No.

267P18 TENTH JUDICIAL DISTRICT

SUPREME COURT OF NORTH CAROLINA

*************************************

ROY A. COOPER, III, IN HIS OFFICIAL

CAPACITY AS GOVERNOR OF THE
STATE OF NORTH CAROLINA,

Plaintiff-Appellant,

vs.

PHILIP E. BERGER, in his official

capacity as PRESIDENT PRO TEMPORE
OF THE NORTH CAROLINA SENATE; From Wake County
TIMOTHY K. MOORE, in his official No. 18 CVS 9805
capacity as SPEAKER OF THE NORTH
CAROLINA HOUSE OF
REPRESENTATIVES; NORTH
CAROLINA BIPARTISAN STATE
BOARD OF ELECTIONS AND ETHICS
ENFORCEMENT; and JAMES A.
(“ANDY”) PENRY, in his official capacity
as CHAIR OF THE NORTH CAROLINA
BIPARTISAN STATE BOARD OF
ELECTIONS AND ETHICS
ENFORCEMENT,

Defendants-Appellees.

*******************************************************************
PRESIDENT PRO TEMPORE BERGER
AND SPEAKER OF THE HOUSE MOORE’S APPELLEES’ BRIEF
*******************************************************************
 -i-

INDEX

TABLE OF CASES AND AUTHORITIES................................... iii

INTRODUCTION .......................................................................... 1
STATEMENT OF THE CASE....................................................... 4
A. The Original Proposed Amendments ........... 4
1. Session Law 2018-117 ................................... 5
2. The Judicial Vacancies Proposed Amendment
........................................................................ 6
B. Appellant’s Challenge to the Original
Proposed Amendments.................................. 8
C. The New Proposed Amendments ................ 12
1. Session Law 2018-132 ....................................................... 12
2. Session Law 2018-133 ....................................................... 14
D. Appellant’s Challenge to the New Proposed
Amendments ................................................ 15
ARGUMENT ................................................................................ 16
I. GIVEN THE TEXTUAL COMMITMENT REGARDING
CONSTITUTIONAL AMENDMENTS TO THE GENERAL
ASSEMBLY AND THE LACK OF MANAGABLE STANDARDS,
THIS COURT DOES NOT HAVE SUBJECT MATTER
JURISDICTION OVER APPELLANT’S CHALLENGES TO
THE NEW PROPOSED AMENDMENTS. ................................. 17
II. APPELLANT IS NOT LIKELY TO SUCCEED IN HIS
CHALLENGES TO THE BALLOT LANGUAGE FOR THE
NEW PROPOSED AMENDMENTS. .......................................... 26
A. Substantive due process can provide a standard under
which to analyze the ballot questions. ........................................ 28
A. The cases and statutes cited by Appellant do not establish
a workable standard that could be applied in North
Carolina. ............................................................................ 33
B. Even under the rigorous standard used by the trial court,
the ballot language for the New Proposed Amendments
was determined to pass constitutional muster, and this
Court should affirm........................................................... 45
1. Session Law 2018-133 ....................................................... 47
2. Session Law 2018-132 ....................................................... 49
 -ii-

III. APPELLANT CANNOT SHOW IRREPARABLE

HARM........................................................................................... 52
CONCLUSION ............................................................................ 60
CERTIFICATE OF SERVICE ..................................................... 62
 -iii-

TABLE OF CASES AND AUTHORITIES

Advisory Opinion in re House Bill No. 65, 227 N.C.

708, 43 S.E.2d 73 (1947).................................... 27

Anne Arundel Cty. v. McDonough, 354 A.2d 788

(Md. 1976) .......................................................... 54

Armstrong v. Harris, 773 So. 2d 7 (Fla. 2000) . 34, 54

Askew v. Firestone, 421 So. 2d 151 (Fla. 1982) ...... 34

Bacon v. Lee, 353 N.C. 696, 549 S.E.2d 840

(2001) ..................................................... 23, 24, 25

Baker v. Carr, 369 U.S. 186 (1962) ........................ 21

Bank of Union v. Redwine, 171 N.C. 559, 88 S.E.

878 (1916) .......................................................... 23

Bd. of Provincial Elders v. Jones, 273 N.C. 174, 159

S.E.2d 545 (1968)............................................... 27

Bishop v. Bartlett, 575 F.3d 419 (4th Cir. 2009).... 54

Bishop v. Bartlett, No. 5:06-CV-462-FL, 2007 WL

9718438 (E.D.N.C. Aug. 18, 2007) .................... 29

Brannon v. N.C. State Bd. of Elections, 331 N.C.

335, 416 S.E.2d 390 (1992)................................ 21

Burton v. State of Ga., 953 F.2d 1266 (11th Cir.

1992)....................................................... 28, 29, 49

Cooper v. Berger, 370 N.C. 392, 809 S.E.2d 98

(2018) ................................................................. 25

Donaldson v. Dep’t of Transp., 414 S.E.2d 638

(Ga.1992)................................................ 36, 46, 55

Evans v. Firestone, 457 S0. 2d 1351 (1984) ........... 47

Fox v. Bd. of Comm’rs of Durham Cty., 244 N.C.

497, 94 S.E.2d 482 (1956) ................................. 53

Grudzinski v. Bradbury, No. CIV. 07-6195-AA,

2007 WL 2733826 (D. Or. Sept. 12, 2007) .. 29, 55
 -iv-

High Point Surplus Co. v. Pleasants, 264 N.C. 650,

142 S.E.2d 697 (1965)........................................ 52

Hill v. Lenoir County, 176 N.C. 572, 97 S.E. 498

(1918) .......................................... 10, 40, 41,45, 54

Hoke Cty. Bd. of Educ. v. State, 358 N.C. 605, 599

S.E.2d 365 (2004)............................................... 21

Jenkins v. State Bd. of Elections of N. Carolina, 180

N.C. 169, 104 S.E. 346 (1920) ........................... 26

Kimmelman v. Burgio, 497 A.2d 890 (N.J. App. Div.

1985)............................................................. 35, 46

Kornegay v. City of Goldsboro, 180 N.C. 441, 105

S.E. 187, 192 (1920)........................................... 43

Lane v. Lukens, 283 P. 532 (Id. 1929) .............. 35, 54

Lemmerman v. A.T. Williams Oil Co., 318 N.C. 577,

350 S.E.2d 83 (1986).......................................... 20

Leonard v. Maxwell, 216 N.C. 89, 3 S.E.2d 316

(1939) ................................................................. 30

Limmer v. Ritchie, 819 N.W.2d 622 (Minn. 2012) . 43

Nez Perce Tribe v. Cenarrusa, 125 Idaho 37, 867

P.2d 911 (1993) .................................................. 54

Reade v. City of Durham, 173 N.C. 668, 92 S.E. 712

(1917) ..................................................... 37, 38, 54

Reese v. Mecklenburg Cty., 200 N.C. App. 491, 685

S.E.2d 34 (2009) ................................................ 39

Rhyne v. K–Mart Corp., 358 N.C. 160, 594 S.E.2d 1

(2004) ................................................................. 30

Ridge Cmty. Investors, Inc. v. Berry, 293 N.C. 688,

239 S.E.2d 566 (1977)........................................ 27

Ross v. Meese, 818 F.2d 1132 (4th Cir. 1987) ....... 53

Sears v. State, 208 S.E.2d 93 (Ga 1974)................. 30

 -v-

Sears v. Treasurer & Receiver Gen., 98 N.E.2d 621

(Mass. 1951) ................................................. 33, 54

Stark v. Ratashara, 177 N.C. App. 449, 628 S.E.2d

471 (2006) .......................................................... 20

State ex rel. Bailey v. Celebrezze, 426 N.E.2d 493,

495 (Oh. 1981) ................................................... 33

State ex rel. Voters First v. Ohio Ballot Bd., 978

N.E.2d 119 (Oh. 2012) ....................................... 33

State v. Fayetteville St. Christian Sch., 299 N.C.

