Three-judge panel pulls two amendments from N.C. ballots

Cooper wins lawsuit for now, court orders state not to print ballots with appointment-shifting amendment language.

Posted 9:50 p.m. Aug 21, 2018 — Updated 12:14 a.m. Aug 22, 2018

Travis Fain

, WRAL statehouse reporter, Laura Leslie, WRAL Capitol Bureau chief

RALEIGH, N.C. — Two of the six constitutional amendments that were supposed to be before North Carolina voters this November must come off the ballot, a three-judge panel ruled Tuesday.

Both amendments would shift gubernatorial appointment powers from the governor's office to the legislature. Gov. Roy Cooper's administration argued that legislators' descriptions of the proposals, which voters would see on their ballots, were deceptive, violating a state law that requires them to be fair and nondiscriminatory.

"A majority of this panel agrees and finds that the language in this ballot question misleads and does not sufficiently inform the voters," the judges wrote in their order Tuesday.

The decision is stayed for three days, according to a separate court order filed last Friday, so that it can be appealed before it takes effect - and it will almost certainly be appealed. The order also contemplates the possibility that the General Assembly will correct problems with the ballot language so that, "properly identified and described," the amendments can still appear on the November ballot.

The court wouldn't supervise that rewrite, the order says, leaving it "in the hands of the General Assembly, subject only to constitutional limitations." According to the attorney for the State Board of Elections, Sept. 1 is the latest date for the ballot to be finalized and meet a federal deadline.

The court's decision was 2-1, with Superior Court Judges Forrest Bridges of Cleveland County and Thomas Lock of Johnston County signing off on the order and certifying it for an immediate appeal. Superior Court Judge Jeffrey Carpenter, of Union County, dissented from parts of the decision and plans to file a separate opinion, the order states.

Senate President Pro Tem Phil Berger's spokesman called the decision "uncharted territory for judicial activism." The decision "sets a dangerous precedent when two judges take away the rights of 9 million people to vote on what their constitution says," he said via email, adding that the team is reviewing legal options.

Ford Porter, Cooper's press secretary, said in a statement released later Tuesday: "Misleading voters about the true impact of amendments that threaten our fundamental separation of powers is wrong, as the ruling recognizes. We’re pleased that the court agrees the people of North Carolina deserve accurate information and a real opportunity to express their opinions about proposed changes to our Constitution."

The judges declined to remove from the ballot two other amendment questions, both of which where targeted in a separate lawsuit filed by the North Carolina NAACP and Clean Air Carolina, an environmental group.

Those amendments would lower the income tax cap in the state constitution and write a voter ID requirement into the constitution. One of the arguments against photo ID has been that the amendment leaves key details, including what sorts of IDs would be accepted, for the General Assembly to decide after voters approve the measure.

"The General Assembly has the exclusive authority to determine the details of any implementing legislation and it would be entirely inappropriate for this panel to speculate as to whether or not that legislation will comport with state and federal constitutional requirements," the judges wrote.

The court rejected the NAACP's argument that the General Assembly is an invalid "usurper" body because it was elected from unconstitutional districts, saying that's not a question for the three-judge panel to decide and, even if it was, such a decision would "result only in in causing chaos and confusion in government."

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