News: CJ Exclusives

Cooper sues to block two constitutional amendments from Nov. 6 ballot

Gov. Roy Cooper, at a Feb. 14, 2018 press conference at the Executive Mansion. (CJ photo by Don Carrington)
Gov. Roy Cooper, at a Feb. 14, 2018 press conference at the Executive Mansion. (CJ photo by Don Carrington)

Gov. Roy Cooper has filed a court challenge to two constitutional amendments because they “would take a wrecking ball to the separation of powers” by rewriting bedrock constitutional provisions — including the Separation of Powers Clause itself.

Cooper, a Democrat, says the Republican-led General Assembly wants to strip his power to appoint thousands of officials to hundreds of boards and commissions that execute state laws, defying recent state Supreme Court decisions.

In the suit, filed in Wake County Superior Court on Monday, Aug. 6, Cooper also claims the amendments would “confer exclusive authority on the General Assembly to choose those whom the Governor can consider to fill judicial vacancies. And they ultimately threaten to consolidate control over all three branches of government in the General Assembly.”

Cooper wants a court injunction to “stop the General Assembly from perpetrating a deceitful scheme on the people of North Carolina. This Court should declare the false and misleading ballot language written by the General Assembly to be unconstitutional,” and immediately block it from appearing on the Nov. 6 general election ballot.

Among the defendants are Senate leader Phil Berger, R-Rockingham, and House Speaker Tim Moore, R-Cleveland.

“Political litigation is the governor’s idea of leadership, and the people of North Carolina are becoming accustomed to Cooper’s use of the court system to circumvent their support of popular legislative proposals,” said Moore spokesman Joseph Kyzer.     

“The governor is arguing that voters aren’t intelligent enough to educate themselves on the amendments over the next three months, but we think he’s scared that the voters will know exactly what they’re doing in taking away his unchecked power to reshape the judiciary,” Berger spokesman Bill D’Elia said in a written statement.

“That’s why he’s searching for an activist judge to stop the people of North Carolina from amending their own Constitution to give a bipartisan commission, the legislature, and citizens a say in the process,” D’Elia said.

By waiting five weeks to file multiple “absurd lawsuits,” Cooper and Democratic allies created an emergency of their own making, “and have taken the shameful step of attempting to get an activist judge to take away the right of North Carolinians to amend their own Constitution,” D’Elia said. “Gov. Cooper should stay out of a process that he has no constitutional right to be a part of and let the people decide.”

Cooper spokeswoman Sadie Weiner said in a written statement House Bill 913 and Senate Bill 814 “cripple separation of powers and checks and balances.”

H.B. 913 creates a new eight-member Bipartisan Board of Ethics and Elections Enforcement appointed by the legislature, and outside the authority of the executive branch. S.B. 814 deals with filling judicial vacancies. It creates nonpartisan judicial merit commissions to recommend judge candidates to the General Assembly, which would make nominations to the governor.

By giving the legislature the authority to appoint hundreds of regulators and decisionmakers to state boards and commissions, Weiner said H.B. 913 “steamrolls the separation of powers, and diminishes the Governor’s ability to faithfully execute the laws, a principle the North Carolina Supreme Court has recently upheld.”

Weiner said S.B. 814 poses another threat.

“Judicial nominees sent by the legislature would not be subject to veto, and the legislature could circumvent the Governor’s veto on a separate matter by simply adding in judicial nominees to a larger bill,” she said.

“This amendment creates a false and misleading narrative about politicization of the courts, leaving voters to believe that the current system is partisan in a way that the proposed system would not be,” Weiner said. “It neglects to mention the repeal of an entire section of the constitution regarding judicial vacancies that has been in the document for over 150 years. And it fails to advise voters that it could undo the Governor’s veto power.”

The lawsuit claims the vague and misleading ballot language on the constitutional amendments is a way for legislative Republicans to circumvent court decisions rejecting their repeated attempts to politicize and delegitimize the courts.

Article XIII of the state Constitution “requires that a proposed amendment be fairly and accurately reflected on the ballot,” the suit states. Other constitutional provisions hold that an amendment cannot be the will of the people if amendments are not fairly and accurately presented.

Cooper said he faces immediate and irreparable harm without a court injunction because the Bipartisan State Board of Elections and Ethics Enforcement might finalize the Nov. 6 ballot by Wednesday. Permitting the false and incomplete constitutional questions to remain on the ballot could trigger “a massive transfer of constitutional authority from the Governor to the General Assembly,” the suit states.

An injunction would preserve the governor’s rights and the status quo while the matter is in the courts, the suit states.

Also named 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.