351, 261 S.E.2d 908 (1980)................................ 52

State v. Smith, 352 N.C. 531, 532 S.E.2d 773

(2000) ................................................................. 23

State v. Underwood, 283 N.C. 154, 195 S.E.2d 489

(1973) ................................................................. 52

Stop Slots Md 2008 v. State Bd of Elections, 34

A.3d 1164 (Ct. App. Md. 2008) ......................... 34

Sykes v. Belk, 278 N.C. 106, 179 S.E.2d 439

(1971) ................................................................. 39

Town of Boone v. State, 368 N.C. 420, 777 S.E.2d

759 (Mem) (2015) ............................................... 52

Town of Boone v. State, 369 N.C. 126, 794 S.E.2d

710 (2016) .................................................... 26, 52

VisionAIR, Inc. v. James, 167 N.C. App. 504, 606

S.E.2d 359 (2004)............................................... 27
 -vi-

Maryland Code § 7-103 ........................................... 34

Maryland Code § 7-105.................................................34

Maryland Code § 9-203 ............................................. 34

N.C. Gen. Stat. § 7A-142 ........................................ 51

N.C. Gen. Stat. § 163A 1108...............................9,10, 41

N.C. Gen. Stat. § 1-267.1 ............................................

N.J. Stat. Ann. § 19:3-6 ..............................................

1968 Constitutional Commission Report, p.89 (1968)

John V. Orth, Forever Separate & Distinct': Separation of

Powers in N. Carolina, 62 N.C.L. Rev. 1, 10–11 (1983)

Constitutional Provisions

N.C. Const. art. I, § 1. ............................................. 12

N.C. Const. art. XIII, § 4. ................................... 7, 12

OH Const. Art. XVI, § 1 .......................................... 19

Statutes and Session Laws

N.C. Gen. Stat. § 147-54.10 .................................... 22

N.C. Sess. Law 2017-207 ........................................ 10

N.C. Sess. Law 2017-208 ........................................ 10

Session Law 1969-872, § 5...................................... 15

Session Law 1995-438, § 2...................................... 17

Session Law 2011-409 ............................................ 19

Session Law 2018-119 .................................... passim

Session Law 2018-128 .................................... passim

 -vii-

Rules

N.C. R. App. P. 23(a)(1) ............................................ 6

N.C. R. App. P. 23(c) ................................................. 6

Other Authorities

8 N.C. Admin. Code 10B.0107(a)(1) ....................... 22

https://www.ncleg.net/ ............................................ 21
No. 267P18 TENTH JUDICIAL DISTRICT

SUPREME COURT OF NORTH CAROLINA

*************************************

ROY A. COOPER, III, IN HIS OFFICIAL

CAPACITY AS GOVERNOR OF THE
STATE OF NORTH CAROLINA,

Plaintiff-Appellant,

vs.

PHILIP E. BERGER, in his official

capacity as PRESIDENT PRO TEMPORE
OF THE NORTH CAROLINA SENATE; From Wake County
TIMOTHY K. MOORE, in his official No. 18 CVS 9805
capacity as SPEAKER OF THE NORTH
CAROLINA HOUSE OF
REPRESENTATIVES; NORTH
CAROLINA BIPARTISAN STATE
BOARD OF ELECTIONS AND ETHICS
ENFORCEMENT; and JAMES A.
(“ANDY”) PENRY, in his official capacity
as CHAIR OF THE NORTH CAROLINA
BIPARTISAN STATE BOARD OF
ELECTIONS AND ETHICS
ENFORCEMENT,

Defendants-Appellees.

*******************************************************************
PRESIDENT PRO TEMPORE BERGER
AND SPEAKER OF THE HOUSE MOORE’S APPELLEES BRIEF
*******************************************************************

INTRODUCTION

Appellant disparages the General Assembly (represented here by Philip E.

Berger, in his official capacity as President Pro Tempore of the North Carolina

Senate, and Timothy K. Moore, in his official capacity as Speaker of the North
 -2-

Carolina House of Representatives (collectively, “Appellees”)), as an oligarchy beset

on destroying the Constitution. And Appellant disparages the voters of North

Carolina by indicating that they lack even a novice understanding of law, their

Constitution, or the function of their government such that in order to be allowed to

consider changes to the Constitution they must first by protected by the courts at the

direction of the Governor. But the people of our State (without the aid of the courts)

have twice ratified constitutions that include no role for the executive branch in the

amendment process and (again without the preclearance of the judiciary) amended

the 1971 Constitution to give the Governor veto power over legislative action but not

over the proposal of constitutional amendments. Nonetheless, it is the executive

branch, which has no part in the process of proposing amendments except to place

the proposed amendments on the ballot as directed by the legislature, that seeks

relief from this Court with regard to proposed amendments to be included on the

November 2018 ballot.

Responding to the alarm raised by Appellant, the majority of the three-judge

panel trial court quickly created a layer of judicial review for ballot language for

proposed constitutional amendments that is not found in our Constitution or

precedent but instead in constitutions, statutes, and case law from other states. The

trial court’s decision to ignore the plain and unmistakable language of our State’s

Constitution for that of other states was error. However, even applying that

standard, the trial court found that the ballot language for the two proposed

amendments currently before this Court (those set forth in Session Law 2018-132,
 -3-

regarding the filling of judicial vacancies, and Session Law 2018-133, regarding the

creation of the Bipartisan State Board of Ethics and Elections Enforcement (the “New

Board”) in the Constitution) was not misleading as alleged by Appellant and declined

to grant the injunctive relief sought. This Court should reach the same result.

The ballot questions at issue identify the amendments which the voters are to

consider for ratification or rejection; they are not patently and fundamentally unfair.

As such, they satisfy the standard applicable under North Carolina law.

Furthermore, each of these ballot questions meets the standard that the trial

court adopted, which is the same standard advanced by the Appellant before this

Court. Neither ballot question is misleading. For example, the ballot language in

Session Law 2018-133 highlights that the New Board will be a constitutionally-

created eight-person board, as opposed to the current, statutorily-created nine-person

board and further addresses all portions of the Constitution that will be amended.

The language succinctly lays out the amendment that the voters are asked to vote

upon, fairly identifies the primary purpose and effect of the amendment (i.e.,

establishing an agency in the constitution), and implies no position in favor of or

opposed to the amendment. The ballot language in Session Law 2018-132, regarding

filling judicial vacancies, highlights that the proposed amendment would change the

current system, including the Governor’s role in that system. As with Session Law

2018-133, the new process is succinctly described in the ballot question; the primary
 -4-

purpose and effect of the amendment is laid out in the ballot question; and no position

in favor or opposed to the amendment is implied.

