Updated 9:15 a.m. | Aug. 8, 2018
A state judge declined Tuesday to give immediate relief to Gov. Roy Cooper and interest groups who want proposed constitutional amendments off fall ballots because they argue referendum language written by Republican lawmakers is false and misleading.
The Democratic governor, state NAACP and Clean Air Carolina have asked in a pair of lawsuits to block questions for two amendments that would swing powers over filling vacant judgeships and controlling board and commission appointments from the executive branch to the legislature. They say the questions conceal how dramatic the amendments would change state government if approved.
"These ballot questions do not fairly describe either of the ballot amendments that they would enact," said John Wester, a private attorney representing Cooper, told Wake County Superior Court Judge Paul Ridgeway. "Both of them would take a wrecking ball to the constitution's separation of powers principle ... and would strip the governor of core constitutional powers."
The interest groups also want removed two additional amendment questions that would enshrine a mandate for photo identification to vote in person and would reduce the income tax rate cap. In all, Republicans approved six amendment questions for November.
After nearly three hours of arguments, Ridgeway decided the case needed to go to a three-judge panel, in keeping with rules requiring one when allegations are made that a challenged law is always unconstitutional. Cooper and the groups argued their cases were narrower in scope, so Ridgeway could act on his own.
Ridgeway said he reserved the right, however, to decide on whether to block the questions temporarily if the judicial panel — named by Chief Justice Mark Martin — can't act quickly, because "this is a matter of great urgency and importance."
State elections officials are days away from finalizing language for statewide election items so ballots can be printed. Another judge considering unrelated lawsuits involving party labels for judicial candidates told the state elections board not to certify or print ballots for now.
Martin Warf, a lawyer for House Speaker Tim Moore and Senate leader Phil Berger — named defendants in the amendment lawsuits — argued Tuesday a three-judge panel was necessary.
Regardless, he said, the legislature complied with the requirements in the state constitution for approving amendment proposals — requiring support from three-fifths of the members in each chamber. Cooper and other critics can express their unhappiness with the questions, he said.
"By no measure do I contend that these are misleading in the least," Warf told Ridgeway. "But where is it that there is a standard to apply the language on the ballot as to whether it accurately represents what is going on or not?"
The state elections board is a defendant in both amendment lawsuits but the panel hasn't taken a position in the case. Still, Democratic Attorney General Josh Stein's office filed a response on the board's behalf siding with Cooper. North Carolina Solicitor General Matt Sawchak told Ridgeway the questions run counter to the board's mandate to require ballots "present all candidates and questions in a fair and nondiscriminatory manner."
The state NAACP and Clean Air Carolina made more sharp arguments in their own lawsuit, saying the General Assembly is barred from even proposing the amendments to voters because it's illegally constituted.
Kym Hunter, the groups' lawyer, said that's because federal courts have declared the district maps that elected this edition of the legislature included illegal racial gerrymanders. Phil Strach, another lawyer representing GOP lawmakers, said the current General Assembly is a lawful governing body, he added, pointing out that federal judges allowed the 2016 elections to continue under the old maps.