why non-U.S. citizens can be notaries, it’s because the Supreme Court says so.  In Bernal v. Fainter, Secretary of State of Texas, et al., 467 U.S. 216 (1984), the Court ruled that a Texas law requiring U.S. citizenship was unconstitutional under the Fourteenth Amendment of the Constitution.  The court put the role of a notary in proper perspective, a view that Representative Millis does not understand, “Although there is a critical need for a notary's duties to be carried out correctly and with integrity, those duties are essentially clerical and ministerial. Texas notaries are not invested with policymaking responsibility or broad discretion in the execution of public policy that requires the routine exercise of authority over individuals. 467 U.S. at 217.

There’s no question that Representative Millis and his Republican colleagues are engaged in a blatantly political exercise.  Remember, we’re talking about licensing notary publics, who simply attest that a person appeared before them and affixed their signature to a document.  As the Supreme Court stated, this is just a clerical or ministerial act.  If you take the time to look at the Secretary of State’s process for approving notaries, it looks like the same process in every other state.

While the impeachment of Secretary Marshall would be absurd, I wouldn’t bet against it.  Federal and state courts have repeatedly found actions by our legislature violate U.S. or N.C. constitutions.  If the House impeaches the Secretary and the Senate convicts her, there is no appeal.   The integrity of our state’s government is at stake.

[3]  NCGS § 123-5. Causes for impeachment.
Each member of the Council of State shall be liable to impeachment for the commission of any felony, or the commission of any misdemeanor involving moral turpitude, or for malfeasance in office, or for willful neglect of duty.

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