North Carolina Judicial Selection for Midterm Vacancies Amendment (2018)

Elections in North Carolina, 2018

• General election: Nov. 6
• Voter registration deadline: Oct. 12
• Early voting: Oct. 17 - Nov. 3
• Absentee voting deadline: Nov. 6

• Online registration: No
• Same-day registration: No
• Voter ID: No
• Poll times: 6:30 a.m. to 7:30 p.m.

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North Carolina Judicial Selection Amendment
Election date November 6, 2018
Topic State judiciary
Status d Defeated
Type Constitutional amendment	Origin State legislature
List of North Carolina measuresNorth Carolina Income Tax CapNorth Carolina Judicial SelectionNorth Carolina Appointments to Elections BoardNorth Carolina Marsy's LawNorth Carolina Right to Hunt and FishNorth Carolina Voter IDSubmit

The North Carolina Judicial Selection for Midterm Vacancies Amendment was on the ballot in North Carolina as a legislatively referred constitutional amendment on November 6, 2018. It was defeated.

A "yes" vote supported creating a new process of filling judicial vacancies that occur between judicial elections for state courts involving a commission selecting candidates, legislators narrowing the list of candidates down to two, and the governor selecting the final nominee.

A "no" vote opposed creating a new process of filling judicial vacancies that occur between judicial elections for state courts, thus allowing the governor to continue to fill vacant seats on state courts.

Election results

North Carolina Judicial Selection Amendment
Result		Votes	Percentage
Yes		1,183,080	33.15%
No		2,385,696	66.85%

Results are officially certified.

Source

Overview

What changes would the measure have made to the North Carolina Constitution?

The ballot measure would have created a new process of filling judicial vacancies that occur between judicial elections for state courts. As of 2018, the governor fills vacant seats, and the appointee serves until the next judicial election.

The ballot measure would have created a nine-member commission, called the Nonpartisan Judicial Merit Commission, to select potential appointees. Members of the commission would have been appointed by the state legislature, governor, and supreme court chief justice, under this amendment. The amendment left the process of how to select commission members up to the legislature to establish in statute.

The commission was designed to refer a list of potential appointees to the state legislature. The legislature would have then selected two of the nominees. The governor would have then picked one of the two nominees to fill the vacancy.

If the governor failed to make an appointment within 10 days after receiving the list of nominees from the legislature, the legislature would have been empowered to elect, by a simple majority vote of each chamber, an appointee to fill the vacancy.

If a vacancy occurred while the legislature was not in session, the supreme court chief justice would have been authorized to select an individual to fill the vacancy.

Text of measure

Ballot title

The ballot title was as follows:

“

[   ] For [   ] Against Constitutional amendment to change the process for filling judicial vacancies that occur between judicial elections from a process in which the Governor has sole appointment power to a process in which the people of the State nominate individuals to fill vacancies by way of a commission comprised of appointees made by the judicial, executive, and legislative branches charged with making recommendations to the legislature as to which nominees are deemed qualified; then the legislature will recommend at least two nominees to the Governor via legislative action not subject to gubernatorial veto; and the Governor will appoint judges from among these nominees.

”

Ballot summary

The ballot summary was as follows:

“

Legislature to Control Judicial Appointments This proposed constitutional amendment would create a new process for filling judicial vacancies. The Legislature would play the dominant role in this process. In North Carolina, the people have a constitutional right to elect judges. Currently, when a judge leaves office before the end of his or her term, the Governor appoints a new judge. In most instances, the person who is appointed by the Governor holds office for less than 2 years, until the next general election. This proposed amendment would take away the Governor’s current authority to select a replacement judge. The amendment would give the Legislature most of the control over judicial appointments. Under the amendment, the Legislature chooses 2 or more finalists after they are reviewed by a commission to determine if they are qualified. A person is qualified to hold the office of Justice or Judge if the person is an attorney who is licensed to practice law in North Carolina, is registered to vote, and has not yet reached mandatory retirement age. The Governor then must choose one of the 2 or more finalists that the Legislature selected. If the Governor does not appoint someone from the Legislature’s approved list within 10 days, the Legislature elects someone to fill the vacancy. Under the amendment, the Governor cannot veto any bill that recommends or selects the person to fill a judicial vacancy. This proposed amendment weakens voters’ constitutional right to elect judges by lengthening how long an appointed judge will serve before an election is held. Today, appointed judges serve until the next election. If the amendment passes, appointed judges would serve up to 4 years before voters could elect or replace them. The amendment applies to judges on the State Supreme Court, Court of Appeals, and trial courts in each county. The Legislature has the constitutional authority to add 2 additional seats to the Supreme Court. If this amendment passes, then the Legislature could use this newly-granted power to choose unelected Supreme Court Justices for 2 newly created vacant seats. These legislatively-chosen judges would serve for up to 4 years before voters could elect or replace them.