Not only is Appellant unable to show a likelihood of success on the merits in

his challenge to Session Law 2018-132 and Session Law 2018-133 but also he cannot

establish that he will suffer irreparable harm if the proposed amendments are

included on the ballot. In advance of the election, Appellant and advocacy groups

may engage in public discourse and campaigns to counteract what they may contend

is misleading ballot language. Appellant can even continue this litigation in the lead

up to the November election and thereafter. It is even possible that the voters in

North Carolina, when presented with the amendments set forth in Session Laws

2018-132 and 2018-133, reject those amendments such that the issues raised by

Appellant are rendered moot. However, to grant the relief requested by Appellant is

to deny forever the voters the opportunity to ratify or reject the amendments

currently before this Court.

This Court should affirm the conclusion of the trial court that the ballot

language in Session Laws 2018-132 and 2018-133 can constitutionally be included on

the November ballot.

STATEMENT OF THE CASE

A. The Original Proposed Amendments

On 28 June 2018, the North Carolina General Assembly passed Session Laws

2018-117 and 2018-118 (collectively, the “Original Proposed Amendments”), which

proposed amendments to the North Carolina Constitution that were to be included

 -5-

on the November 2018 ballot. (R. at 41-46.) The presentation of those amendments

is subject to an injunctive order as described below.

1. Session Law 2018-117

Under current law, North Carolina has a Bipartisan State Board of Elections

and Ethics Enforcement (the “Board”) consisting of nine members appointed by the

Governor, four members from each of the State’s two largest political parties, and one

member who is not affiliated with the Democratic or Republican Parties. See 2018

N.C. Sess. Laws 2, § 8.(b). 1 Session Law 2018-117 proposed a constitutional

amendment that would establish a Bipartisan State Board of Ethics and Elections

Enforcement in Article VI (Suffrage and Eligibility to Office) of the Constitution. See

2018 N.C. Sess. Laws 117, § 1. As proposed, the New Board would consist of eight

members, no more than four of whom may be registered with the same political

affiliation, to be appointed by the General Assembly upon the recommendation of the

Speaker of the House and the President Pro Tempore of the Senate from nominees

provided by the majority and minority leaders of the respective houses. Id.

Session Law 2018-117 also proposed to amend three other sections of the

Constitution:

 Article I, Section 6 (Separation of Powers) to include the following

language: “The legislative powers of the State government shall
control the powers, duties, responsibilities, appointments, and terms
of office of any board or commission prescribed by general law. The
executive powers of the State government shall be used to faithfully

1The Board is currently the subject of a facial constitutional challenge brought by

Governor Cooper in the Wake County Superior Court, Case No. 18 CVS 3348. That
three-judge superior court panel has heard arguments on summary judgment and
could enter a decision at any time.
 -6-

execute the general laws prescribing the board or commission.”

Session Law 2018-117, § 2.

 Amend Article II, Section 20 (Powers of the General Assembly) to

include the prohibition that “No law shall be enacted by the General
Assembly that appoints a member of the General Assembly to any
board or commission that exercises executive or judicial powers.”
Session Law 2018-117, § 3.

 Amend Article III, Section 5 (Duties of the Governor) to include that,

“[i]n faithfully executing any general law enacted by the General
Assembly controlling the powers, duties, responsibilities,
appointments, and terms of office of any board or commission, the
Governor shall implement that general law as enacted and the
legislative delegation provided for in Section 6 of Article I of this
Constitution shall control,” and that “the legislative delegation
provided for in Section 6 of Article I of this Constitution shall control
any executive, legislative, or judicial appointment and shall be
faithfully executed as enacted.” Session Law 2018-117, § 4.

The General Assembly provided the following language to be used on the November

2018 ballot for voter consideration of the proposed amendment:

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.

2108 Sess. Laws 117, § 5.

2. The Judicial Vacancies Proposed Amendment

Session Law 2018-118 set forth a proposed constitutional amendment that

would have added to Article IV (regarding the judicial branch) a new procedure for

filling judicial vacancies:

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
 -7-

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.

Session Law 2018-118, § 1. As proposed, 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 . . . . 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.

Id. Because the Governor was able to choose the nominee recommended to him by

the General Assembly after vetting by the commission to fill the vacancy, the

proposed amendment excepts the legislative recommendation (and, if necessary upon

gubernatorial inaction, election) of nominees from bills subject to the gubernatorial

veto in Article II, Section 22. See Session Law 2018-118, § 5. However, the language

included in Session Law 2018-118 differed from other veto exceptions in that, while

it included limiting language (“in accordance with Section 23 of Article IV of this

 -8-

Constitution”), it did not expressly include the words “and containing no other

matter.” See id.

The General Assembly provided the following language to be used on the

November 2018 ballot for voter consideration of the proposed amendment:

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.

2018 N.C. Sess. Laws 118, § 6.

B. Appellant’s Challenge to the Original Proposed Amendments

On 6 August 2018, almost 40 days after passage of the Original Proposed

Amendments, Appellant filed his original complaint challenging the ballot language

set forth in the Original Proposed Amendments and sought preliminary injunctive

relief to enjoin the inclusion of the Original Proposed Amendments on the November

2018 ballot. 2 (See, e.g., R. at 3-39, ¶¶ 66, 99.) Appellant also filed a motion for

temporary restraining orders and motions for preliminary injunctions. (Id. at 37-38.)

2 The North Carolina Chapter of the National Association for the Advancement of
Colored People (the “NAACP”) and Clean Air Carolina (“CAC”) filed a similar
complaint challenging the Original Proposed Amendments and the proposed
amendments set forth in Session Laws 2018-119 and 2018-128. The panel
determined that the NAACP and CAC were not likely to succeed on their challenges
to Session Laws 2018-119 and 2018-128. (See Ex. 3, Order on Injunctive Relief, ¶ 49–
52.) The NAACP appealed this determination and filed a Petition for Writ of
Supersedeas with this Court, which was denied by Order entered on 29 August 2018,
and then with the Court of Appeals, which was denied on 31 August 2018. The
NAACP has re-filed its Petition for Writ of Supersedeas with this Court and, in its
response in opposition filed contemporaneously herewith, Appellees again submit
that the NAACP’s petition should be denied.
 -9-

A few hours after Appellant filed his original complaint, the North Carolina

Attorney General’s Office, on behalf of the Board, filed an Answer and Crossclaim

echoing the allegations of Governor Cooper that the ballot questions are “misleading,

difficult to understand accurately, unfair, and discriminatory,” and alleging that they

would require the Bipartisan State Board to “violate its duties under N.C. Gen. Stat.

§ 163A-1108” and would make the Board “a party to a violation” of Articles I and XIII.

(R. at 50-86, ¶¶ 30, 39.) The Board also asserted a motion for temporary restraining

order and motion for preliminary injunction. (Id. ¶¶ 128-135.)

Defendants moved to transfer venue to a three-judge panel under N.C. Gen.

Stat. § 1-267.1, disputing Plaintiffs’ characterization that their claims constituted as-

applied challenges to the constitutionality of the proposed amendments. (R. at 87.)

