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State elections board distances itself from AG’s defense in amendments lawsuits

August 8th, 2018

— The state Attorney General’s Office is representing the state elections board in lawsuits challenging several proposed constitutional amendments to go before voters this November. But the board’s attorney made clear Wednesday that the views expressed in court aren’t necessarily those of the board.

Gov. Roy Cooper, the NAACP and an environmental group have charged that four of six proposed amendments on the ballot this fall are intentionally misleading and should be excluded.

During a court hearing Tuesday, Solicitor General Matt Sawchak said the State Board of Elections and Ethics Enforcement, which is a defendant in the two lawsuits, essentially agrees with the position that the amendments are misleading and shouldn’t be put on the ballot as is.

“We don’t do this happily, but it’s a difficult situation that we’re in because we’re caught between two obligations,” Sawchak said.

Although the elections board must carry out all laws passed by the General Assembly, state law also requires it to “ensure proper content of ballots,” he said. That means ballots should be “readily understandable by voters” and that all ballot questions, such as constitutional amendments “be presented in a fair and non-discriminatory manner.”

To be required to approve a ballot with inaccurate amendment descriptions, Sawchak said, would force the board to break that law.

“It is a fundamental principle that our citizens have a right not to be misled by a ballot that has the aura of official approval of the government,” he said.

North Carolinians will vote on six constitutional amendments

Josh Lawson, general counsel for the state board, issued a statement Wednesday reaffirming the board’s neutrality in the legal dispute.

“Consistent with the Agency’s longstanding practice, our Board has not adopted a position on the merits while the Attorney General litigates the matter under his independent authority,” Lawson said in the statement.

Sawchak works for Democratic Attorney General Josh Stein, and Dallas Woodhouse, executive director of the North Carolina Republican Party, questioned whether Stein’s office went rogue and substituted its own opinions about the proposed amendments for those of elections board members.

“Stein’s decision to abandon his statutory responsibility to defend the laws of the land and join the Governor’s partisan crusade to prevent the voters from having their say on constitutional amendments is shocking and unlawful,” Woodhouse said in a news release. “By sending your lawyers to argue against the General Assembly’s undisputed authority to write amendment ballot language, you have violated your core duties.”

Elections board Chairman Andy Penry said in an email that the Attorney General’s Office has the duty to represent board members and employees in lawsuits, and Lawson agreed that the office has represented the board in several previous court actions.

State elections director Kim Strach is married to attorney Phil Strach, who represents Republican legislative leaders in the amendments dispute, but Lawson denied any political motivation for asserting that the board remains neutral in the case.

Laura Brewer, a spokeswoman for Stein, said Sawchak and others in the Attorney General’s Office have “consulted closely” with the elections board in the case.

“We are confident our clients are aware of and support the action we are taking in this litigation,” Brewer said in an email.

Cooper is challenging amendments that would shift the power to appoint members of dozens of state boards and commissions and to fill judicial vacancies from the governor to the General Assembly. His lawyers argue that voters aren’t told of what amounts to a major shift in the separation of powers in state government by the language on the ballot:

  • “Constitutional amendment to establish a bipartisan Board of Ethics and Elections to administer ethics and election laws, to clarify the appointment authority of the Legislative and the Judicial Branches, and to prohibit legislators from serving on boards and commissions exercising executive or judicial authority.”
  • “Constitutional amendment to implement a nonpartisan merit-based system that relies on professional qualifications instead of political influence when nominating Justices and judges to be selected to fill vacancies that occur between judicial elections.”

“[Voters] can exercise their rights and power only if they are fairly and honestly informed about the amendment before them,” Cooper attorney John Wester said during Tuesday’s court hearing.

The state NAACP and Clear Air Carolina are challenging those two amendments, as well as amendments that would lower the cap on the state income tax and require photo identification to vote. The wording on the tax cap amendment suggests to voters that their taxes will go down if the amendment passes, while the voter ID proposal doesn’t include any information about which IDs will be accepted and which ones won’t, said Kym Hunter, a lawyer with the Southern Environmental Law Center.

Martin Warf, an attorney for lawmakers, said there’s no standard for what language could be considered misleading, so the courts should dismiss the lawsuits.

Supreme Court Chief Justice Mark Martin has assigned Superior Court Judges Forrest Donald Bridges of Cleveland County, Thomas Lock of Johnston County and Jeffrey Carpenter of Union County were appointed to handle the case, but no date for a court hearing has been set.

Article source: https://www.wral.com/state-elections-board-distances-itself-from-ag-s-defense-in-amendments-lawsuits/17755763/

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