N.C. House Speaker Tim Moore and state Senate leader Phil Berger, knowing their veto-proof control of the legislature is in jeopardy, are rushing to do last-minute surgery on the state Constitution using a hammer and a screwdriver.
They’re pushing six constitutional amendments that range from unnecessary to dangerous. And in the case of the two amendments that would strip power from the governor, they want to do the surgery in the dark.
Lawyers for Moore and Berger told a three-judge panel in Wake County Wednesday that when the legislature proposes amendments to the state Constitution, the language isn’t subject to outside editing for clarity or accuracy. The legislature alone, they say, is the arbiter of how a ballot question is written and neither the courts, the governor nor the public can demand that the wording be clear about an amendment’s effect.
This imperial notion is the core of the Republican legislative leaders’ response to a lawsuit brought by Democratic Gov. Roy Cooper that challenges two of the proposed amendments scheduled to appear on the November ballot. Cooper’s lawyers contend in court documents that the ballot questions “are difficult to understand accurately, are written to discriminate in favor of one outcome, and are unfair to the electorate.”
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Five former governors, including Republicans Jim Martin and Pat McCrory, have come out in opposition to the two amendments. Martin called them a “scheme” to shift the power from the governor’s office to the legislature that “must be stopped.”
One amendment would strip the governor of the power to appoint judges to fill vacancies. The other would take away the governor’s control of the state election’s board and strip his power to make appointments to hundreds of state boards and commissions.
The wording of the first makes a pejorative reference to ending judicial appointments based on “political influence” and instead calls for the use of a “nonpartisan, merit-based” process. The second proposes to “clarify the appointment authority of the Legislative and Judicial branches” without mentioning how the change would reduce the governor’s appointment authority.
Voters would be puzzled by these amendment questions at the end of a long ballot, but Moore and Berger welcome that confusion. They assume a majority of voters will support one change that ends “political influence” on judicial appointments (although it transfers that influence to the legislature) and another that is modestly described as clarifying existing law (even though it greatly weakens the governor and upends the balance of legislative and executive powers).
In court documents, lawyers for Moore and Berger contend that lawmakers can write the ballot wording any way they like. They say: “creation of the language for the ballot is textually granted by the Constitution to the General Assembly. Thus, a semantic debate about the language used for the ballot question is for the halls of the General Assembly, not the briefs and arguments of counsel in Court.”
Even if the wording is confusing or misleading, the defendants’ brief says, voters can dig deeper and determine what the change is really about. “Plaintiff does not give voters enough credit,” it says. “Voters can read the text of the proposed amendments and determine the effect for themselves.”
This is Mad Hatter stuff. A ballot question proposing a constitutional amendment shouldn’t be a riddle. Or, even worse, a lie. The judiciary and executive branches and members of the public have a right to demand that amendment questions put before voters be clearly expressed and honest about the impact of the changes proposed.