A three-judge panel has struck two constitutional amendments from the November ballot.
In a 2-1 decision released Tuesday evening, the judges ruled that the wording of the ballot questions associated with the two amendments would not sufficiently inform voters as required by the constitution. Both amendments would transfer power from Gov. Roy Cooper to the General Assembly.
The order is a temporary victory for Cooper and a partial-win for the North Carolina NAACP. The NAACP filed its lawsuit with Clean Air Carolina, but the panel ruled the latter group did not have standing. The panel also ruled the other two amendment questions the groups were challenging — tax cap and voter photo ID — could remain on the ballot.
In a nod to the General Assembly, the panel expedited its order to give time for appellate review or to give lawmakers a chance to return to Raleigh and redraft constitutional ballot questions so that they could still appear on the ballot.
“This panel likewise does not seek to retain jurisdiction to ‘supervise’ or otherwise be involved in re-drafting of any ballot question language,” the order states. “The process rests in the hands of the General Assembly, subject only to constitutional limitations.”
Top Republican lawmakers were silent on social media after the ruling but a spokesman for Senate President Pro Tem Phil Berger told WRAL it was “uncharted territory for judicial activism” and that it”sets a dangerous precedent when two judges take away the rights of 9 million people to vote on what their constitution says.”
The two judges who agreed on the order are Judge Forrest Bridges, a registered Democrat serving Cleveland and Lincoln counties and Judge Thomas Lock, who is registered to vote as an unaffiliated and serves Harnett, Johnston and Lee counties. Judge Jeffery Carpenter, a registered Republican who serves Union County, dissented from portions of the order and plans to file a separate order detailing his position on the issues.
Cooper’s Press Secretary, Ford Porter, said after the order was released that they appreciated the court’s thoughtful consideration.
“Misleading voters about the true impact of amendments that threaten our fundamental separation of powers is wrong, as the ruling recognizes,” he stated in a news release. “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.”
Southern Environmental Law Center senior attorney Kym Hunter, who argued for the NAACP and Clean Air Carolina in court, said the plaintiffs were thankful the court “stopped the legislature’s unprecedented attacks on the separation of our state powers” but they needed to intervene in the other two amendments.
“The democratic power of the people cannot be stolen through gerrymandered districts and misleading ballot language as legislative leaders are attempting to do,” she stated in a news release. “We will be appealing today’s decision to the North Carolina Supreme Court and will continue fighting to ensure all North Carolinians are properly represented.”
Hunter had argued to the panel that the General Assembly was unlawfully constituted — that they were usurpers — and therefore should not be allowed to propose constitutional amendments, but the judges declined to rule on such an issue.
“And even if assuming NC NAACP is correct, a conclusion by the undersigned three-judge panel that the General Assembly is a ‘usurper’ legislative body would result only in causing chaos and confusion in government; in considering the equities, such a result must be avoided,” the order states.
A prior order from the panel prevents the State Board of Elections and Ethics Enforcement from proceeding with ballot preparation for at least three business days. The absolute latest deadline the State Board has to meet to comply with federal regulations on absentee voting is Sept. 1.
Read the panel’s full order from Tuesday below.