”

Constitutional changes

See also: North Carolina Constitution

The ballot measure would have amended Article II and Article IV of the North Carolina Constitution. The following underlined text wold have been added and struck-through text would have been deleted:

Note: Hover over the text and scroll to see the full text.

Article II. Sec. 22. Action on Bills, Subsection (5).

(5) Other exceptions. Every bill:

(a) In which the General Assembly makes an appointment or appointments to public office and which contains no other matter;

(b) Revising the senate districts and the apportionment of Senators among those districts and containing no other matter;

(c) Revising the representative districts and the apportionment of Representatives among those districts and containing no other matter; or

(d) Revising the districts for the election of members of the House of Representatives of the Congress of the United States and the apportionment of Representatives among those districts and containing no other matter,;

(e) Recommending a nominee or nominees to fill a vacancy in the office of Justice and Judge of the General Court of Justice, in accordance with Section 23 of Article IV of this Constitution and containing no other matter; or

(f) Electing a nominee or nominees to fill a vacancy in the office of Justice or Judge of the General Court of Justice, in accordance with Section 23 of Article IV of this Constitution and containing no other matter,

shall be read three times in each house before it becomes law and shall be signed by the presiding officers of both houses.

Article IV. Sec. 10. District Courts.

(1) The General Assembly shall, from time to time, divide the State into a convenient number of local court districts and shall prescribe where the District Courts shall sit, but a District Court must sit in at least one place in each county. District Judges shall be elected for each district for a term of four years, in a manner prescribed by law. When more than one District Judge is authorized and elected for a district, the Chief Justice of the Supreme Court shall designate one of the judges as Chief District Judge. Every District Judge shall reside in the district for which he is elected.

(2) For each county, the senior regular resident Judge of the Superior Court serving the county shall appoint from nominations submitted by the Clerk of the Superior Court of the county, one or more Magistrates who shall be officers of the District Court. The initial term of appointment for a magistrate shall be for two years and subsequent terms shall be for four years.

(3) The number of District Judges and Magistrates shall, from time to time, be determined by the General Assembly. Vacancies in the office of District Judge shall be filled for the unexpired term in a manner prescribed by law. Vacancies in the office of Magistrate shall be filled for the unexpired term in the manner provided for original appointment to the office, unless otherwise provided by the General Assembly.

Article IV. Sec. 18. District Attorney and Prosecutorial Districts.

(1) District Attorneys. The General Assembly shall, from time to time, divide the State into a convenient number of prosecutorial districts, for each of which a District Attorney shall be chosen for a term of four years by the qualified voters thereof, at the same time and places as members of the General Assembly are elected. Only persons duly authorized to practice law in the courts of this State shall be eligible for election or appointment as a District Attorney. The District Attorney shall advise the officers of justice in his district, be responsible for the prosecution on behalf of the State of all criminal actions in the Superior Courts of his district, perform such duties related to appeals therefrom as the Attorney General may require, and perform such other duties as the General Assembly may prescribe.

(2) Prosecution in District Court Division. Criminal actions in the District Court Division shall be prosecuted in such manner as the General Assembly may prescribe by general law uniformly applicable in every local court district of the State.

(3) Vacancies. All vacancies occurring in the office of District Attorney shall be filled by appointment of the Governor, and the appointees shall hold their places until the next election for members of the General Assembly that is held more than 60 days after the vacancy occurs, when elections shall be held to fill the offices. When the unexpired term in which a vacancy has occurred expires on the first day of January succeeding the next election for members of the General Assembly, the Governor shall appoint to fill that vacancy for the unexpired term of the office.

Article IV. Sec. 19. Vacancies

Unless otherwise provided in this Article, all vacancies occurring in the offices provided for by this Article shall be filled by appointment of the Governor, and the appointees shall hold their places until the next election for members of the General Assembly that is held more than 60 days after the vacancy occurs, when elections shall be held to fill the offices. When the unexpired term of any of the offices named in this Article of the Constitution in which a vacancy has occurred, and in which it is herein provided that the Governor shall fill the vacancy, expires on the first day of January succeeding the next election for members of the General Assembly, the Governor shall appoint to fill that vacancy for the unexpired term of the office. If any person elected or appointed to any of these offices shall fail to qualify, the office shall be appointed to, held and filled as provided in case of vacancies occurring therein. All incumbents of these offices shall hold until their successors are qualified.

