You might have noticed something if you looked closely at the challenges to four proposed Republican constitutional amendments that will appear on the North Carolina ballot this November: For the most part, those challenges don’t involve the actual amendments.
There’s a reason for that: Such challenges usually fail across the U.S., and in North Carolina, the bar is even higher for success. Voters who want the N.C. amendments killed might be better off putting their hopes in something other than the courts.
Some background: N.C. Republicans passed six proposed amendments to the constitution this year, including two that would give state lawmakers much of the governor’s power to appoint judges, regulators and members of state boards and commissions. On Saturday evening, N.C. Gov. Roy Cooper challenged those two amendments, which he said would “take a wrecking ball to the separation of powers” in North Carolina. He’s right.
On Monday, the NAACP and Clean Air Carolina filed a joint challenge, separate from Cooper’s, that questioned the validity of the same two amendments, plus two others that called for a voter ID law and a cap on the N.C. income tax. Like Cooper, the NAACP and Clean Air Carolina didn’t challenge the amendments themselves, but rather the vague and deceptive ballot language describing the amendments. (The NAACP suit also challenged the standing of the Republican legislature to pass a bill putting the amendment to a vote.)
Why not challenge the actual substance of the amendments? Because there are no cases in which a judge has invalidated a state constitutional amendment on substantive grounds, so long as the amendment didn’t violate federal law. “The people are seen as the ultimate interpreters of state constitutions and in a way judges are hesitant to challenge,” says Wake Forest University professor John Dinan, a state Constitution expert, told the editorial board Monday.
That leaves ancillary issues like ballot language, and if that seems like a bit of a Hail Mary, well, yes. “State courts have generally set a very high bar for challengers seeking removal of amendments from the ballot,” says Dinan, “especially when considering claims that ballot language crafted by legislators is inaccurate.”
There are exceptions, including a Florida circuit court judge ruling just last week that an anti-dog-racing amendment should be removed from the ballot because of inaccurate language. But the hurdle for challengers is higher in North Carolina than in most states, Dinan says, thanks to our constitution explicitly saying that the legislature is responsible for determining how and when amendments are presented on the ballot. Other states give legislators less discretion on ballot language — and in many other areas.
As for the NAACP/Clean Air Carolina contention that Republican lawmakers have no standing to pass the proposed amendments because of a gerrymandering case pending in the courts, Dinan and others say that’s likely to be treated less seriously by the courts.
Make no mistake, the language on the proposed N.C. amendments is unclear — and intentionally so. Republicans want to fool voters into giving them the governor’s powers, along with a blank canvas on which to create another oppressive voter ID law. The best way to beat the bad amendments, however, is the old-fashioned way — by getting the word out to voters that neither the amendments nor the lawmakers who crafted them have our best interests in mind.