Judge wants panel to review legal challenge to amendments

By: Dan Way - Carolina Journal

RALEIGH — A Wake County Superior Court judge wants state Supreme Court Chief Justice Mark Martin to appoint a three-judge panel to hear challenges by Gov. Roy Cooper and two left-leaning advocacy groups about four proposed constitutional amendments.

Judge Paul Ridgeway said he was confident Martin would appoint the panel, which has the authority to review “facial” challenges to the constitutionality of laws. Ridgeway said he believes the lawsuits are facial challenges which “seek to invalidate on a constitutional basis a section of core acts of the General Assembly.”

Until Martin acts, Ridgeway will retain authority to decide whether to grant the plaintiffs’ request for a temporary restraining order to block the constitutional amendments from appearing on the Nov. 6 ballot.

The Bipartisan State Board of Elections and Ethics Enforcement already has pushed back an Aug. 8 deadline to draft and print ballots based on a TRO granted Monday, Aug. 6, by Superior Court Judge Becky Holt. Holt scheduled a full hearing Monday, Aug. 13, in a lawsuit filed by Supreme Court candidate Chris Anglin.

Anglin, who changed his registration from Democrat to Republican three weeks before filing for the court, sued Monday to block Senate Bill 3, which became law two days earlier over Gov. Roy Cooper’s veto. It stripped Anglin’s partisan affiliation from the ballot. The elections board can’t prepare ballots until Anglin’s lawsuit is resolved.

Tuesday, the N.C. NAACP and Clean Air Carolina challenged four amendments:

• An amendment dealing with judicial appointments

• An amendment reconfiguring the elections board and giving the General Assembly rather than the governor power to appoint members of state boards and commissions

• An amendment requiring voters to present photo ID at polling places

• An amendment reducing the cap on state income tax rates from 10 percent to 7 percent

Cooper’s challenge targeted the first two amendments as well.

The advocacy groups said the amendments were enacted by a body of “usurpers,” because the GOP built its legislative supermajority in districts which were declared unconstitutional in court. Plaintiffs attorney Kym Hunter said the court had the authority to limit the General Assembly to passing only the bills necessary to keep the government running day to day while prohibiting actions such as constitutional amendments.

Legislative attorney Phil Strach called that notion preposterous, amounting to “an unprecedented intrusion into the legislative process.”

Hundreds of bills have been enacted since 2011, when legislative districts were redrawn. The court would face deep constitutional implications, Strach said, if it decided which bills were routine and should be allowed to stand, and which ones to throw out.

Strach cited numerous court decisions that held an illegally elected body is still permitted to act, and plaintiffs didn’t cite state cases saying illegally elected lawmakers can’t act. He also chided the plaintiffs for raising the issue in court in the final weeks of an election season when they had seven years to file a lawsuit.

Cooper — and the advocacy groups — argue the ballot questions are misleading, unfair, and incomplete. His lawyers say they’re unconstitutional because ballot questions must accurately describe the effect of the amendment.

Although the state elections board is a defendant in the Cooper lawsuit, it submitted a legal brief siding largely with the governor’s arguments. N.C. Solicitor General Matt Sawchak represented the board.

It said the proposed constitutional amendments the governor is challenging rewrite the state constitution’s separation of powers clause, overrule recent Supreme Court decisions striking down legislative attempts to reshape the elections board, and strip the governor of his core constitutional power to appoint thousands of members to hundreds of state boards and commissions.

During the hearing Sawchak argued against lawmakers’ actions.

Martin Warf, representing Berger and Moore, said the elections board was acting like a plaintiff in the case. At one point he called it an adverse defendant.

The separation of powers clause prevents government from getting too powerful, Cooper attorney John Wester said. That clause states the executive, legislative, and judicial branches of government “shall be forever separate and distinct,” he said, but the constitutional amendments would upend that status.

Warf argued that the governor can’t veto constitutional amendments, so he wants the courts to strike down constitutional amendments before they even get on the ballot. The people have the right to amend the constitution even if the governor doesn’t like the proposal, Warf said.

The General Assembly passed the constitutional amendments by a legal process, Warf said, so “these session laws are presumed to be constitutional.” The governor is bickering over language that would be placed on the ballot describing the amendments.

Wester argued amending the constitution isn’t the same as electing office holders.

“When we get to this part of the ballot we get to the cardiovascular of the democracy. It has no resemblance to deciding whether John Smith is a better candidate than Sally Smith,” Wester said.

He agreed with Warf that North Carolina has no precedent for this situation, but that’s because “no General Assembly’s ever dared to do what this one will.”

Dan Way

Carolina Journal