Article IV. Sec. 23. Merit selection; judicial vacancies.

(1) All vacancies occurring in the offices of Justice or Judge of the General Court of Justice shall be filled as provided in this section. Appointees shall hold their places until the next election following the election for members of the General Assembly held after the appointment occurs, when elections shall be held to fill those offices. When the vacancy occurs on or after the sixtieth day before the next election for members of the General Assembly and the term would expire on December 31 of that same year, the Chief Justice shall appoint to fill that vacancy for the unexpired term of the office.

(2) In filling any vacancy in the office of Justice or Judge of the General Court of Justice, individuals shall be nominated on merit by the people of the State to fill that vacancy. In a manner prescribed by law, nominations shall be received from the people of the State by a nonpartisan commission established under this section, which shall evaluate each nominee without regard to the nominee's partisan affiliation, but rather with respect to whether that nominee is qualified or not qualified to fill the vacant office, as prescribed by law. The evaluation of each nominee of people of the State shall be forwarded to the General Assembly, as prescribed by law. The General Assembly shall recommend to the Governor, for each vacancy, at least two of the nominees deemed qualified by a nonpartisan commission under this section. For each vacancy, within 10 days after the nominees are presented, the Governor shall appoint the nominee the Governor deems best qualified to serve from the nominees recommended by the General Assembly.

(3) The Nonpartisan Judicial Merit Commission shall consist of no more than nine members whose appointments shall be allocated between the Chief Justice of the Supreme Court, the Governor, and the General Assembly, as prescribed by law. The General Assembly shall, by general law, provide for the establishment of local merit commissions for the nomination of judges of the Superior and District Court. Appointments to local merit commissions shall be allocated between the Chief Justice of the Supreme Court, the Governor, and the General Assembly, as prescribed by law. Neither the Chief Justice of the Supreme Court, the Governor, nor the General Assembly shall be allocated a majority of appointments to a nonpartisan commission established under this section.

(4) If the Governor fails to make an appointment within 10 days after the nominees are presented by the General Assembly, the General Assembly shall elect, in joint session and by a majority of the members of each chamber present and voting, an appointee to fill the vacancy in a manner prescribed by law.

(5) If the General Assembly has adjourned sine die or for more than 30 days jointly as provided under Section 20 of Article II of this Constitution, the Chief Justice shall have the authority to appoint a qualified individual to fill a vacant office of Justice or Judge of the General Court of Justice if any of the following apply:

(a) The vacancy occurs during the period of adjournment.

(b) The General Assembly adjourned without presenting nominees to the Governor as required under subsection (2) of this section or failed to elect a nominee as required under subsection (4) of this section.

(c) The Governor failed to appoint a recommended nominee under subsection (2) of this section.

(6) Any appointee by the Chief Justice shall have the same powers and duties as any other Justice or Judge of the General Court of Justice, when duly assigned to hold court in an interim capacity, and shall serve until the earlier of:

(a) Appointment by the Governor.

(b) Election by the General Assembly.

(c) The first day of January succeeding the next election of the members of the General Assembly, and such election shall include the office for which the appointment was made.

However, no appointment by the Governor or election by the General Assembly to fill a judicial vacancy shall occur after an election to fill that judicial office has commenced, as prescribed by law.

Readability score

See also: Ballot measure readability scores, 2018

Using the Flesch-Kincaid Grade Level (FKGL and Flesch Reading Ease (FRE) formulas, Ballotpedia scored the readability of the ballot title and summary for this measure. Readability scores are designed to indicate the reading difficulty of text. The Flesch-Kincaid formulas account for the number of words, syllables, and sentences in a text; they do not account for the difficulty of the ideas in the text. The legislature and the NC Constitutional Amendments Publication Commission wrote the ballot language for this measure. The FKGL for the ballot title is grade level 46, and the FRE is -55.7. The word count for the ballot title is 101, and the estimated reading time is 26 seconds. The FKGL for the ballot summary is grade level 8, and the FRE is 54. The word count for the ballot summary is 352, and the estimated reading time is 1 minute and 33 seconds. In 2018, for the 167 statewide measures on the ballot, the average ballot title or question was written at a level appropriate for those with between 19 and 20 years of U.S. formal education (graduate school-level of education), according to the FKGL formula. Read Ballotpedia's entire 2018 ballot language readability report here.