The Honorable Paul C. Ridgeway held a hearing on Appellant’s and the Board’s

motions for temporary restraining orders and determined that the facial

constitutional challenges must be heard and determined by a three-judge panel. (Id.)

Chief Justice Martin appointed a three-judge panel, and the panel scheduled a

hearing on the request for preliminary injunctive relief. (R. at 89.)

On 15 August 2018, the Honorable Forrest D. Bridges, Thomas H. Lock, and

Jeffrey K. Carpenter held a hearing on Plaintiff’s and the Board’s motions for

preliminary injunction. (R. at 117-18.) After entry of a temporary order, (R. at 116),

on 21 August 2018, the panel entered its Order on Injunctive Relief, enjoining

Plaintiff and the Board from including the Original Proposed Amendments on the

November 2018 ballot. (R. at 122-52.) While portions of the panel’s Order on
 -10-

Injunctive Relief were decided unanimously, on 23 August 2018, Judge Carpenter

filed a separate Memorandum of Dissent to Majority Order on Injunctive. (R. at 158-

70.)

The trial court determined that CAC lacked standing to challenge the ballot

questions. (R. at 126, ¶ 7.) The trial court, in a 2-1 split decision, rejected Appellees’

argument that consideration of the ballot language amounts to a non-justiciable

political question because preparation of ballot language is textually committed to

the General Assembly in the Constitution and because there are no measurable

standards by which to judge ballot language.3 (R. at 127, ¶ 10.) While the trial court

examined the facial challenge to the ballot language under the Constitution, it

unanimously held that, given that N.C. Gen. Stat. § 163A-1108 is a statutory rather

than a constitutional standard, challenges asserted under § 163A-1108 were not

properly before the three-judge panel constituted under N.C. Gen. Stat. § 1-267.1. (R.

at 138, ¶ 37.)

A majority of the trial court, relying on this Court’s opinion in Hill v. Lenoir

County, 176 N.C. 572, 97 S.E. 498 (1918) and out-of-state cases, developed what they

contend is an appropriate standard for the review of ballot language for proposed

constitutional amendments. (R. at 141, ¶ 44.) Judge Carpenter dissented from this

determination, agreeing with Appellees that the appropriate standard by which to

3 Judge Carpenter agreed with Appellees that Appellant’s challenge is a non-

justiciable political question. (R. at 161.)
 -11-

judge ballot language is the substantive due process standard set out in Article I,

Section 3 of the Constitution. (R. at 163.)

The trial court was unanimous in denying any preliminary injunction related

to Session Law 2018-119, regarding the maximum rate for income tax, and Session

Law 2018-128, regarding voter identification for in-person voting. (R. at 143-45¶¶

49, 52.) The trial court was also unanimous in its determination that the portion of

the ballot language in Session Law 2018-117, describing the bipartisan board for

elections and ethics enforcement, passed constitutional scrutiny. (R. at 145, ¶ 54.)

The court split 2-1, however, in its consideration of the remaining aspects of the

Original Proposed Amendments’ ballot language, with the majority of the panel

determining such ballot language was misleading and should be enjoined from

inclusion on the November 2018 ballot. (R. at 146-48, ¶¶ 55, 57.)

Specifically, the majority of the trial court noted that substantial changes to

various sections of the constitution regarding separation of powers and the faithful

execution of the laws were not referenced in the ballot language for Session Law 2018-

117. (R. at 146, ¶ 55.) With regard to Session Law 2018-118, on judicial vacancies,

the majority of the court determined that the ballot language lauded qualifications

over partisanship but did not explain how a nominee would be deemed qualified, did

not mention the Governor’s current role in filling vacancies, and did not address the

effect on the gubernatorial veto. (R. at 147-48, ¶ 57.)

The trial court expedited its order so that appellate review could proceed

immediately, (R. at 149-50, ¶¶ 61-62) and noted that “the General Assembly may act
 -12-

immediately to correct the problems in the language of the Ballot Questions so that

these proposed amendments, properly identified and described, may yet appear on

the November 2018 general election ballot,” (R. at 149-50, ¶ 61).

C. The New Proposed Amendments

Following entry of the trial court’s 21 August 2018 Order on Injunctive Relief,

and as invited by the three-judge superior court to do, the General Assembly

convened for a special session during which the New Proposed Amendments were

passed in response to the specific issues raised by the trial court panel. (R. at 338-

39, ¶¶ 3-4.)

1. Session Law 2018-132

Session Law 2018-132 sets forth the same proposed amendment to Article IV

(regarding the judicial branch) for filling judicial vacancies as set forth in Session

Law 2018-118:

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
 -13-

serve from the nominees recommended by the General

Assembly.

Session Law 2018-132, § 1. As in Session Law 2018-118, in Session Law 2018-132,

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 . . . . 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.

Id. Session Law 2018-132 does, however, propose a different amendment to Article

II, Section 22(5) (regarding the gubernatorial veto), making clear that

recommendations of nominees for judicial vacancies made to the Governor by the

General Assembly and election of nominees by the General Assembly in the event the

Governor fails to act are a limited exception not subject to the Governor’s veto; the

proposed amendment in Session Law 2018-132 makes clear that only bills

recommending nominees or electing nominees—and “containing no other matter”—

are excepted from the Governor’s veto. Id. at § 5.

The ballot question set forth in Session Law 2018-132 also differs from that set

forth in Session Law 2018-118. It reads as follows:

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
 -14-

action not subject to gubernatorial veto; and the Governor will

appoint judges from among these nominees.

2018 N.C. Sess. Laws 132, § 6.

2. Session Law 2018-133

As a present statutory board, the Board consists of nine members appointed

by the Governor, four members from each of the State’s two largest political parties,

and one member who is not affiliated with the Democratic or Republican Parties. See

2018 N.C. Sess. Laws 2, § 8.(b).4 Session law 2018-133 proposes a constitutional

amendment that would establish the New Board in Article VI (Suffrage and

Eligibility to Office) of the Constitution. See 2018 N.C. Sess. Laws 133, § 1. As

proposed, the New Board would consist of eight members, no more than four of whom

may be registered with the same political affiliation, to be appointed by the Governor

upon the recommendation of the leaders of the two House and Senate political party

caucuses with the most members. Id. The Governor would appoint no more than two

members from the recommendation of each leader. Id. In contrast to Session Law

2018-117, which also proposed changes to Article I, Section 6 (Separation of Powers),

Article II, Section 20 (Powers of the General Assembly), and Article III, Section 5

(Duties of the Governor), Session Law 2018-133 does not propose amendments to any

other section of the Constitution. Id.

The General Assembly provided the following language to be used on the

November 2018 ballot for voter consideration of the proposed amendment:

4 See note 1, supra.

 -15-

Constitutional amendment to establish an eight-member

Bipartisan Board of Ethics and Elections Enforcement in
the Constitution to administer ethics and elections law.

2018 N.C. Sess. Laws 133, § 2.

D. Appellant’s Challenge to the New Proposed Amendments

After passage of the New Proposed Amendments, on 28 August 2018,

Appellant filed his Petition for Writ of Supersedeas or Prohibition, Motion for

Temporary Stay, and Motion to Suspend Appellate Rules with this Court, asserting

his constitutional challenge to the ballot language in Session Laws 2018-132 and

2018-133 for the first time in this Court as if this Court had original jurisdiction. (R.

at 178-79.) On 29 August 2018, this Court dismissed Appellant’s Petition for Writ of

Supersedeas “without prejudice to seek relief in the Superior Court.” (Id.)

