Supreme Court clears amendments
Published 12:00 am Wednesday, September 5, 2018
By Gary D. Robertson
RALEIGH — The state Supreme Court decided Tuesday that two proposed amendments to the state constitution addressing judicial vacancies and the state elections board will be on the ballot this fall.
Both referenda were fought by Democratic Gov. Roy Cooper, but the state Supreme Court affirmed a lower court decision denying his request to block for now the questions for those amendments from appearing on ballots.
Cooper’s attorneys had argued the referendum language remained flawed for voters even after the Republican-controlled legislature altered them in response to an earlier court ruling.
The decision means there will be six referendum questions on the November ballot — the same number that GOP legislators submitted to voters in June, although two were scaled back. An earlier decision Tuesday by the justices kept in place two referenda that had been challenged by the state NAACP.
Both of the one-sentence rulings by the court did not explain the reasoning of the justices. No dissenting opinions were identified. The justices also dissolved an order they issued last week that prevented state officials from preparing state ballots until told otherwise by the court.
When combined with a separate ruling Tuesday by a panel of federal judges deciding against requiring a new congressional map this fall, the decisions mean the state elections board can move on creating ballots to meet a Sept. 22 deadline for overseas and military absentee voters.
“It’s time we let the people vote,” said GOP state Rep. David Lewis of Harnett County, who sponsored many of the amendments, referring to “a truly exhausting amount of litigation.”
Cooper and Democratic allies have criticized the proposals because they would swing control over filling bench vacancies from the governor to the legislature and give General Assembly leaders direct say over who would serve on the elections board.
“These amendments are deceptive and will erode checks and balances in state government,” Cooper spokesman Ford Porter said in a news release late Tuesday, adding the governor will “continue to urge voters to understand their true impact.”
Two weeks ago, a majority of judges on a trial-level panel had prevented previous versions of these questions approved by the General Assembly from going on ballots. That prompted legislators to hold a special session and submit slightly different amendments and questions.
Cooper contended the new questions were still misleading and didn’t explain that a significant power shift from the executive and legislative branches would occur if they were approved.
But the same judicial panel agreed unanimously last Friday it was “unable to find beyond a reasonable doubt that that language is facially unconstitutional.” The Supreme Court took the case quickly.
Attorneys for GOP lawmakers argued the differences between Cooper and the GOP legislators were political questions, so the judicial branch should have steered clear of them. Regardless, they said, the new referendums were clearly written.
“The ballot text is fair and accurate, and despite the governor’s best efforts, the courts agree,” state GOP Chairman Robin Hayes said in a statement.
The judicial vacancy amendment would require the governor to fill a judicial vacancy with someone from among at least two nominees agreed to by the legislature. Those nominees would originate from a pool of qualified candidates examined by an outside commission. Currently the governor makes a choice, in most cases, without any legislative participation.
The elections board amendment would ask voters to let the constitution establish a bipartisan eight-member elections and ethics board. While the governor would still formally appoint the members, lawmakers would direct whom the appointees were.
Other constitutional referendums that will also be on ballots would require photo identification to vote , lower the cap on income tax rates from 10 percent to 7 percent,expand crime victims’ rights and enshrine the right to hunt and fish . The state NAACP had sought to block the voter ID and tax cap referendums.
The decisions don’t halt the litigation entirely, but any trial rulings would occur after ballots are printed or after the election. Referendum results could be ruled invalid after the fact.
“The underlying challenge is still alive,” Kym Hunter, a lawyer representing the NAACP, said in an email.