NAACP, environmentalists sue to keep constitutional amendments off the ballot

The state NAACP and an environmental non-profit plan to sue state legislative leaders Monday morning to keep four proposed constitutional amendments off the ballot this fall.

Posted 12:45 p.m. Aug 6, 2018 — Updated 11:51 a.m. Aug 7, 2018

Travis Fain

, WRAL statehouse reporter

RALEIGH, N.C. — The state NAACP and an environmental nonprofit filed a lawsuit against state legislative leaders Monday in an attempt to keep four proposed constitutional amendments off the ballot this fall.

The coalition argues that the North Carolina General Assembly itself is unconstitutional, given recent federal court decisions finding racial gerrymanders in districts where current members were elected.

This leaves the legislature without the legitimate power to put amendments before the voters, the group argues. They want a Wake County Superior Court judge to slap Republican leadership in the General Assembly, and the State Board of Elections and Ethics Enforcement, with an injunction. A hearing was scheduled for Tuesday morning.

The filing also argues that the much-contested ballot language voters will see on the amendments is unconstitutionally vague. In a press release, state NAACP President T. Anthony Spearman called the collection of amendments "one of the greatest threats to our state's democratic institutions since the Civil War."

Track the status of high-profile lawsuits over elections, governor's powers and more

The coalition joins Gov. Roy Cooper's administration in heading to the courthouse. Cooper's office announced its own lawsuit over the weekend, though that targets just two of the General Assembly's six proposed amendments: one shifting power to fill judicial vacancies from the governor to the legislature and another asserting the General Assembly's power to make a slew of other appointments handled now by the executive branch.

The NAACP, along with an environmental group called Clean Air Carolina, is targeting both of those amendments and two others: One to require photo identification to vote and another to lower the state's income tax cap from 10 percent to 7 percent. The suit does not seek to block two other amendments proposed this year, which would enshrine hunting and fishing rights in the state constitution and expand court notice requirements for crime victims.

The complaint names House Speaker Tim Moore and Senate President Pro Tem Phil Berger, who head up Republican super-majorities in the House and the Senate. It's one of four suits filed Monday, including the governor's and two separate suits dealing with the way judicial candidates will be described on the ballot.

In a statement Monday, Moore spokesman Joseph Kyzer described the NAACP filing as "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," Kyzer said.

GOP leaders had predicted legal action Saturday, when they gathered to override a pair of Cooper vetoes. House Rules Chairman David Lewis, R-Harnett, said the coming legal efforts would be just one more prong in a liberal strategy of "sue till blue." Berger's spokesman said Monday that that the NAACP suit "really jumps the shark," a reference to a 1977 episode of "Happy Days" in which the character Fonzie literally jumps a shark on water skis while wearing his signature leather motorcycle jacket. More or less, the phrase is shorthand for something that so strains credulity that it cannot be recovered from.

These new cases – Cooper's and the NAACP/Clean Air Carolina suit – are the latest in a line of court efforts Democrats have advanced to rein in a gerrymandered legislative majority they see as trying to maintain power beyond the November elections, which will again decide control of the General Assembly. Republicans say Democrats have become unfairly litigious because they have not won legislative elections.

Cooper and the NAACP's coalition both argue that the wording voters will see on ballots is purposefully vague and misleading. Saturday's veto override session saw to it that, instead of short summaries written by a commission made up of two Democrats and one Republican, the amendments will simply be titled "Constitutional Amendment" on the ballots voters see. Below that, voters will see be asked to vote for or against the following language from the four bills targeted in this latest suit:

"Constitutional amendment to implement a nonpartisan merit-based system that relies on professional qualifications instead of political influence when nominating Justices and judges to be selected to fill vacancies that occur between judicial elections."

Currently the governor can fill judicial vacancies largely as he or she sees fit. This proposal would create a commission to vet candidates, then have the legislature forward two names to the governor, who would have to pick one of those two.

"Constitutional amendment to establish a bipartisan Board of Ethics and Elections to administer ethics and election laws, to clarify the appointment authority of the Legislative and the Judicial Branches, and to prohibit legislators from serving on boards and commissions exercising executive or judicial authority."

This would replace the current State Board of Elections and Ethics Enforcement, which has been the subject of other lawsuits and the governor has a one-member advantage on, with a board made up of four appointees approved by the legislative majority and four by the legislative minority. It would also cement the legislature's disputed ability to take hundreds of other appointment powers from the governor and make those appointments itself.

"Constitutional amendment to require voters to provide photo identification before voting in person."

This would add a photo ID requirement to the state constitution, with the legislature deciding after the amendment passes what sorts of IDs would be accepted. Republican leaders have called another General Assembly session for after the November elections, but before the new General Assembly elected in November is seated, to flesh that rule out, a maneuver Democrats have criticized as unfair.

"Constitutional amendment to reduce the income tax rate in North Carolina to a maximum allowable rate of seven percent (7%)."

The current cap in the state constitution is 10 percent. The Southern Environmental Law Center, which along with other attorneys represents the NAACP and Clean Air Carolinas in this latest case, argues that the lower cap "could limit funding for programs in support of those living in poverty, civil rights, and environmental protection programs."

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