North Carolina Court: Constitutional Changes Misleading, Blocked

RALEIGH, N.C. (AP) — A divided judicial panel says two proposed North Carolina constitutional amendments that would diminish the powers of the state's governor are misleading and shouldn't appear on ballots in November. Aug. 21, 2018, at 8:11 p.m. 

By EMERY P. DALESIO and GARY D. ROBERTSON, Associated Press

RALEIGH, N.C. (AP) — Referendums on two proposed North Carolina constitutional amendments that would diminish the powers of the state's governor if approved are misleading and shouldn't appear on ballots in November, a divided judicial panel determined Tuesday.

The panel ruled 2-1 that the questions adopted by the Republican-led General Assembly don't fairly and impartially describe the decisions facing voters, siding with arguments advanced last week by lawyers for Democratic Gov. Roy Cooper.

The judges said the evidence indicated Cooper and the state chapter of the NAACP, which filed a separate lawsuit, were likely to prevail but hurried their ruling to allow time for an appeal. The judges had blocked the state elections board from printing ballots while the lawsuits are pending. They need to be finalized soon so that they can be sent to absentee voters starting Sept. 7.

The ruling blocks votes on two challenged amendments of the six that lawmakers approved in June. One would let legislators have more control over filling judicial vacancies now nearly always decided by governors. The second constitutional change would make clear lawmakers control appointments for boards and commissions that decide rules for everything from beauty salons and natural gas fracking to how elections should run.

The decision was signed by Superior Court Judges Forrest Donald Bridges of Cleveland County, a Democrat, and Thomas Lock of Johnston County, who is unaffiliated. Superior Court Judge Jeffrey Carpenter of Union County, a Republican, dissented from the decision.

Cooper's lawyers had argued last week that if judges accepted the legislature's arguments that courts have to butt out and lawmakers have complete control over putting constitutional changes before the voters, it would give legislators free rein to write ballot questions in ways that are wrong or misleading.

Lawyers for House Speaker Tim Moore and Senate leader Phil Berger countered that legislators could propose amendments without having an obligation to explain their effects. Berger spokesman Pat Ryan said legal options were being reviewed.

The ruling "is uncharted territory for judicial activism and sets a dangerous precedent when two judges take away the rights of (millions of) people to vote on what their constitution says," Ryan said in an email.

Cooper spokesman Ford Porter issued a statement Tuesday night saying the governor appreciated the judge's attention to the case and were glad for the favorable ruling.

"Misleading voters about the true impact of amendments that threaten our fundamental separation of powers is wrong, as the ruling recognizes," the statement said.

The majority decision to issue the preliminary injunctions cited a 100-year-old state Supreme Court ruling directing that voters be "fully informed of the question they are called upon to decide." The 1918 ruling cited in Tuesday's decision said ballot questions also must be written in a way to enable voters "intelligently to express their opinion upon in it."

Lock and Bridges agreed it was beyond a reasonable doubt that the two blocked ballot questions did not meet those requirements.

The judges wrote that the boards and commissions amendment fails to mention how it would alter a governor's powers and make significant changes to the governor's duties.

As for the judicial vacancies proposal, Bridges and Lock wrote, the ballot language makes no mention of the "substantial changes" made to the governor's power if it were to be approved. The proposed amendment also ignores the potential for lawmakers to add unrelated measures to bills selecting replacement judges, thus diminishing the governor's veto powers.

The judicial panel refused to block two other amendments, a move sought by the NAACP and Clean Air Carolina. Those amendments would mandate photo identification to vote in person and reduce the maximum allowed income tax rate. The judges, however, decided the environmental group lacked legal standing to challenge the ballot questions.

Kym Hunter, an attorney representing the groups, said they will appeal to the Supreme Court to block the other two amendments they targeted. Still, "we're grateful the court has stopped the legislature's unprecedented attacks on the separation of our state powers" Hunter said in a release.

The state's five living ex-governors — three Democrats and two Republicans — filed a legal brief last week supporting Cooper's lawsuit to block the two questions he challenged from going on ballots.

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