Support

Supporters

• Sen. Warren Daniel (R-46)
• Sen. Paul Newton (R-36)
• Sen. Shirley Randleman (R-30)

Arguments

• State Senators Warren Daniel (R-46), Paul Newton (R-36), and Shirley Randleman' (R-30) said, "It is also clear that voters want a transparent and accountable process for selecting judges — and one area where there currently is no transparency or accountability is the process for filling judicial vacancies, where governors have unrestrained power to place whomever they want on the bench, with no checks and balances."

Opposition

Opponents

Officials

• Gov. Roy Cooper (D)
• Rep. Marcia Morey (D-30)

Former officials

• Gov. Pat McCrory (R)
• Gov. Beverly Perdue (D)
• Gov. Mike Easley (D)
• Gov. Jim Hunt (D)
• Gov. Jim Martin (R)

Parties

• North Carolina Democratic Party

Arguments

• Rep. Marcia Morey (D-30) said, "This amendment would give legislators new powers to dictate which judges the governor must appoint. These judges could serve for up to four years without any input from voters. What the supermajority is really scared of is that the voters will elect a justice to the N.C. Supreme Court whom they don’t like. If this amendment passes, a special legislative session could add two more justices, appointed by legislature. This legislative power grab is opposed by all five former Republican and Democratic governors."

Campaign finance

Total campaign contributions:
Support:	$0.00
Opposition:	$9,266,902.46

See also: Campaign finance requirements for North Carolina ballot measures

There was no ballot measure committee registered in support of the measure.

By the People and Stop Deceptive Amendments were registered in opposition to the measure, as well as each of the other five amendments on the ballot in North Carolina. Therefore, the committees were raising and spending funds on each of the measures. Together, the committees had raised $9.27 million and expended $9.17 million.

Opposition

Committees in opposition to the Judicial Selection for Midterm Vacancies Amendment Opposing committees Cash contributions In-kind services Cash expenditures By the People $1,100,342.25 $327,978.21 $1,092,925.74 Stop Deceptive Amendments $7,819,291.00 $19,291.00 $7,731,669.00 Total $8,919,633.25 $347,269.21 $8,824,594.74

Totals in opposition Total raised: $9,266,902.46 Total spent: $9,171,863.95

Donors

The following were the top six donors who contributed to the opposition committees:

Donor	Cash	In-kind	Total
Sixteen Thirty Fund	$3,500,000.00	$0.00	$3,500,000.00
State Engagement Fund	$1,650,000.00	$3,680.25	$1,650,000.00
NC Citizen’s For Protecting Our Schools	$775,000.00	$0.00	$775,000.00
America Votes	$750,000.00	$9,549	$759,549.00
Open Society Policy Center, Inc.	$500,000.00	$0.00	$500,000.00
National Education Association	$500,000.00	$0.00	$500,000.00

Methodology

To read Ballotpedia's methodology for covering ballot measure campaign finance information, click here.

Polls

See also: 2018 ballot measure polls

North Carolina Judicial Selection for Midterm Vacancies Amendment (2018)
Poll	Support	Oppose	Undecided	Margin of error	Sample size
SurveyUSA October 2, 2018 - October 8, 2018	35.0%	36.0%	29.0%	+/-4.8	561
Note: The polls above may not reflect all polls that have been conducted in this race. Those displayed are a random sampling chosen by Ballotpedia staff. If you would like to nominate another poll for inclusion in the table, send an email to editor@ballotpedia.org.

Background

Conflict between Gov. Cooper and state General Assembly

See also: Conflicts between Gov. Roy Cooper and the General Assembly of North Carolina

North Carolina Legislative Conflicts

2016 North Carolina election

Governor of North Carolina

General Assembly of North Carolina

State Senate • State House

North Carolina Supreme Court

North Carolina Court of Appeals

2018 constitutional amendments

Since the 2016 election, North Carolina's executive and legislative branches have been in an almost constant state of conflict. The Republican-controlled General Assembly of North Carolina has passed a series of bills that Democratic Gov. Roy Cooper has argued were intended to undermine his authority as governor. Republicans, meanwhile, insist that the legislation is restoring power to the legislature that was previously taken away by earlier Democratic administrations. This back-and-forth between Cooper and the legislature has resulted in a series of vetoes, veto overrides, and lawsuits, some of which predate Cooper's swearing-in on January 1, 2017. The Republican supermajorities in each chamber of the legislature allow Republicans to pass legislation and override gubernatorial vetoes with little intervention by Democrats.

