In a rare pair of late-night orders, the North Carolina Supreme Court on Wednesday denied attempts by Democratic Gov. Roy Cooper and the N.C. NAACP to stop proposed constitutional amendments from being put before voters in November.
And by Thursday morning, at least one of those cases had new life. Cooper filed a new lawsuit in Wake County Superior Court, challenging the constitutionality of two of the six amendments that the Republican-led legislature wants voters to approve.
The first hearing in this new case is scheduled for Friday at 11 a.m.
The two amendments in question would permanently take away some of the governor’s powers and grant them to the legislature, and could also affect how future elections are conducted. Voters who have been following the amendment controversy might be having deja vu, since this all happened earlier this month, too. Cooper sued over these same amendments and a little more than a week ago he won that lawsuit. The court agreed with Cooper that the way legislators had chosen to describe the amendments on the ballot would confuse or mislead voters as to what the amendments actually did.
Legislators came back to Raleigh and on Monday approved tweaks to the amendments and their ballot descriptions, over the objections of Democrats who said they didn’t make enough changes. Cooper’s new lawsuit echoes that argument.
“These ballot questions are neither fair nor accurate,” Cooper’s legal filing states. “They are false. They are misleading. They are incomplete. And they are argumentative. Ultimately, these ballot questions do not fairly advise the voters of what is at stake or facilitate an intelligent, independent decision on the proposed amendments.”
Within minutes, Senate leader Phil Berger, a Republican from Eden, issued a statement criticizing Cooper for suing again, as the deadline for the state to print its ballots for the November election is just days away. He said Cooper should have stopped when he was rejected by the Supreme Court Wednesday night.
“Governor Cooper tried to stop 6 million people from voting to amend their own constitution without so much as a hearing, and the Supreme Court rightly rejected him and the NAACP,” Berger said.
While these lawsuits are going on — as well as another lawsuit, in which a federal court just ruled Monday that the state’s districts for all 13 members of the U.S. House of Representatives are unconstitutionally gerrymandered — courts have stopped the state elections board from printing any ballots for the November election.
“The clock is ticking to print ballots before the federally-mandated deadline, but the Board of Elections can’t move forward until the court rules or Governor Cooper ends his suit,” Berger said.
However, the Supreme Court’s denial of Cooper and the N.C. NAACP was procedural, and not based on the facts of their cases. Cooper and the NAACP had been seeking to bypass a second trial, having each won once already. Cooper’s own petition to the Supreme Court also noted the fast-approaching deadline for printing ballots.
But the Supreme Court decided that skipping trial wasn’t acceptable, and that the new case needs to go through all the normal steps in the legal process. That left the door open for the case to go back before the Supreme Court again.
“The court did not dismiss the merits of the argument,” said Ford Porter, a spokesman for the governor.
In the meantime, it wasn’t immediately clear Thursday morning if the NAACP had re-filed its own separate legal complaints at trial. That group is seeking to throw out the same two constitutional amendment proposals that Cooper has challenged, as well as two others that would institute a voter ID requirement and cap the state’s income tax rate lower than it is already.
While voters wait for the final word on those four amendments, there are two others that haven’t been challenged in court and will almost certainly appear on the ballot, barring any last-minute lawsuits. One of those would re-affirm people’s right to hunt and fish, which has been described as an attempt to mobilize conservative voters in a midterm election when Republican President Donald Trump’s unpopularity is expected to bring many Democrats to the polls.
The other would expand the rights of crime victims and is part of a national push for changes called “Marsy’s Law.” Other states that already passed it have experienced high costs and protests from prosecutors and defense attorneys alike, according to reporting by The Marshall Project, but in North Carolina its legislative backers said they think their version would avoid similar problems.