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Cooper v. Berger

The Brennan Center is supporting North Carolina Governor Roy Cooper’s lawsuit against the state’s General Assembly. This litigation arises out of the Republican-dominated North Carolina Legislature’s efforts to use affirmative misleading ballot language for constitutional amendments that would cement partisan control of the state.

Published: August 14, 2018

In July 2018, the GOP-dominated North Carolina General Assembly voted to place a number of constitutional amendments on the November ballot. Two of these amendments would substantially alter the balance of power in the state in favor of the legislature, the only branch of government Republicans still control thanks in part to extreme gerrymandering and other anti-democratic tactics. Under the first proposed amendment, the legislature would take from the governor the power to appoint all members of a new state board of elections and every other “board and commission” in the state. The second proposed amendment would allow the legislature to fill judicial vacancies with political appointees. Both amendments will appear on the ballot with affirmatively misleading ballot language that does not convey the substance of what they would do. The General Assembly also voted subsequently to strip a state commission that normally drafts explanatory titles for proposed amendments of the power to do so, apparently because two of its three members are Democratic statewide elected officials.

On August 6, 2018, Governor Roy Cooper filed suit, alleging that the use of misleading ballot language for the proposed amendments is unconstitutional under Articles I and XIII of the North Carolina Constitution. The case was assigned to a special three-judge court in Wake County, North Carolina.  

On August 14, the Brennan Center and Democracy North Carolina filed a friend of the court brief in support of Governor Cooper’s position. According to the brief, the General Assembly’s attempt to use misleading ballot language to cement one party’s control of state government, like its past attempts at political entrenchment on which the organizations also weighed in, violates bedrock principles underlying the constitutions of the United State and North Carolina. The brief also argues that the misleading ballot language nullifies the right to vote. 

The trial court ruled that the ballot language was so misleading so as to fail the state constitution’s requirement that constitutional amendments be submitted to the voters. Defendants appealed. On August 23, the Brennan Center and Democracy North Carolina reiterated these arguments in an amicus brief to the state supreme court in support of Governor Cooper’s position.