In 1996, North Carolina became the last state in the country to grant veto power to the governor. As of March 2019, North Carolina governors had vetoed 63 bills since 1997. Thirty-nine of those bills were overridden by the legislature. In the 2017-2018 legislative session, the Republican-controlled legislature used its veto-proof majority to override 23 of the 28 vetoes issued by Gov. Cooper. That is the most that the North Carolina legislature has ever overridden in a legislative session.

In 2018, voters in North Carolina decided six constitutional amendments—the most on the ballot in a single year since 1982. Two of the constitutional amendments—the Legislative Appointments to Elections Board and Commissions Amendment and Judicial Selection for Midterm Vacancies Amendment—represent a conflict between the executive and legislative branches over powers to appoint judges and state commission members. An additional two constitutional amendments—Voter ID Amendment and Income Tax Cap Amendment—represent a broader conflict between Democrats and Republicans in North Carolina.

Timeline

The following timeline outlines how 2018's constitutional amendments were involved in the conflict between Gov. Roy Cooper and the General Assembly of North Carolina.

Passage of constitutional amendments

• June 27, 2018: The General Assembly of North Carolina referred the Legislative Appointments to Elections Board and Commissions Amendment to the ballot for the election on November 6, 2018. More than 99 percent (106/107) of legislative Republicans supported the amendment. One legislative Democrat supported the amendment.

• June 28, 2018: The General Assembly of North Carolina referred the Judicial Selection for Midterm Vacancies Amendment to the ballot for the election on November 6, 2018. Two Republicans voted against the amendment, meaning 106 of 108 non-absent Republicans voted for the amendment. No Democrats supported the amendment.

• July 10, 2018: Gov. Roy Cooper (D) said the Legislative Appointments to Elections Board and Commissions Amendment and Judicial Selection for Midterm Vacancies Amendment, along with the Voter ID Amendment and Income Tax Cap Amendment, were bad for North Carolina.

Original constitutional amendments in the conflict between North Carolina Gov. Cooper and state legislature
Measure	Description	Republicans	Democrats	Gov. Cooper
Midterm Judicial Vacancies Amendment	remove the governor's power to fill judicial vacancies and, instead, require a commission to develop a list of candidates, legislators to narrow the list down to two candidates, and the governor selecting the final nominee.	• Total: 106/107 (99.1%) • Senate: 33/33 • House: 73/74	• Total: 1/59 (1.7%) • Senate: 1/14 • House: 0/44
Legislative Appointments to State Boards Amendment	remove the governor's power to make appointments to the elections and ethics board, meaning legislative leaders would make all eight appointments to the board, and provide that the legislature controls the powers, duties, appointments, and terms of office for state boards and commissions	• Total: 106/108 (98.2%) • Senate: 32/33 • House: 74/75	• Total: 0/56 (0.0%) • Senate: 0/13 • House: 0/43

Passage of legislation on ballot captions

• July 21, 2018: Rep. David Lewis (R-53) wrote a letter to House Speaker Tim Moore (R-111) asking for a special session to address the Constitutional Amendments Publication Commission's powers and have the legislature wrote the ballot measures' captions.
  • The Constitutional Amendments Publication Commission, which includes two Democrats—Secretary of State Elaine Marshall and Attorney General Josh Stein—and one Republican—legislative services officer Paul Coble—is responsible for preparing a short caption reflecting the contents for each constitutional amendment using simple and common language, according to state law passed in 2016. The Board of Elections and Ethics Enforcement spokesperson, Patrick Gannon, said ballots will include "the short caption provided by the Constitutional Amendments Publication Commission, as well as the ‘For’ or ‘Against’ language included in the legislation approving the amendments for the ballots."
  • Lewis wrote, "It appears that the commission may be falling to outside political pressure, contemplating politicizing the title-crafting process, including using long sentences or negative language in order to hurt the amendments' chances of passing."
  • Secretary of State Marshall responded to Lewis' letter asking for a special session, saying, "I can speak for myself, I have had no, none outside pressure on this process."

• July 23, 2018: House Speaker Tim Moore (R-111) and Senate President Phil Berger (R-26) announced a special legislative session to convene on July 24, 2018.

• July 24, 2018: The General Assembly of North Carolina passed House Bill 3 (HB 3), which removed the Constitutional Amendments Publication Commission's power to write ballot captions. HB 3 also made the ballot captions for each of the constitutional amendments the words Constitutional Amendment.
  • In the state Senate, one Democrat—Joel Ford (D-36)—voted with 26 Republicans to approve HB 3. Two Republicans—Wesley Meredith (R-19) and Trudy Wade (R-27)—voted with 12 Democrats to oppose HB 3.
  • In the state House, the vote was 67-36. Republicans voted to pass HB 3, while Democrats voted against the legislation.

