Gov. Roy Cooper failed Tuesday afternoon to get a temporary freeze on two proposed constitutional amendments he has called legislative power grabs, with a Superior Court judge declaring that a three-judge panel should have the first chance to decide.
The Democratic governor is seeking to block two amendments that he said were written to mislead voters. The amendments would continue a trend of legislative power shifts that began even before Cooper was sworn in as governor in January 2017.
Meanwhile, the state NAACP and an environmental group called Clear Air Carolina are suing to keep four amendments from appearing on this fall’s ballots.
Wake County Superior Court Judge Paul Ridgeway said he would urge the state Supreme Court chief justice to appoint a three-judge panel quickly to decide both cases. The state is facing a ballot-printing deadline, and the Legislature wants the six proposed amendments on it.
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Ridgeway said he would defer to the three-judge panel, but left an opening in case he has to make the decision.
One of the amendments Cooper is challenging would change the way judicial vacancies are filled to limit the governor’s role. The other would take away the governor’s power to appoint members to boards and commissions and give that power to the Legislature.
The NAACP and Clean Air Carolina are targeting those two amendments plus two more that would require voters to present photo ID and cap the state income tax rate at 7 percent.
Proposed amendments to protect hunting and fishing and to expand crime victims’ rights are not part of the lawsuits.
A spokesman for Senate leader Phil Berger, an Eden Republican, called the lawsuits “absurd” in a statement.
In an unusual twist, one of the defendants in Cooper’s lawsuit, the state elections board, agreed with Cooper’s argument that the questions dealing with separation of powers and judicial appointments are misleading and should be kept off the ballot.
A state law requires the state elections board “present all questions in a fair and nondiscriminatory manner.”
Solicitor General Matt Sawchak, who is representing the elections board and its chairman, Andy Penry, said the ballot questions failed to meet that standard.
They “will be made a perpetrator of a constitutional violation,” Sawchak said.
Martin Warf, a lawyer representing Republican House Speaker Tim Moore and Senate leader Phil Berger, said there’s no statute or case law that sets a standard for ballot language.
“There’s no case that says we can hold up presentation based on the fact that the governor or the board of elections thinks they might be misleading,” Warf said.
The NAACP and Clean Air Carolina are basing their suit on the argument that 28 legislators were elected from districts that the U.S. Supreme Court determined were unconstitutional racial gerrymanders.
Legislators elected from unconstitutional districts should not be able to trigger changes to the state’s constitution “to further entrench the power they took illegally in the first place,” said Kym Hunter, a lawyer representing the NAACP and Clean Air Carolina.
Phil Strach, a lawyer representing legislators, said the argument that the Legislature is illegally constituted has been made in redistricting cases, and no court has agreed.
“I don’t view this as a very serious argument,” he said. “It certainly has not been treated as a serious argument by courts that have looked at it so far.”
The lawsuits from Cooper and the NAACP were two of three legal challenges against the General Assembly filed on Monday. The third lawsuit, filed by Supreme Court candidate Chris Anglin, challenges a different law that would force Anglin to be listed without his political party on the ballot, while his opponents would continue to have their parties listed.
Anglin said he’s being targeted because he’s a Republican who is not the preferred candidate of the state GOP, while Republican legislative leaders have said Anglin, who switched parties right before entering the race, is not a real Republican and shouldn’t be able to list his party. Anglin won a temporary victory in court Monday, and his case is scheduled to come up again next week.