The courts don’t have a role in determining what constitutional amendments appear on the ballot, a lawyer representing North Carolina legislative leaders told a three-judge panel Wednesday.
Martin Warf is defending House Speaker Tim Moore and Senate leader Phil Berger, both Republicans, in lawsuits to stop proposed constitutional amendments from going to voters.
Democratic Gov. Roy Cooper is fighting two amendments that he and others say would shift power from the executive office to the legislature.
Cooper says the wording that voters will see on ballots is misleading and doesn’t hint at the scope of changes they would trigger. One amendment would strip governors from their power to appoint members to hundreds of state boards and commissions and give that power to the legislature. The other would limit governors’ abilities to appoint judges to court vacancies.
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All five living former governors, Democrats and Republicans, are supporting Cooper. They submitted a friend of the court brief supporting his case, and they held a news conference Monday where former Gov. Jim Martin, a Republican, called the amendments “a scheme” that threatens the balance of political power.
The NAACP and Clean Air Carolina are suing over those two amendments and two more: an amendment that would add a constitutional requirement for voter photo ID, and another that would lower the maximum state income tax rate from 10 percent to 7 percent.
Warf said the state constitution limits decisions on amendments to legislators and voters. Legislators decide whether to put proposals on the ballot, and voters decide whether to adopt them.
The state “does not permit what the Governor is asking the court to do — deny the people of North Carolina the opportunity to amend the constitution,” he said.
Lawyers for Cooper and the State Board of Elections said legislators put misleading language on the ballot so voters will be tricked into giving the legislature more power.
“What is going on is self-dealing on the part of the General Assembly to enhance its own power through these constitutional amendments,” said Adam Doerr, one of Cooper’s lawyers.
Warf said the ballot questions are not misleading.
A panel of three Superior Court judges is hearing the cases. They are making their decision whether to allow the questions on the ballot with the knowledge that the loser will appeal.
“The three of us are simply the gate through which all of you are about to pass,” said Judge Forrest Donald Bridges.
At the end of the hearings, the judges were preparing to sign an order that would prevent the State Board of Elections from printing ballots until Sept. 1 — the drop-dead federal deadline — unless a court decided before that date that ballots could be printed. The judges told the two sides to work out the details.
Kym Hunter, a lawyer representing the NAACP and Clean Air Carolina, said the legislature made “a deliberate attempt to perpetuate what is essentially a fraud with this ballot language.”
Hunter argued that the legislature is illegally constituted and cannot do something as important as propose constitutional amendments.
Last year, the U.S. Supreme Court agreed that 28 districts were unconstitutional racial gerrymanders. To remedy the problems, election boundaries were redrawn for 117 of 170 districts, Hunter said.
“We’ve been governed by a body that is not representative of the people of North Carolina,” Hunter said. The amendments are the “last-ditch attempt to further entrench power it got illegally,” she said.
Matt Abee, a lawyer representing Moore and Berger, said invalidating the ballot questions based on the “usurper doctrine” would be unprecedented.