• July 27, 2018: Gov. Cooper (D) vetoes HB 3. He veto message said, "These proposed constitutional amendments would dramatically weaken our system of checks and balances. The proposed amendments also use misleading and deceptive terms to describe them on the ballot. [HB 3] compounds those problems by stopping additional information that may more accurately describe the proposed amendments on the ballot."
  • House Speaker Moore (R-111) and Senate President Berger (R-26) responded to the veto message, stating, "We will override these vetoes to deliver clear and consistent voter information on ballots this November."
  • Speaker Moore and President Berger also said the legislature would meet on August 4, 2018, to vote on overriding Gov. Cooper's veto.

• July 31, 2018: The Constitutional Amendments Publication Commission held a meeting to discuss captions for the constitutional amendments. However, state law required the commission's three members to be present to approve captions. Secretary of State Marshall (D) and Attorney General Stein (D) were present but legislative services officer Paul Coble (R) was not. Coble notified Marshall and Stein that he would be absent until the following week.

• August 4, 2018: The General Assembly of North Carolina voted to override Gov. Cooper's veto of HB 3. A three-fifths vote (60 percent) of present legislators in each chamber was needed to override the veto.
  • In the state Senate, one Democrat—Joel Ford (D-36)—voted with 27 Republicans to override the veto. No Republicans voted with the 12 Democrats to override the veto. As nine members were absent, 24 votes were needed to override the veto.
  • In the state House, the vote was 70-39. Republicans voted to pass HB 3, while Democrats voted against the legislation. As 11 members were absent, 65 votes were needed to override the veto.

Lawsuits regarding original constitutional amendments

• August 6, 2018: Gov. Cooper (D) sued the General Assembly of North Carolina in the Wake County Superior Court. Gov. Cooper asked the court to remove two constitutional amendments—the Judicial Selection for Midterm Vacancies Amendment and Legislative Appointments to Elections Board and Commissions Amendment—from the ballot. He said the amendments were a scheme to "eliminate the separation of powers, usurp the governor's executive authority and seize control of the appointment of every member of virtually every board and commission in all three branches of state government." He said the legislature's written questions for the amendments were false and misleading.
  • Joseph Kyzer, a spokesperson for House Speaker Tim Moore and Senate President Phil Berger, responded, "Political litigation is the governor's idea of leadership, and the people of North Carolina are becoming accustomed to Cooper's use of the court system to circumvent their support of popular legislative proposals."

• August 6, 2018: The North Carolina NAACP and Clean Air Carolina sued the state legislature in the Wake County Superior Court. The plaintiffs asked for four constitutional amendments—the Legislative Appointments to Elections Board and Commissions Amendment, Judicial Selection for Midterm Vacancies Amendment, Voter ID Amendment, and Income Tax Cap Amendment—to be removed from the ballot. The NAACP and Clean Air Carolina said that since some lawmakers were elected from districts that a federal court ruled were unconstitutional racial gerrymanders, the existing North Carolina State Legislature was a usurper legislature. Therefore, the constitutional amendments should be invalidated.
  • Senate President Phil Berger responded, "We predicted Democratic activists would launch absurd legal attacks to keep the voters from deciding on their own Constitution, but this one really jumps the shark. This absurd argument – which has already been rejected in federal court – is a sad and desperate attempt to stop North Carolina voters from joining 34 other states in requiring identification when casting a ballot."

• August 15, 2018: A three-judge panel—Judges Forrest D. Bridges, Thomas H. Lock and Jeffery Carpenter—heard arguments in both lawsuits.

• August 21, 2018: The judges dismissed the litigation to remove the Voter ID Amendment and Income Tax Cap Amendment from the ballot.

• August 21, 2018: The panel of judges, in a two-to-one decision, blocked the Legislative Appointments to Elections Board and Commissions Amendment and Judicial Selection for Midterm Vacancies Amendment from appearing on the ballot in November 2018. Judges Forrest D. Bridges, a Democrat, and Thomas H. Lock, who is unaffiliated, signed the decision to remove the amendments, while Judge Jeffery Carpenter, a Republican, dissented. According to Judges Bridges and Lock, the ballot language that the legislature included for the two amendments would not inform voters as to the amendments' effects and allow voters to form an intelligent opinion.
  • Pat Ryan, a spokesperson for Senate President Berger, described the ruling as "uncharted territory for judicial activism and sets a dangerous precedent when two judges take away the rights of (millions of) people to vote on what their constitution." He said Senate President Berger and House Speaker Moore's legal team was reviewing their options.
  • Ford Porter, a spokesperson for Gov. Cooper, responded to the ruling, saying, "Misleading voters about the true impact of amendments that threaten our fundamental separation of powers is wrong, as the ruling recognizes."