Thus, on 30 August 2018, Appellant5 filed an Amended Complaint in Wake

County Superior Court Case No. 18 CVS 9805 challenging the New Proposed

Amendments and also filed his Motion for Temporary Restraining Order seeking to

exclude the New Proposed Amendments from the November 2018 ballot. (R. at 183-

242.)

A hearing on Appellant’s Motion for Temporary Restraining Order was held

before the three-judge panel on 31 August 2018, immediately after which the three-

5 The NAACP did not file a challenge to the New Proposed Amendments in the
Superior Court. (See Pet. Writ Supersedeas at 16 n.5, No. 261P18, Sep. 1, 2018.)
Likewise, the Board, which filed its Answer and Crossclaim joining in Appellant’s
challenge to Session Laws 2018-117 and 2018-118 the same day Plaintiff’s original
Complaint was filed, has not responded to Appellant’s Amended Complaint or sought
injunctive relief related to the New Proposed Amendments.
 -16-

judge panel 6 unanimously denied Appellant’s Motion for Temporary Restraining

Order, stating that “we do not find that the [ballot language] is so misleading so as to

violate the constitutional requirements explained in [the Order on Injunctive Relief].”

(R. at 346-47, ¶¶ 22, 25.)

Appellant filed his Notice of Appeal on 31 August 2018. (R. at 351-52.) Also

on 31 August 2018, this Court certified the trial court’s Order Denying Request for

Temporary Restraining Order for review in this Court. (Expedited Scheduling Order,

Aug. 31, 2018.) On 1 September 2018, Appellant filed his Brief. For the reasons set

forth below, this Court should affirm the result of the trial court and dissolve this

Court’s temporary stay in 261P18, allowing the ballots to be printed and campaigns

to get underway with earnest.

ARGUMENT

Appellant argues that the New Proposed Amendments are misleading and

should not be presented to the voters on the November 2018 ballot. The trial court,

the only court as of yet to create and apply a standard on constitutional amendment

ballot language in North Carolina, held that the New Proposed Amendments were

likely to be found constitutional in this facial challenge. This Court should deny

Appellant’s request to pull these proposed amendments from the November 2018

ballot because, as noted by Judge Carpenter in his dissent, wading into the

amendment proposal process is a non-justiciable political question appropriately left

to the General Assembly and the people, and, even if it were not, the New Proposed

6 Judge Carpenter concurred in the result.

 -17-

Amendments meet any constitutional standard for presentation to the voters of North

Carolina as exemplified by a unanimous trial court.

I. GIVEN THE TEXTUAL COMMITMENT REGARDING

CONSTITUTIONAL AMENDMENTS TO THE GENERAL ASSEMBLY
AND THE LACK OF MANAGABLE STANDARDS, THIS COURT DOES
NOT HAVE SUBJECT MATTER JURISDICTION OVER APPELLANT’S
CHALLENGES TO THE NEW PROPOSED AMENDMENTS.

Although Appellees raised arguments before the trial court that Appellant’s

request for relief addresses a non-justiciable political question such that the court

lacked subject matter jurisdiction, the majority of the trial court held that it did have

subject matter jurisdiction to consider Appellant’s challenge. (R. at 340, ¶ 9.) That

determination was error. Pursuant to Rule 10(c) of the North Carolina Rules of

Appellate Procedure, Appellees assert that the trial court did not have jurisdiction

over the constitutional arguments against Session Law 2018-132 and Session Law

2018-133 as an alternative basis in law for supporting the order of the trial court.

The Constitution sets forth no role for the executive branch in the process of

amending the Constitution. The authority to submit proposed constitutional

amendments to voters and to prescribe the time and manner of submission is vested

solely in the General Assembly pursuant to Article XIII, Section 4. Moreover,

notably, in Article I, Section 22, proposed amendments to the Constitution are

excepted from bills over which the Governor has veto power. These unambiguous

provisions from the text of the Constitution embody the doctrine of separation of

powers; they represent a purposeful allocation of powers solely to the legislative

branch and an equally purposeful exclusion of the executive branch from the
 -18-

constitutional amendment process. Appellant is not suggesting that the Legislature

is violating the separation of powers by proposing ballot questions; rather, he argues,

more or less on behalf of the people of North Carolina, that these ballot questions are

misleading.

As expressly set forth in our current Constitution, the right to propose

amendments, and the time and manner for their submission to the voters, belongs

solely to the General Assembly, and the right to reject or ratify such proposed

amendments belongs solely to the voters:

A proposal of a new or revised Constitution or an

amendment or amendments to this Constitution may be
initiated by the General Assembly, but only if three-fifths
of all the members of each house shall adopt an act
submitting the proposal to the qualified voters of the State
for their ratification or rejection. The proposal shall be
submitted at the time and in the manner prescribed by the
General Assembly. If a majority of the votes cast thereon
are in favor of the proposed new or revised Constitution or
constitutional amendment or amendments, it or they shall
become effective January first next after ratification by the
voters unless a different effective date is prescribed in the
act submitting the proposal or proposals to the qualified
voters.

N.C. Const. art. XIII, § 4. The Constitution of 1868, North Carolina’s second

Constitution, had more requirements associated with amending the Constitution

than are included in the current version of the Constitution:

SEC. 2. No part of the constitution of this State shall

be altered, unless a bill to alter the same shall have been
read three times in ach house of the Genral Assembly and
agreed to by three fifths of the whole number of members
of each house respectively; nor shall any alteration take
place until the bill, so agreed to, shall have been published,
six months previous to a new election of members to the
General Assembly. If after such publication the alteration
 -19-

proposed by the preceeding General Assembly shall be

agreed to, in the first session thereafter by two thirds of the
whole representation in each house of the General
Asssmbly, after the same shall have been read three times
on three several days, in each House, then the said Genral
Assembly shall prescribe a mode by which the amendment
or amendments may be submitted to the qualified voters of
the House of Representatives throughout the State; and if,
upon comparing the votes given in the whole State, it shall
appear that a majority of the voters voting thereon have
approved thereof, then, and not otherwise, the same shall
become a part of the Constitution.

N.C. Const. Article XIII, § 2 (1868) available at

https://www.ncleg.net/library/Documents/Constitution_1868.pdf (misspellings in

original). At the Convention in 1875, the people approved an amendment to the

provisions of the Constitution governing its amendment. They repealed the section

quoted above and adopted the following:

SEC. 2. No part of the Constitution of this State

shall be altered unless a bill to alter the same shall have
been agreed to by three-fifths of each House of the General
Assembly. And the amendment or amendments so agreed
'to shall be submitted at the next general election to the
qualified voters of the whole State, in such manner as may
be prescribed by law. And in the event of their adoption by
a majority of the votes cast, such amendment or
amendments shall become a part of the Constitution of this
State.

Read three times and ratified in open Convention,

this the 4th day of October, A. D. 1875.

