A split three-judge panel ruled yesterday that two constitutional amendment ballot questions could not proceed to the November general election.
The order outlined the judges’ decisions with regard to each of the four constitutional amendment questions that were challenged in two separate lawsuits brought by Gov. Roy Cooper and the North Carolina NAACP and Clean Air Carolina.
The two amendment questions the judges ruled cannot proceed have to do with the separation of powers — one deals with Cooper’s appointment power to state boards and commissions and the other deals with his appointment power to judicial vacancies.
The two amendments the judges ruled could proceed to the ballot are one that would require a photo identification to vote and one that would cap the state income tax rate at 7 percent.
The order will almost certainly be appealed. It’s also possible the General Assembly could return to Raleigh to rewrite the ballot language. In the meantime, here’s what the panel wrote about each amendment question in their order:
The Tax Rate Proposed Amendment:
Ballot language: For or Against: Constitutional amendment to reduce the income tax rate in North Carolina to a maximum allowable rate of seven percent (7%).
Judges findings: The language of the Ballot Question may not be perfect, but it is virtually identical to the wording of the amendment itself, referring clearly to a “maximum allowable rate.” NC NAACP would prefer that the Ballot Question use the term “maximum allowable rate,” but the word “cap” appears nowhere in the amendment itself and we do not consider it necessary for the Ballot Question to explain all potential legal ramifications of the amendment, but only its purpose and effect.
The Photo Identification for Voting Proposed Amendment:
Ballot language: For or Against: Constitutional amendment to require voters to provide photo identification before voting in person.
Judges findings: NC NAACP contends the ballot language is misleading by failing to define “photo identification” and failing to make clear that implementing legislation will be needed to establish which photo IDs would suffice. Again, we conclude otherwise. There can be little doubt whether or not the voters will be able to identify the issue on which they will be voting with respect to this proposed amendment. This panel takes judicial notice that Voter ID laws currently compromise a significant political issue in this country, on which an overwhelming majority of voters have strong feelings, one way or the other. 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. We have already noted that there is a presumption of constitutional validity afforded to every act of the General Assembly, and we must afford that same presumption to acts that may be enacted in the future.
In making the aforementioned observations, we are mindful of the fact that there has been ongoing litigation in the federal courts concerning similar legislation previously passed by this General Assembly. Indeed, NC NAACP has devoted much of its argument on this amendment to the reasons for their philosophical opposition to the Voter ID amendment itself. These arguments go well beyond the function of this three-judge panel in these cases. In determining facial constitutional challenges, this court should not concern itself with the wisdom of the legislation, its political ramifications, or the possible motives of the legislators in submitting the issue to voters in the form of a proposed constitutional amendment. This court is limited to determining whether the enacting legislation is facially unconstitutional. With regard to S.L. 2018-128, this panel cannot conclude beyond a reasonable doubt that any such facial invalidity has been shown.
The Board Appointments Proposed Amendment:
Ballot language: For or Against: 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 protect legislators from serving on boards and commissions exercising executive or judicial authority.
Judges findings: Governor Cooper, the State Board of Elections, and the NC NAACP complain that this ballot language is misleading in saying that the amendment “establishes” a bipartisan Board of Ethics and Elections, and will “prohibit” legislators from serving on boards and commissions exercising executive or judicial authority. While the language may not be the most accurate or articulate description of the effect of these provisions, we do not find that the language in these two parts of the Ballot Question is so misleading, standing alone, so as to violate constitutional requirements; although each of these provisions already exists under law, neither has previously been addressed specifically by our state constitution.
In addition to the two points described above, the Ballot Question says only: “to clarify the appointment authority of the Legislative and the Judicial Branches[.]” The Merriam-Webster Dictionary defines “clarify” as “to make understandable” or “to free of confusion.” The concern here with this particular language in the Ballot Question is whether it describes the remaining portions of the proposed amendment with sufficient particularity in order that the voters may be fully informed of the question they are called upon to decide. In this regard, a majority of this panel concludes beyond a reasonable doubt that this portion of the ballot language in the Board Appointments Proposed Amendment does not sufficiently inform voters and is not stated in such manner as to enable them intelligently to express their opinion upon it. In Particular:
a. The proposed amendment substantially realigns appointment authority as allocated previous between the Legislative and Executive branches, but makes no mention of how the Amendment affects the Executive branch.
b. The ballot language mentions clarification of appointment authority of the Judicial Branch, but the Amendment makes no mention of any changes to the appointment authority of the Judiciary.
c. This Amendment makes significant changes of the duties of the Governor in exercising his powers pursuant to the Separation of Powers clause, but no mention is made of that change in the ballot language.
The Judicial Vacancies Proposed Amendment:
Ballot language: For or Against: 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.
Judges findings: Governor Cooper, the State Board of Elections, and NC NAACP complain that the ballot language is misleading in saying that the amendment implements a “nonpartisan merit-based system” that instead of relying on “political influence” relies on “professional qualifications.” A majority of this panel agrees and finds that the language in this Ballot Question misleads and does not sufficiently inform the voters. The concern here with the Ballot Question, again, is whether it describes the proposed with sufficient particularity in order that the voters may be fully informed of the question they are called upon to decide. In this regard, a majority of this panel concludes beyond a reasonable doubt that the ballot language in S.L. 2018-118 does not sufficiently inform the voters and is not stated in such manner to enable them intelligently to express their opinion upon it. In particular:
a. The ballot language indicates that the nonpartisan merit-based system will rely on “professional qualifications” rather than “political influence.” The Amendment requires only that the commission screen and validate each nominee without regard to the nominee’s partisan affiliation, but rather with respect to whether that nominee is qualified or not qualified, as prescribed by law. Aside from partisan affiliation, there is no limitation or control on political influence; the nominees are categorized only as qualified or not qualified rather than being rated or ranked in any order of qualification and the General Assembly is not required to consider any criteria other than choosing nominees found “qualified” by the Commission. (As pointed out by Plaintiffs, current qualifications by law for holding judicial office in this state only require that the person be 21 years of age or more, hold a law license and, in some instances, be a resident of the District.)
b. The Amendment makes substantial changes to appointment powers of the Governor in filling judicial vacancies, but no mention is made of the Governor in the ballot language.
c. Perhaps most significantly, the ballot language makes no mention of the provisions of Section 5 of S.L. 2018-118, which adds two new provisions to Article II, Section 22, Subsection (5) of the North Carolina Constitution
i: Recommending a nominee or nominees to fill a vacancy in the office of Justice and Judge of the General Court of Justice in accordance with Section 23 of Article IV of this Constitution, or
ii: Electing a nominee or nominees to fill a vacancy in the office of Justice and Judge of the General Court of Justice in accordance with Section 23 of Article IV of this Constitution.
Each of these provisions omits the words “and containing no other matter” included in each of the other enumerated exceptions in Section 5, meaning that proposed Bills coupled with judicial appointments would be immune to a veto by the Governor. The ballot language makes no mention of any effect of the Amendment upon veto powers of the Governor.