Whose Power Is It Anyway? Measures to Lessen Governor's Make It Back Onto North Carolina Ballot

by | September 4, 2018 AT 5:18 PM

By Will Doran

Gov. Roy Cooper lost his lawsuit against the General Assembly on Friday, which means two controversial constitutional amendments will appear on the ballot this November -- unless an appeals court rules for Cooper.

Cooper's lawyers said after the loss that they plan to appeal straight to the N.C. Supreme Court, possibly as soon as today.

At issue are two proposed changes to the state constitution, which the Republican-led legislature wants voters to approve  in the November election. Both would transfer power away from the governor's office and give it to the General Assembly. One deals with the power to appoint new judges to vacant judicial seats, and the other deals with the makeup of the N.C. Board of Elections and Ethics Enforcement.

In addition to lessening Cooper's influence over the elections board, the amendment would also remove the board's ninth member, who holds a seat reserved for a politically unaffiliated person intended to serve as a tiebreaker on controversial issues. If voters pass the amendment, the elections board would have eight members, split evenly between Republicans and Democrats.

Legislators previously tried to pass a law doing the same thing, but earlier this year the N.C. Supreme Court ruled that it was unconstitutional. So the legislators responded with this proposal to change the constitution.

Cooper's lawyers argued Friday that voters won't know about that important history, since the ballot language approved by legislators won't mention anything about it. But lawyers for Republican legislative leaders Rep. Tim Moore and Sen. Phil Berger said they're not required to inform voters about the politics behind amendments, just what the amendments would do if passed.

"Everything about this process is right here in the ballot question," Martin Warf, one of the Legislature's attorneys, told the three-judge panel that later ruled in his favor on Friday. "The people of North Carolina can decide for themselves whether they want this change."

However, the North Carolina solicitor general, Matt Sawchak, said in court Friday that the state elections board is opposed to the amendments -- not because it would be affected itself, but because its leaders believe the ballot questions remain misleading.

"Having studied these new ballot questions I must say that the board remains concerned ... that these ballot questions fail the standards," Sawchak said.

However, the judges said they could not find enough proof to back up the arguments that the ballot questions remained misleading, so they ruled in favor of the legislators.

This was the second trial in this case. Cooper won the first trial, which forced the Legislature to come back to Raleigh and re-write the two amendments and their descriptions on the ballot, which they finished on Monday.

If the Supreme Court backs up the trial court and rules in the Legislature's favor, the amendments will go before voters on Nov. 6.

Moore said in a written statement after his court win that he thinks the amendments have popular support, and that Cooper should "immediately stop trying to use litigation to block the people from being heard."

But if the Supreme Court rules in Cooper's favor, it's unclear what might happen. The state has already missed one deadline to begin the lengthy process of printing all the ballots for the upcoming election, and another federally required deadline is fast approaching.

Ford Porter, a Cooper spokesman, said Friday that they appreciate the court's swift action and still believe the Legislature has proposed "deceptive ballot questions."

However, no matter what happens next, this lawsuit is not the only one holding up the ballots.

Porter was referring to a ruling in a federal lawsuit Monday. In that case a panel of trial judges ruled that the state's 13 districts used to elect members of the U.S. House of Representatives are unconstitutional, due to partisan gerrymandering. The judges in that case ruled that the state couldn't have those 13 elections in November without new maps, although the case isn't over yet and that could change in the future.

And in state court, two other amendments are also facing a separate legal challenge. The North Carolina NAACP and local environmental groups have sued over an amendment that would institute voter ID laws -- after the state's last attempt to create voter ID was struck down as racially motivated and unconstitutional in federal court -- and another amendment that would lower the state's maximum possible income tax rate. The case against those two amendments is currently before the N.C. Court of Appeals.

Depending on what happens with those two lawsuits in the coming days, voters will be able to decide on anywhere from two to six proposed changes to the state constitution when they head to the polls in November. The two amendments that aren't facing legal challenges would re-affirm that people have the right to hunt and fish, and would give additional rights to victims of crimes.

(c)2018 The News & Observer (Raleigh, N.C.)