News: CJ Exclusives

Judges allow delay in printing ballots, expecting appeals of amendment challenges

Superior Court Judge Forrest Bridges, center, listens to testimony during an Aug. 15 hearing on challenges to constitutional amendments. He's flanked by Judges Jeffery Carpenter, left, and Thomas Lock. (CJ photo by Dan Way)
Superior Court Judge Forrest Bridges, center, listens to testimony during an Aug. 15 hearing on challenges to constitutional amendments. He's flanked by Judges Jeffery Carpenter, left, and Thomas Lock. (CJ photo by Dan Way)

A three-judge Superior Court panel has ordered state elections officials to delay printing fall election ballots until Sept. 1.

The ruling was announced Wednesday, Aug. 15, after judges heard back-to-back arguments in two cases seeking to block proposed constitutional amendments from appearing on the ballot. Gov. Roy Cooper filed one, the N.C. Conference of NAACP and Clean Air Carolina joined to file another.

A court order was necessary to delay printing the ballots. But nobody in the courtroom thought the three-judge panel would have the last word.

“In all candor, we know that someone’s going to appeal,” Judge Forrest Bridges told lawyers during the NAACP/Clean Air Carolina hearing.

The judges directed the Bipartisan State Board of Elections and Ethics Enforcement to begin the 21-day process of printing the ballots if it hasn’t received a final order by Sept. 1 from them or an appellate court. The general election is Nov. 6. Bridges ordered the delay, in part, to prevent more than one batch of ballots from being printed at taxpayer expense if the court’s orders were reversed on appeal. 

State law says mail-in ballots must be ready for distribution 60 days before an election — more time than the federal minimum of 45, noted N.C. Solicitor General Matt Sawchak, representing the elections board. This marks the second deadline the elections board would miss for printing ballots. The delay gives the board a breather as court action continues.

John Wester, an attorney representing Cooper, and Martin Warf, representing defendants Senate Leader Phil Berger, R-Rockingham, and House Speaker Tim Moore, R-Cleveland, said they would give the judges proposed orders for the judges to consider by noon Thursday.

The panel’s other members are Thomas Lock, registered unaffiliated and serving Johnston County, and Jeffery Carpenter, a Republican serving Union County.

The arguments turn largely on separation of powers. The constitutional guarantees that all power in state government rests with the people, and only voters can change the state constitution figured prominently.

Defendants said if Cooper were successful and stripped the amendments from the ballot, he would have de facto veto authority over constitutional amendments. Proposed amendments are among several bills the governor cannot veto.

Challengers say the Republican legislative supermajority is unconstitutionally transferring power from the executive branch to the legislature, and tricking voters with exceptionally misleading ballot language.

The judges challenged the plaintiffs’ legal basis for seeking an injunction to remove amendments from the ballot, denying voters the right to alter the constitution. They quizzed defendants why the legislature’s acts should be presumed constitutional and beyond the court’s interpretation.

North Carolina courts haven’t dealt with these issues before, forcing both sides to offer the judges cases from other states to examine for guidance.

Cooper lawsuit

Cooper is challenging two proposed constitutional amendments. He contends an amendment establishing an elections board violates the constitution’s separation of powers clause. Another altering the way judicial vacancies are filled would take away thousands of appointments to hundreds of boards and commissions, he claims.

Wester said Cooper’s suit seeks to prevent the General Assembly from using unfair and inaccurate ballot language that tricks voters and pushes them to vote yes. He claimed statutory and constitutional safeguards should prevent such behavior.

Warf said this is a political question rather than a constitutional one. If judges grant Cooper’s request, he said, they “will have undone the balance of power, not by amendment, but simply at the request of the executive branch.”

NAACP/Clean Air Carolina lawsuit

Their lawsuit challenges the same amendments as Cooper does, plus one requiring photo ID to vote, and another that would lower the income tax cap from 10 percent to 7 percent.

Plaintiffs lawyer Kym Hunter argued the General Assembly is an unconstitutional body because Republicans racially gerrymandered legislative districts to win a supermajority, and are now orchestrating a power grab through unconstitutionally misleading ballot language.

Matt Abee, representing Berger and Moore, dismissed Hunter’s contention, saying no court has declared the legislature an unconstitutional body.