Gov. Roy Cooper has lost his second court battle over the General Assembly’s rewritten constitutional amendments, but plans to appeal to the state Supreme Court.
The same three-judge panel that ruled in his favor in the first lawsuit over amendment ballot language ruled unanimously from the bench Friday that they could not find the new ballot questions unconstitutional beyond a reasonable doubt.
Cooper’s Press Secretary, Ford Porter, indicated immediately after the hearing that they would appeal and all parties agreed at the hearing to bypass the Court of Appeals.
“We appreciate the Court moving swiftly and plan to appeal to the Supreme Court to stop these deceptive ballot questions,” Porter said in a statement.
The amendments in question are one restructuring the State Board and enshrining the body into the constitution and one transferring gubernatorial appointment authority to the General Assembly for judicial vacancies.
House Speaker Tim Moore immediately commended the three-judge panel on Twitter.
“I appreciate this court’s unanimous affirmation that the voters of North Carolina deserve to decide how they are governed & urge Governor Cooper to immediately stop trying to use litigation to block the people from being heard on ballot referendums.” https://t.co/eIKwDwkWKw
— Speaker Tim Moore (@NCHouseSpeaker) August 31, 2018
The judges are Judge Forrest Bridges, a registered Democrat serving Cleveland and Lincoln counties; Judge Thomas H. Lock, who is registered to vote as an unaffiliated and serves Harnett, Johnston and Lee counties; and Jeffery K. Carpenter, a registered Republican who serves Union County. Carpenter was the dissenting judge in the previous lawsuit.
At the Friday hearing, John Wester, one of Gov. Roy Cooper’s attorneys, argued that the new constitutional amendments presented different difficulties than the originals but were no less in violation of the constitution.
He said attorneys for lawmakers chose to focus more on jurisdictional and procedural issues rather than arguing the actual merits of the case.
“The new ballot questions are constitutional because they are better than their first shot of it – that’s the nub of their argument,” he said. “That’s their standard – we’ve done it better this time. The question is not whether the new ballot questions are better than the old ones, the question is are the ballot questions constitutional in their own right?”
Wester suggested the standard for the ballot questions were that the language should be plain, clear and fully leading to a clear understanding of what the voter is deciding to do.
“Without that the system suffers so clearly,” he said.
Adam Doerr went through each of the two rewritten amendments to explain why they remained unconstitutional, and he said it was mainly because lawmakers did not thoroughly explain the primary purpose and effect of each one.
He added that each amendment took from the Governor’s current constitutional authority and transferred his power to the General Assembly, but neither ballot question explains that.
Like in Cooper’s first lawsuit, Matt Sawchak, the Solicitor General of North Carolina who represents the State Board of Elections and Ethics Enforcement, agreed that the new ballot questions were still misleading to the public.
He reminded judges of the tight timeframe everyone was working under – ballot preparation and printing is supposed to begin tomorrow to comply with federal absentee voting standards.
“The hour is certainly growing late for this controversy,” he said.
Noah Huffstetler III, one of two attorneys representing the GOP legislative leaders in court, argued that the three-judge panel should determine Cooper’s challenge to be a political question, which would make it nonjusticiable.
“The arguments today makes it clear that no [ballot] language would be unobjectable by the plaintiff,” he said, adding that the more and more Cooper’s attorneys argued about the merits of their case, the more “it becomes clearer and clearer that these are policy questions.”
Because lawmakers didn’t repeal the prior constitutional amendments, the panel’s ruling makes moot their prior decision, which means all four constitutional amendments — the two original ones and the two rewritten ones — could appear on the November ballot, in addition to the four other proposed amendments.
Martin Warf, the other attorney representing lawmakers, described why he believed each of the new amendment ballot questions were constitutional. He said the constitution did not require lawmakers to put before the voters every single legal nuance that would be possible if an amendment passed.
He also suggested that Cooper’s real issue was with the amendments themselves, not the ballot questions, and that if his challenges could be applicable to the amendments themselves, the court should not take them up.
“That is a question for the people,” he said of the proposed constitutional amendments in question. “You can either vote to implement this or not. There’s no sway or anything associated with it; there’s no framing associated with it.”
Warf added that the Governor did not want the constitutional amendments to “see the light of day” but that the people of North Carolina deserved to see them.
Wester and Doerr, of course, disagreed during their rebuttal, and renewed their reasoning for why the panel should rule the rewritten ballot questions unconstitutional.
Wester said lawmakers would have the court believe there was no limit on what they could propose to the people, but said there was in fact a limit.
“They cannot do it unless [they] are straight up with [the voters],” he said.
Huffstetler similarly closed out by renewing his arguments and told judges that fairness and intelligibility can often in the eye of the beholder.
After the ruling, one of the attorneys asked the panel to enter a stay but they declined since there is still a stay from the state Supreme Court enjoining ballot preparation and printing.
See the court’s Friday order below.