In an unusual order likely to be appealed, a majority of a three-judge Superior Court panel removed two constitutional amendments from the Nov. 6 ballot. The court ruled the language drafted by the Republican-led General Assembly would mislead voters.
Judges Forrest Bridges, a Democrat, and Thomas Lock, unaffiliated, ruled ballot language describing constitutional amendments involving separation of powers and filling judicial vacancies didn’t accurately describe the intent or consequences of the amendments. They granted a preliminary injunction Tuesday, Aug. 21, to keep them off the ballot.
Judge Jeffery Carpenter, a Republican, dissented, and will file a separate opinion.
The full panel agreed voters could understand the ballot language for constitutional amendments requiring photo ID to vote and capping the income tax rate, and left them on the ballot.
The panel didn’t consider the N.C. Conference of NAACP’s contention that the General Assembly was a usurper legislative body unconstitutionally seated through racial gerrymandering. The court said it didn’t have jurisdiction to make such a ruling, and even if the group’s arguments were correct, implementing the ruling would cause chaos.
Senate leader Phil Berger, R-Rockingham, House Speaker Tim Moore, R-Cleveland, and the Bipartisan State Board of Elections and Ethics Enforcement were named as defendants in lawsuits brought by Gov. Roy Cooper, and separately by the NAACP and Clean Air Carolina. Though named a defendant, the elections board sided with Cooper and the NAACP.
“We’re aware of no North Carolina court that has ever before denied the people the right to vote on a constitutional amendment,” Pat Ryan, a spokesman for Senate Leader Phil Berger, R-Rockingham, said in a written statement.
“This is uncharted territory for judicial activism and sets a dangerous precedent when two judges take away the rights of 9 million people to vote on what their constitution says. We are reviewing our legal options,” Ryan said.
Cooper’s office praised the decision.
The order made clear the judges knew of the precedent they could be setting.
“We are aware that our courts have not previously addressed a situation exactly like the one presented here,” the order said. “As a result, this panel must rely on principals [sic] of constitutional interpretation established by our courts, including the text of the Constitution and accepted canons of construction, as well as the historical jurisprudence of our courts on similar issues.”
While acknowledging laws passed by the General Assembly should be considered constitutionally valid, and the legislature has the authority to determine the time and manner to present constitutional amendments to voters, the panel referenced previous court rulings that led to their split decision.
The order said part of the ballot language describing establishment of a new Bipartisan Board of Ethics and Elections was not completely accurate or articulate, but it was not sufficiently misleading to violate constitutional requirements.
But, the panel majority said, wording stating the amendment would clarify the appointment authority of the legislative and judicial branches “does not sufficiently inform the voters and is not stated in such manner as to enable them intelligently to express their opinion upon it.”
Plaintiffs contend thousands of appointments to hundreds of boards and commissions would shift power from the governor to the legislature. The order said the amendment substantially realigns appointment authority without mentioning how it affects the executive branch and makes significant changes to the governor’s duty to exercise his powers without mentioning it.