Legislation to replace the ballot language

• August 24, 2018: House Speaker Tim Moore and Senate President Phil Berger called a special session of the General Assembly of North Carolina to replace the two ballot measures that the three-judge panel blocked from appearing on the ballot in November on August 21. Moore said, "We hope this will end the unnecessary litigation and allow our state to move forward with the democratic process to let the people decide these issues for themselves."

• August 24, 2018: The state House approved new versions of the two constitutional amendments.
  • The Legislative Appointments to Elections Board and Commissions Amendment was rewritten to affect just the elections board, rather than the elections board and all other commissions. The vote was along partisan lines, with Republicans supporting and Democrats opposing the amendment.
  • House Republicans approved the Judicial Selection for Midterm Vacancies Amendment with different ballot ballot language than the original. Democrats, along with one Republican, voted against the amendment.

• August 27, 2018: The state Senate approved new versions of the two constitutional amendments.
  • Senate Republicans, along with one Democrat, approved the rewritten Legislative Appointments to Elections Board Amendment.
  • Senate Republicans, along with one Democrat, approved the rewritten Judicial Selection for Midterm Vacancies Amendment.

• August 27, 2018: Gov. Roy Cooper's (D) spokesperson Ford Porter responded to the passage of the revised amendments, saying, "Yes, you can expect further legal action. Less than a week before ballots are to be printed, rather than repeal their old misleading amendments, Republicans have passed more misleading amendments to erode checks and balances in our state’s constitution."

Revised constitutional amendments in the conflict between North Carolina Gov. Cooper and state legislature
Measure	Description	Republicans	Democrats	Gov. Cooper
Midterm Judicial Vacancies Amendment	remove the governor's power to fill judicial vacancies and, instead, require a commission to develop a list of candidates, legislators to narrow the list down to two candidates, and the governor selecting the final nominee.	• Total: 103/104 (99.04%) • Senate: 31/31 • House: 72/73	• Total: 1/48 (2.08%) • Senate: 1/14 • House: 0/34
Legislative Appointments to Elections Board Amendment	remove the governor's power to make appointments to the elections and ethics board, meaning legislative leaders would make all eight appointments to the board	• Total: 104/104 (100.00%) • Senate: 31/31 • House: 73/73	• Total: 1/48 (2.08%) • Senate: 14/15 • House: 33/33

Lawsuits regarding revised constitutional amendments

• August 29, 2018: Gov. Roy Cooper (D) filed litigation against the revised constitutional amendments. He said, "The General Assembly has now retreated to a new position less extreme than its original one, but the General Assembly's new position is still unconstitutional – the new ballot questions are still misleading, and they still fail to provide the voters with the information they need to make an intelligent decision on the wisdom of the new proposed amendments."
  • Rep. David Lewis (R-53) and Sen. Ralph Hise (R-47) responded to the governor's lawsuit, stating, "This General Assembly, complied, in exacting detail, with a court opinion with which it disagreed. Beyond all the name-calling and drama, Governor Cooper can't point to a single legitimate reason why the new amendments don't meet that court's standard, nor does he even really care about that."

• August 31, 2018: The same three-judge panel—Judges Forrest D. Bridges, Thomas H. Lock and Jeffery Carpenter—that struck down the earlier amendments affirmed that the rewritten constitutional amendments could appear on the ballot. Gov. Cooper appealed the decision to the North Carolina Supreme Court.

• September 4, 2018: The North Carolina Supreme Court affirmed the panel's decision in a one-sentence ruling, allowing the constitutional amendments to remain on the ballot for the general election on November 6, 2018.

Referred amendments on the ballot

From 1996 through 2016, the General Assembly of North Carolina referred 10 constitutional amendments to the ballot. Voters approved all 10 of the referred amendments. All of the amendments were referred to the ballot for elections during even-numbered election years. The average number of amendments appearing the ballot was one. The approval rate at the ballot box was 100.0 percent during the 20-year period from 1996 through 2016. The rejection rate was 0.0 percent. Before 2018, the most recent constitutional amendment was on the ballot in 2014.

