Surely, there must be a point at which the language that is slated to appear on the state ballot with respect to a proposed constitutional amendment bears so little relationship to what the amendment would actually do, that the courts simply must step in.
Think about it: What would happen if lawmakers voted to place language on the ballot that purported, say, to “clarify” duties and responsibilities of various officials with respect to “managing state investments,” while the actual amendment language (which was not included on the ballot) abolished the office of state treasurer?
Could that possibly be lawful or constitutional?
What if the hidden language abolished the office of Attorney General or even the Governor?
Amazingly, according to Senate President Pro Tem Phil Berger and House Speaker Tim Moore, there is no limitation in this area and no role for the state courts to play in assessing the matter.
In a brief the two Republican leaders filed on Friday with the three-judge panel considering constitutional challenges to four of the six amendments, they argue that the question of what appears on the ballot is wholly within the discretion of the General Assembly.
This is from the Berger-Moore brief:
These ballot questions are not misleading. Moreover, Article XIII, Section 4’s plain text gives the General Assembly—not the Governor and not the judiciary—the exclusive right to submit the proposed amendments (at a time and in a manner chosen in the General Assembly’s sole discretion) to the voters.”
The brief goes on to argue that Americans have no “fundamental right to vote,” but only a “right to vote on equal terms” – something they contend will be fully satisfied because the amendment descriptions will be the same – incomplete and inadequate, but the same – on all ballots.
This is truly Orwellian double-speak of the lowest order.
But wait, it gets worse. On the same day that Berger and Moore filed their court brief, state Republican Party executive director and all-purpose conservative attack dog Dallas Woodhouse issued a preemptive Trump-like attack on any judges who might think of ruling against Berger and Moore’s fine print putsch.
Woodhouse said that such a ruling could lead to the impeachment of judges and a revival of GOP plans to pack the state Supreme Court and would bring on a “constitutional crisis.”
This kind of talk is more than just wrong; it’s dangerous. And the fact that neither Berger nor Moore has issued any kind of direct condemnation or repudiation in the days that have followed makes it that much worse.
When two of the state’s most powerful elected leaders, along with the paid mouthpiece for their political party, allow threats of this kind to linger out there in the atmosphere like some kind of a toxic fog, the constitutional crisis is already well underway.
Of course, the simplest and most obvious way to funnel said crisis genie back into the bottle where it belongs is for the state courts to do their duty. The grounds for such action are plainly evident.
The language in the amendments – particularly for the two that seize power from the Governor and vest it in the General Assembly – is clearly and outrageously misleading.
A recent article entitled “North Carolina Legislature’s Power Grab Disregards Basic Principles of Democracy,” by attorneys Wendy Wesier and Daniel Weiner at the Brennan Center for Justice (the same group that filed the “friend of the court” brief to which Berger and Moore’s brief was attempting to respond) summed things up this way:
…the Legislature voted to require ballot language for these two amendments that completely obscures the intent. The amendment that strips the governor of his appointment powers over the election board and other state agencies is described as a housekeeping measure to ‘clarify the appointment authority of the Legislative and Judicial Branches.’ The judicial vacancies amendment appears as a proposal to fill vacancies through ‘a nonpartisan merit-based system that relies on professional qualifications instead of political influence’ even though it would give the Legislature carte blanche to appoint judges based on politics.”
A recent editorial in Raleigh’s News & Observer offered this succinct assessment:
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.”
Indeed they do. If democratic government is to retain any real meaning in these trying times, elected officials must be prevented from intentionally deceiving the public about the laws passed in their name – especially constitutional amendments that alter the fundamental rules of society.
If the courts fail to act and draw some kind of meaningful line, North Carolina’s democracy will be dangling by a very slender thread.