Amendment XXIX, Convention 1875 available at

https://www.ncleg.net/library/Documents/Amdts_1875.pdf. Thus, as of 1875, while

the General Assembly still controlled “the manner” in which the people received a

proposed amendment, some of the other requirements of the earlier Constitution (e.g.,
 -20-

requiring two General Assemblies to agree to advance the proposed amendment to

the voters) were deleted.

The 1968 Constitutional Commission proposed slight modifications to Article

XIII, Section 4 of the Constitution regarding amendments beginning in the General

Assembly. See 1968 Constitutional Commission Report at 89 (1968). That proposal

was adopted and is the provision included in the current version of the Constitution.7

At the time of the 1968 study, the Commission noted that the provisions regarding

constitutional amendment were nearly a century old. Commission Report at 89. “The

proposed language incorporates established North Carolina theory and practice with

respect to the matters involved.” Id.

In addition to the provisions of Article XIII, Article I, Section 3 of the

Constitution also gives the people the sole and exclusive right to amend the

Constitution:

The people of this State have the inherent, sole, and

exclusive right of regulating the internal government and
police thereof, and of altering or abolishing their
Constitution and form of government whenever it may be
necessary to their safety and happiness; but every such
right shall be exercised in pursuance of law and
consistently with the Constitution of the United States.

N.C. Const. art. I, § 3. The limitations on amending the Constitution are only those

that might flow from the United States Constitution.

7 When the Governor was granted veto power through amendment of the Constitution
in 1996, proposed constitutional amendments were expressly excepted from his veto
power. See 1995 N.C. Sess. Laws 5; N.C. Const. art. II, § 22.
 -21-

Where the text of our Constitution makes clear that the commitment of the

power to propose and submit constitutional amendments is reserved for the General

Assembly, the issue is a political question that this Court has no authority to review.8

As the United States Supreme Court recognized in Baker v. Carr, 369 U.S. 186, 217

(1962), any one of the following conditions may give rise to a non-justiciable political

question:

… a textually demonstrable constitutional commitment of the issue to a

coordinate political department; or a lack of judicially discoverable and
manageable standards for resolving it; or the impossibility of deciding
without an initial policy determination of a kind clearly for nonjudicial
discretion; or the impossibility of a court's undertaking independent
resolution without expressing lack of the respect due coordinate
branches of government; or an unusual need for unquestioning
adherence to a political decision already made; or the potentiality of
embarrassment from multifarious pronouncements by various
departments on one question.

Id. (emphasis added).

Here, because the Constitution recognizes the right of the General Assembly

to propose amendments “at the time and in the manner prescribed by the General

8 Appellant’s arguments could be read or intended to imply that Appellees have

waived the ability to argue lack of subject matter jurisdiction based on the political
question doctrine because Appellees withdrew their appeal from the trial court’s 21
August 2018 Order on Injunctive Relief as it related to Session Laws 2018-117 and
2018-118, wherein, at the trial court, non-justiciability was raised as a defense.
However, “[t]he question of subject matter jurisdiction may be raised at any time,
even in the Supreme Court.” Lemmerman v. A.T. Williams Oil Co., 318 N.C. 577,
580, 350 S.E.2d 83, 85 (1986). And, subject matter jurisdiction “cannot be conferred
upon a court by consent, waiver or estoppel, and failure to demur or object to the
jurisdiction is immaterial.” Stark v. Ratashara, 177 N.C. App. 449, 451–52, 628
S.E.2d 471, 473 (2006). Neither the 21 August 2018 Order on Injunctive Relief nor
the trial court’s 31 August 2018 Order Denying Request for Temporary Restraining
Order adopted the political question doctrine, which was error, but the 30 August
2018 Order is the only order on appeal to this Court. (R. at 351-52.)
 -22-

Assembly,” and because it is the people of this State who have the “sole, and exclusive

right of regulating the internal government and police thereof, and of altering or

abolishing their Constitution,” there is no constitutional controversy for this Court to

decide. See, e.g., Brannon v. N.C. State Bd. of Elections, 331 N.C. 335, 340, 416 S.E.2d

390, 393 (1992) (“If the meaning of our Constitution is clear from the words used, we

need not search for a meaning elsewhere.”). Any judicial decision on the propriety of

the ballot language for the New Proposed Amendments would infringe on the balance

of powers struck within the Constitution itself. The Governor has no veto over

proposed constitutional amendments (or the accompanying ballot language). N.C.

Const. art. II, § 22. The judicial branch has no standard to measure “fairness” or

whether what might be considered a misleading proposal for amendment to one

person is not at all misunderstood by another. See, e.g., Hoke Cty. Bd. of Educ. v.

State, 358 N.C. 605, 639, 599 S.E.2d 365, 391 (2004) (“In our view, not only are the

applicable statutory and constitutional provisions persuasive in and of themselves,

but the evidence in this case demonstrates that the trial court was without

satisfactory or manageable judicial criteria that could justify mandating changes

with regard to the proper age for school children.”). If the courts attempt to decide

the challenge alleged by Appellant to the New Proposed Amendments, the courts

would be creating a separation of powers violation by performing the role of a

gatekeeper between the textual authority given to the General Assembly to propose

amendments and the textual (exclusive) right of the people to pass judgment upon

them.
 -23-

In his 23 August 2018 Memorandum of Dissent to Majority Order on Injunctive

relief, Judge Carpenter agreed that the challenge to the proposed amendments before

the three-judge panel—like the challenge to the New Proposed Amendments raised

by Appellant here—amounts to a political question. (R. at 160 (“I would find that the

matters presented by all Plaintiffs in both cases at bar are non-justiciable political

questions as the presentation of proposed constitutional amendments by legislative

act is placed squarely and solely with the General Assembly. See N.C. Const. art.

XIII, § 4.”).)

Appellant does not allege that the ballot questions for the New Proposed

Amendments violate the federal constitution (i.e., substantive due process).9 Absent

such allegations, for which there is a measureable standard for review, the

determination of the propriety of the language on the ballot for a proposed

constitutional amendment is a political question.

This Court is the final arbiter of the Constitution, subject to the right of the

people to amend their Constitution. When that amendment process, pursuant to the

plain and express language of the Constitution, does not include the courts, this Court

should decline jurisdiction and refuse to insert itself into the process. See Bank of

Union v. Redwine, 171 N.C. 559, 570, 88 S.E. 878, 883 (1916) (“We simply declare the

law as we find it, without usurping the power to change the Constitution, a power

9The requirement to comply with substantive due process is expressly built into our
Constitution. See N.C. Const. art. I, § 3.
 -24-

which the people have reserved to themselves.”); State v. Smith, 352 N.C. 531, 553,

532 S.E.2d 773, 787 (2000) (similar).

Addressing the non-justiciability of political questions, this Court in Bacon v.

Lee explained:

The political question doctrine controls, essentially, when

a question becomes “not justiciable ... because of the
separation of powers provided by the Constitution.” Powell
v. McCormack, 395 U.S. 486, 517, 89 S. Ct. 1944, 1961, 23
L.Ed.2d 491, 514 (1969). “The ... doctrine excludes from
judicial review those controversies which revolve around
policy choices and value determinations constitutionally
committed for resolution to the halls of Congress or the
confines of the Executive Branch. The Judiciary is
particularly ill-suited to make such decisions....” Japan
Whaling Ass’n v. American Cetacean Soc’y, 478 U.S. 221,
230, 106 S. Ct. 2860, 2866, 92 L.Ed.2d 166, 178 (1986). “It
is well established that the ... courts will not adjudicate
political questions.” Powell, 395 U.S. at 518, 89 S. Ct. at
1962, 23 L.Ed.2d at 515.

