The N.C. Conference of the NAACP and Clean Air Carolina are asking Wake County Superior Court to strip four proposed constitutional amendments from the Nov. 6 general election ballot. The lawsuit argues the amendments are vague, incomplete, and misleading — and that the General Assembly itself is an unconstitutionally constituted usurper body that can’t propose constitutional amendments.

The groups filed the lawsuit Monday, Aug. 6.

Senate leader Phil Berger, R-Rockingham, and House Speaker Tim Moore, R-Cleveland, are among the defendants. Each responded to the lawsuit with a written statement.

“We predicted Democratic activists would launch absurd legal attacks to keep the voters from deciding on their own Constitution, but this one really jumps the shark,” Berger spokesman Bill D’Elia said.

“The most frivolous lawsuit of them all, the NAACP is advancing a completely spurious argument already rejected by the courts simply to score points against overwhelmingly popular amendments,” said Moore spokesman Joseph Kyser.

The lawsuit contends “North Carolina’s democracy is under siege.” It cites the U.S. Supreme Court’s ruling in the Covington v. North Carolina racial gerrymandering case, resulting in 28 legislative districts being struck down and redrawn.

The lawsuit says the unlawful gerrymandering led to veto-proof Republican majorities in both legislative chambers, allowing Republicans to place six vaguely worded and incomplete constitutional amendments before voters in the fall election.

“This ballot language fails to convey the full effect of the proposed changes in violation of the North Carolina Constitution,” the suit states.

The General Assembly barely met the three-fifths supermajority threshold for four of the six constitutional amendments. Republicans built a supermajority by illegally drawing legislative maps that targeted black voters and packed them into racially segregated districts, the suit contends.

“This court cannot allow this unconstitutionally constituted body to use its misappropriated power to enact proposals that amend our Constitution in ways designed to suppress African-American voters and to further entrench the usurpers’ political power at the expense of popular sovereignty,” the suit states.

The lawsuit alleges Republicans violated the state Constitution by failing to put descriptions on the amendments that clearly and accurately communicate their effects:

  • An amendment dealing with judicial appointments would allow the legislature to pass bills “free from the check and balance of the gubernatorial veto.”
  • An amendment creating a Bipartisan Board of Ethics and Elections Enforcement “would, in fact, constitute an unprecedented power shift to the legislative branch across 350 different boards and commissions in the state.”
  • A voter photo ID amendment “could quickly create significant confusion in our system of voting, and a new host of equal protection issues for voters” if every county interprets it differently.
  • An income tax amendment suggests rates will be immediately reduced “when in fact the change is related to the maximum allowable tax cap” being set at 7 percent.

State Rep. David Lewis, R-Harnett, addressed the appointment issue of state boards and commissions during floor debate Saturday.

All policymaking authority in North Carolina is constitutionally vested in the General Assembly, Lewis said, even though the legislature has delegated some of that responsibility to boards and commissions.

“We have the authority to create those boards, we have the authority to decide who appoints those boards,” Lewis said, but there is “no intention to change dramatically how that’s done.”

The NAACP and Clean Air Carolina disagree.

“Because constitutional amendments require supermajority votes, they will be hard to undo,” the suit states. “The Court can prevent such chaos by issuing preliminary injunctive relief to ensure that amendments are not placed on the ballot until a legally constituted body has an opportunity to deliberate and present lawful amendment proposals to the voters of North Carolina.”

The plaintiffs say if the amendments are on the ballot, the groups would have to use their limited and finite resources on educating voters about the constitutional amendments instead of allocating them to core mission activities.

Clean Air Carolina contends, for instance, its agenda would face hurdles because the judiciary and state boards and commissions would become less impartial and more political. The income tax cap would hinder its push for greater environmental protection and more bicycle, pedestrian, bus, and light rail transportation projects.

The groups ask Wake County Superior Court to issue a preliminary injunction even if it decides the case belong in federal court.

The usurper argument declaring the state legislature unconstitutionally constituted previously was raised in the Covington case at a July 2017 federal court hearing.

“It’s a very strong argument,” plaintiffs attorney Anita Earls told the court. Earls is running as a Democrat for state Supreme Court. She figures in another lawsuit filed by Supreme Court candidate Chris Anglin. His Republican affiliation was stripped from the ballot because Republicans contended he was actually a Democrat who switched parties to dilute GOP votes for incumbent Justice Barbara Jackson.

U.S. Appeals Court Judge James Wynn said in the July 2017 hearing the state Supreme Court, rather than the federal court, should deal with the legislative usurper claim.

Also listed as defendants are the N.C. Bipartisan State Board of Elections and Ethics Enforcement and the elections board’s nine individual members: Andrew Penry, Joshua Malcolm, Ken Raymond, Stella Anderson, Damon Circosta, Stacy Eggers, Jay Hemphill, Valerie Johnson, and John Lewis.