North Carolina statewide general election ballot measures, 1996-2016
Total number	Approved	Percent approved	Defeated	Percent defeated	Annual average	Annual median	Annual minimum	Annual maximum
10	10	100.00%	0	0.00%	0.9	1.0	0	3

Path to the ballot

See also: Amending the North Carolina Constitution

In North Carolina, a constitutional amendment must be passed by a 60 percent vote in each house of the state legislature during one legislative session.

Passage of first version

The amendment was introduced into the legislature as Senate Bill 814 (SB 814) on June 20, 2018.

The North Carolina State Senate approved the amendment, 34 to 13 with three members absent, on June 25, 2018. Republicans voted for the amendment. Democrats, except one state senator, voted against the amendment.

On June 28, 2018, the North Carolina House of Representatives voted to approve SB 814. The vote was 73 to 45 with two members not voting.

Vote in the North Carolina State Senate June 25, 2018
Requirement: Three-fifths (60 percent) vote of all members in each chamber
Number of yes votes required: 30  a
	Yes	No	Not voting
Total	34	13	3
Total percent	68.00%	26.00%	6.00%
Democrat	1	13	1
Republican	33	0	2

Vote in the North Carolina House of Representatives June 28, 2018
Requirement: Three-fifths (60 percent) vote of all members in each chamber
Number of yes votes required: 72  a
	Yes	No	Not voting
Total	73	45	2
Total percent	60.83%	37.50%	1.67%
Democrat	0	44	1
Republican	73	1	1

Cooper v. Berger et. al.

On August 21, 2018, a panel of judges, in a two-to-one decision, blocked the Legislative Appointments to Elections Board and Commissions Amendment and Judicial Selection for Midterm Vacancies Amendment from appearing on the ballot in November 2018. Judges Forrest D. Bridges, a Democrat, and Thomas H. Lock, who is unaffiliated, signed the decision to remove the amendments, while Judge Jeffery Carpenter, a Republican, dissented. According to Judges Bridges and Lock, the ballot language that the legislature included for the two amendments would not inform voters as to the amendments' effects and allow voters to form an intelligent opinion. Pat Ryan, a spokesperson for Senate President Phil Berger (R), said legal options were being considered following the ruling. Gov. Roy Cooper (D) initiated the litigation against the amendments.

Gov. Roy Cooper (D) initiated the lawsuit against the state General Assembly's constitutional amendments. Pat Ryan, a spokesperson for Senate President Berger, described the ruling as "uncharted territory for judicial activism and sets a dangerous precedent when two judges take away the rights of (millions of) people to vote on what their constitution." Ford Porter, a spokesperson for Gov. Cooper, responded to the ruling, saying, "Misleading voters about the true impact of amendments that threaten our fundamental separation of powers is wrong, as the ruling recognizes."

Passage of second version

House Speaker Tim Moore and Senate President Phil Berger called a special session of the General Assembly of North Carolina to replace the two ballot measures that the three-judge panel blocked from appearing on the ballot in November on August 21.

The ballot language for the constitutional amendment was rewritten. The new version of the constitutional amendment was known as House Bill 3 (HB 3). On August 24, the state House voted 72-34. Democrats, along with one Republican, voted against HB 3.

On August 27, 2018, the state Senate approved HB 3 in a vote of 32-13. Senate Republicans, along with one Democrat, approved the rewritten constitutional amendment.

As both chambers of the state General Assembly approved HB 3, the revised constitutional amendment was referred to the general election ballot.

Vote in the North Carolina House of Representatives August 24, 2018
Requirement: Three-fifths (60 percent) vote of all members in each chamber
Number of yes votes required: 72  a
	Yes	No	Not voting
Total	72	34	13
Total percent	60.51%	28.57%	10.92%
Democrat	0	33	2
Republican	72	1	11

Vote in the North Carolina State Senate August 27, 2018
Requirement: Three-fifths (60 percent) vote of all members in each chamber
Number of yes votes required: 30  a
	Yes	No	Not voting
Total	32	13	4
Total percent	64.00%	26.00%	8.00%
Democrat	1	13	1
Republican	31	0	4

See also

2018 measures

• 2018 ballot measures
• State judiciary on the ballot

North Carolina

• North Carolina ballot measures
• North Carolina ballot measure laws
• Judicial selection in North Carolina

News and analysis

• Ballot measure lawsuits
• Ballot measure readability
• Ballot measure polls

External links

• Senate Bill 814