Wake judge declines to rule on ballot question challenges, calls for appointment of three-judge panel

A Wake County Superior Court judge referred arguments Tuesday over the ballot language for four proposed constitutional amendments to a three-judge panel.

Attorneys for Gov. Roy Cooper and the North Carolina NAACP and Clean Air Carolina challenged the ballot language in two separate lawsuits filed Monday. They appeared in court Tuesday to ask for temporary restraining orders to prevent four constitutional amendment questions from appearing on the November ballot.

They argued their challenges were “as applied” and not “facial,” which means it is their contention that the ballot language is unconstitutional as it applies to the specific constitutional amendments because it is misleading.

Judge Paul Ridgeway was unconvinced.

“I am satisfied that this is a facial constitutional challenge,” he said at the end of the hearings. “I believe that in large part these actions do seek to invalidate on a constitutional basis a section of core acts of the General Assembly.”

Ridgeway told the parties that he would consult with state Supreme Court Chief Justice Mark Martin to convene a three-judge panel – which is required for facial constitutional challenges. He added that he would relay the “great urgency and importance” of the cases and would take the temporary restraining order arguments under advisement to possibly be decided later.

Martin is in charge of appointing three-judge panels, but it is not actually known how he goes about that process.

Tuesday’s outcome is a temporary victory for GOP legislators, whose attorney, Martin Warf, asked that the cases be transferred to a three-judge panel. He, like Ridgeway, was convinced the challenges were facial.

“What the Governor and the bipartisan board are saying is that under no set of circumstances should these amendments be presented to the people,” Warf said, adding later that all the parties were ultimately asking the judge to take away the right of the people to vote on four of the six amendments.

Cooper’s lawsuit takes issue with two amendments that would “take a wrecking ball to the separations of powers clause” – one transfers his power to appoint members of state boards and commissions and reallocates it to the General Assembly and the other strips his power to appoint judicial vacancies and also gives it, although in a somewhat convoluted fashion, to the General Assembly.

The NC NAACP and Clean Air Carolina challenged the same two amendments and two more – one that would require North Carolinians to present photo identification in order to vote and another that would cap the state income tax at seven percent.

Charlotte attorney Buddy Wester, representing Cooper, said the Governor’s challenge was straightforward: the ballot questions for the two constitutional amendments that affect the executive power “mislead and fail for accuracy and completeness.”

He pointed out that the State Board of Elections and Ethics Enforcement, an entity Cooper sued, agreed that the constitutional amendments in question rewrite the separation of powers clause and that lawmakers adopted “false and misleading ballot language that conceals the true nature of these proposed amendments.”

“These ballot questions, your honor, do not fairly describe either of the ballot amendments that they would enact,” Wester said.

It is a rare move for the State Board to align itself with the very plaintiffs suing them, but Matt Sawchak, Solicitor General of the state, said this was an extraordinary and unusual situation.

“For the Board of Elections, this case creates two unique species of harm and of transgression to the constitution,” he said.

Sawchak pointed out that the ballot questions create a conflict between session law and other statutes, namely one that requires the State Board to make sure ballots are readily understood by voters and present all candidates and questions in a fair and nondiscriminatory manner.

“The question that the Board has to ask itself in this context is are these questions fair in their portrayal of the substance of what would be accomplished in the amendments,” he said. “And that’s where the Board, with regret I must say, has to express agreement.…It’s a difficult situation that we’re in because we’re caught between two obligations.”

Sawchak also loosely agreed with some of the arguments made by Kym Hunter with the Southern Environmental Law Center – she represented Clean Air Carolina and the NAACP.

Hunter raised two separate “but mutually reinforcing” arguments, one that the ballot language is vague, misleading and false and the other that current lawmakers are not constitutionally elected and are therefore usurping power, which means they don’t have the authority to pass constitutional amendments.

She used the voter ID amendment as an example to illustrate her first point. The constitutional amendment does not lay out what type of photo identification would be required for North Carolinians to vote and neither does the language for the amendment that would appear on the ballot.

“That means the voters will be going in to the voting booth having absolutely no idea what they’re voting on,” Hunter said. “Does photo mean U.S. passport? Does photo ID mean a Costco card? Does photo ID mean an expired student ID from 1957? We don’t know what it means.”

Similarly, Hunter said the language proposed for the income tax cap purports to reduce the income tax rate in North Carolina to seven percent, but the current rate established in statue is 5.5 percent.

“We believe that the way this has been written is intentionally misleading to make voters believe that their taxes are going to go down when in fact, of course, that is not what’s going to happen,” she said.

Hunter said the constitution requires a proper proposal of amendments to voters and the four in question are not complete enough to meet that provision.

She also argued that the constitutional amendments were created to further entrench the power lawmakers took illegally in the first place when they racially gerrymandered districts.

Phil Strach, who represented lawmakers only to address the usurper argument, said Democratic lawmakers were elected as a result of racial gerrymandering and that it didn’t make sense that the General Assembly was illegally constituted.

He added that several courts have rejected the usurper argument and that the ramifications of accepting it would be extreme given that in the past legislative session alone, lawmakers passed a big budget and hundreds of laws.

Hunter corrected Strach to say that a recent federal court called the usurper argument an “unsettled question of state law.”

The original deadline for the State Board to prepare ballots was Wednesday, but Judge Rebecca Holt granted temporary restraining orders Monday postponing that so she could hear arguments related to the legislature retroactively changing judicial filing rules.

Sawchak encouraged Ridgeway to intervene in the constitutional amendments as soon as possible and before votes were cast, because it was more difficult to “put the toothpaste back in the tube” after the fact.

“Now is the time,” he said.