Bacon v. Lee, 353 N.C. 696, 717, 549 S.E.2d 840, 854 (2001). The policy choice here—

what language should be used on the ballot to present the New Proposed

Amendments to the voters—is textually committed to the General Assembly where,

in fact, at least three-fifths of that body debated and adopted the ballot language that

is to be used “in the voting systems and ballots.” See 2018 N.C. Sess. Las 132, 133.

This Court should not engage in public policy debate and attempt to weigh the

wisdom of the wording proposed to the voters of North Carolina.

Instead, in Bacon, because of its textual commitment, this Court rejected a due

process overlay on the clemency power of the Governor. “Thus, beyond the minimal

safeguards applied to state clemency procedures by Woodard, judicial review of the

 -25-

exercise of clemency power would unreasonably disrupt a core power of the

executive.” Bacon, 353 N.C. at 717, 549 S.E.2d at 854. The power to determine the

time and manner of proposing constitutional amendments is that branch’s alone;

adding more to the process than minimal safeguards by the judiciary would

unreasonably disrupt a core power of the executive.10

Unlike Cooper v. Berger, this case does not “involve[ ] a conflict between two

competing constitutional provisions.” 370 N.C. 392, 412, 809 S.E.2d 98, 110 (2018).

The Governor’s faithful execution of the laws is not implicated here because he has

no discretion to impose his own views and priorities on the ballot language. Session

Laws 2018-132 and 2018-133 both mandate (through the use of “shall be”) that the

ballot question, as written by the General Assembly is “to be used in the voting

systems and ballots.” As found in Bacon, the Governor’s exercise of clemency beyond

the rigorous review of the courts is not a separation of powers violation because

clemency is a core power of the executive. Similarly, the plain language of our

Constitution gives the power to propose amendments—subject to only minimal

judicial scrutiny—to the Legislature.

This Court should affirm the result of the trial court (i.e., denying injunctive

relief related to the New Proposed Amendments)—but for the reason that the

10 In some ways, what Appellant advocates would be similar to the judiciary inserting
itself into the normal legislative process between the Legislature enrolling a bill and
the presentment of that bill to the Governor before it becomes law. These
amendments, while acts of the General Assembly entitled to the presumption of
constitutionality, do not effectuate legal change until they are adopted by the voters.
Yet, Appellant seeks judicial review now—before adoption.
 -26-

Appellant’s challenge to the New Proposed Amendments in the Amended Complaint

constitutes a political question such that the courts lack subject matter jurisdiction.

II. APPELLANT IS NOT LIKELY TO SUCCEED IN HIS CHALLENGES TO

THE BALLOT LANGUAGE FOR THE NEW PROPOSED
AMENDMENTS.

Even setting aside the improper procedural posture of Appellant’s

extraordinary requests, his request for injunctive relief fails for a more fundamental

reason: the new ballot language is constitutional. The ballot language set forth in

Session Laws 2018-132 and 2018-133 does more than just inform the voters of the

substance of the proposed amendments; it also corrects the deficiencies perceived by

the three-judge panel below.

While this Court has de novo review of the constitutional issues before it, its

review is still deferential to the acts of the Legislature.

No rule of construction is better settled, both upon

principle and authority, than that legislative enactments
are presumed to be constitutional until the contrary is
shown. It is only when they plainly conflict with some
provision of the Constitution that they should be declared
void. The power of declaring laws unconstitutional should
always be exercised with extreme caution, and every doubt
resolved in favor of the statute. As has been well said,
these rules are founded on the best of reasons, because,
while the supreme judicial power may interfere to prevent
the legislative and other departments from exceeding their
powers, no tribunal has yet been devised to check the
encroachments of the judicial power itself.

Jenkins v. State Bd. of Elections of N. Carolina, 180 N.C. 169, 104 S.E. 346, 347

(1920). The “act” of proposing language to the people is an act of the General

Assembly that is entitled to the presumption of constitutionality. See Town of Boone

 -27-

v. State, 369 N.C. 126, 130, 794 S.E.2d 710, 714 (2016) (“An act of the General

Assembly will be declared unconstitutional only when it is plainly and clearly the

case and its unconstitutionality must be demonstrated beyond reasonable doubt.”)

(quotations and citations omitted). Consistent with Article II, Section 21 of the

Constitution, Session Laws 2018-132 and 2018-133 are valid acts of the General

Assembly, having been passed in both houses of the General Assembly and including

the required phrase “The General Assembly of North Carolina enacts . . . .” See, e.g.,

N.C. Const. art. II, § 21 (The style of the acts shall be: ‘The General Assembly of North

Carolina enacts:’.”); 2018 N.C. Sess. Laws 132; 2018 N.C. Sess. Laws 133. See also

Advisory Opinion in re House Bill No. 65, 227 N.C. 708, 713, 43 S.E.2d 73, 76 (1947)

(“The form set out in the quoted section prescribes that the legislative power shall be

exercised in a specific manner. A due observance of it is essential.”).

Not only must Appellant overcome the presumption of constitutionality given

the New Proposed Amendments, but also he must establish that he is entitled to the

extraordinary interlocutory relief sought. “Because a preliminary injunction is ‘an

extraordinary measure,’ it will issue only upon the movant’s showing that: (1) there

is a likelihood of success on the merits of his case; and (2) the movant will likely suffer

irreparable loss unless the injunction is issued[.]” VisionAIR, Inc. v. James, 167 N.C.

App. 504, 508, 606 S.E.2d 359, 362 (2004) (citing Ridge Cmty. Investors, Inc. v. Berry,

293 N.C. 688, 701, 239 S.E.2d 566, 574 (1977). A preliminary injunction “should not

be granted where there is a serious question as to the right of the defendant to engage

in the activity and to forbid the defendant to do so, pending the final determination
 -28-

of the matter, would cause the defendant greater damage than the plaintiff would

sustain from the continuance of the activity while the litigation is pending.” Bd. of

Provincial Elders v. Jones, 273 N.C. 174, 182, 159 S.E.2d 545, 551–52 (1968). Thus,

the trial court was correct in withholding interlocutory injunctive relief from

Appellant, and this Court should affirm.

A. Substantive due process can provide a standard under which to

analyze the ballot questions.

Appellant acknowledges that, prior to the majority of the trial court’s creation

of a standard for review of ballot language, there was no standard under North

Carolina law for what must be included on the ballot for consideration of a proposed

constitutional amendment. (See, e.g., Appellant’s Brief at 24.) Rather, as will be

discussed in more detail below, both Appellant and the trial court have erroneously

relied on decisions from other jurisdictions to support some kind of standard of

review. (R. at 139-41, ¶¶ 40-44.) However, given the express requirement in the

North Carolina Constitution that the people’s right to alter or abolish their

Constitution must be exercised “consistently with the Constitution of the United

States,” see N.C. Const. art. I, § 3, this Court can, more appropriately, be guided by

cases interpreting what constitutional amendment ballot language is required to

satisfy substantive due process under the Fourteenth Amendment. See, e.g., Burton

v. State of Ga., 953 F.2d 1266, 1271 (11th Cir. 1992) (“So long as the election process

is not so impaired that it is ‘patently and fundamentally unfair,’ substantive due

process is satisfied.”).
 -29-

In Burton, several citizens of Georgia challenged the ratification of a state

constitutional amendment regarding sovereign immunity, alleging the ballot

language was misleading in that it suggested the proposed amendment would

broaden the grounds for suing state officials, when the amendment allegedly made

such suits more difficult. See id. at 1267. The court held that the plaintiffs could

“prevail only ‘if the election process itself reaches the point of patent and fundamental

unfairness.’” Id. at 1269 (emphasis in original). According to the Burton court,

As long as citizens are afforded reasonable opportunity to examine the

full text of the proposed amendment, broad-gauged unfairness is
avoided if the ballot language identifies for the voter the amendment to
be voted upon. Therefore, substantive due process requires no more than
that the voter not be deceived about what amendment is at issue.

Id. “The critical issue, therefore, is not whether the ballot language reveals the entire

legal substance of the amendment, but rather whether it distinguishes the proposal

from any other on the ballot.” Bishop v. Bartlett, No. 5:06-CV-462-FL, 2007 WL

9718438, at *6–7 (E.D.N.C. Aug. 18, 2007), aff’d, 575 F.3d 419 (4th Cir. 2009). Like

in the current matter, “[w]hen the ballot language purports to identify the proposed

amendment by briefly summarizing its text, then substantive due process is

satisfied—and the election is not ‘patently and fundamentally unfair’—so long as the

summary does not so plainly mislead voters about the text of the amendment that

‘they do not know what they are voting for or against’; that is, they do not know which

or what amendment is before them.” Burton, 953 F.2d at 1270. Substantive due

process does not “impose[ ] an affirmative obligation on states to explain—some might

say speculate—in ballot language the potential legal effect of proposed amendments.”

Id.; see also Grudzinski v. Bradbury, No. CIV. 07-6195-AA, 2007 WL 2733826, at *2,
 -30-

6 (D. Or. Sept. 12, 2007) (where plaintiffs sought a temporary restraining order to

prohibit the defendants from printing the ballot title, explanatory statement, and

financial impact statement for a measure related to just compensation if after-

acquired land use restrictions lower the fair market value of property court held that

“the fact that the ballot title and explanatory statement may not explain or describe

the precise legal effect of [the measure] under every possible circumstance or

exception does not render it misleading or patently unfair.”).

In Sears v. State, 232 Ga. 547, 554, 208 S.E.2d 93, 99 (1974),11 the plaintiff

challenged a constitutional amendment related to general obligation bonds on the

grounds that “its provisions were not properly submitted to the voters and therefore

were not legally adopted.” According to the Georgia Supreme Court, although

Georgia law had previously required that ballot language be sufficient to allow the

voters “to intelligently pass upon any such proposed amendment,” at the time of the

challenge, “the only operative limitation is the requirement that the language be

adequate to enable the voters to ascertain on which amendment they are voting.” Id.

at 555, 208 S.E.2d at 99. The plaintiff argued that “[t]he improper submission is said

11Appellant argues that the cases relied on by Appellees involved federalism concerns
not at issue here. (Appellant’s Brief at 62.). However, Appellant ignores Appellee’s
reliance on Sears, a state court decision applying what amounts to the substantive
due process standard. Moreover, Appellant disregards that the Law of the Land
Clause in the North Carolina Constitution (see N.C. Const. art. I, § 19) is synonymous
with “due process of law” as used in the Fourteenth Amendment to the Federal
Constitution. See Rhyne v. K–Mart Corp., 358 N.C. 160, 180, 594 S.E.2d 1, 15 (2004);
see also Leonard v. Maxwell, 216 N.C. 89, 93, 3 S.E.2d 316, 320 (1939) (noting that
due process is, “ for all practical purposes,” the same under both the State and Federal
Constitutions).
 -31-

to flow from misleading and inconsistent language prescribed by the General

Assembly in describing the contents of the amendments on the ballots, with the result

that the language was not sufficient to identify the amendment and to show its

character and purpose,” but the court, recognizing that “ballot language is not a

proper subject for more than this minimal judicial review,” concluded that because

“the ballot language here in issue shows itself upon examination to be adequate to

identify the amendment to be voted upon, we rule that the Constitution was not

violated by its use and the amendment was not for this reason illegally adopted.” Id.

at 555-556, 208 S.E.2d at 99-100.

As discussed above, the creation of the language for the ballot is textually

granted by the Constitution to the General Assembly. Thus, a semantic debate about

the language used for the ballot questions is for the halls of the General Assembly,

not the briefs and arguments of counsel in this Court. To be clear, however, because

the ballot question for a proposed constitutional amendment in North Carolina does

not need to explain every possible circumstance, exception, or impact of the proposed

amendment—and never has—the ballot questions at issue are not misleading and

serve to identify readily the amendments at issue for consideration by the voters.

Session Law 2018-132 asks the citizens of North Carolina to vote for or 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
 -32-

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.

2018 N.C. Sess. Laws 132, § 6. This ballot question is not misleading. It clearly

identifies that the voters will be making changes to the process for nomination and

selection of judges for vacancy appointments and indicates that there will be an effect

on the Governor’s role in that process. The ballot language closely aligns with the

text of the proposed amendment; it does not misidentify or mislead concerning the

proposed constitutional amendment at issue.

Session Law 2018-133 asks the citizens of North Carolina to vote for or against:

Constitutional amendment to establish an eight-member

Bipartisan Board of Ethics and Elections Enforcement in
the Constitution to administer ethics and elections law.

2018 N.C. Sess. Laws 133, § 2. This language is also not misleading. For instance,

while there is currently a nine-member board that administers ethics and election

laws, it is a statutory creation that has existed nary a day without litigation brought

by Appellant challenging its structure as unconstitutional. See, e.g., Wake County

Superior Court Case No. 18 CVS 3348 (challenging the nine-member board

established by Session Law 2018-2). If ratified, the amendment set forth in Session

Law 2018-133 will establish in the Constitution an eight-member board to administer

ethics and election laws with a different structure than exists today under Chapter

163A.
 -33-

A. The cases and statutes cited by Appellant do not establish a

workable standard that could be applied in North Carolina.

Appellant advocates the adoption of standards applied in various other states.

Before giving credence to those foreign standards, however, it is important to examine

the similarities between the foreign jurisdictions’ constitutions and statutes and

North Carolina’s Constitution and statutes. “Failure to compare the foreign

constitutions with North Carolina’s lessens the persuasiveness of these citations.”

John V. Orth, Forever Separate & Distinct: Separation of Powers in N. Carolina, 62

N.C.L. Rev. 1, 10–11 (1983). That misfortune (lessening the persuasiveness) befalls

Appellant here.

In the two Ohio cases cited by Appellant, the Ohio Supreme Court applied a

specific constitutional provision found in the Ohio constitution that provides for

challenges to proposed amendments. See State ex rel. Voters First v. Ohio Ballot Bd.,

133 Ohio St. 3d 257, 263, 978 N.E.2d 119, 125 (2012); State ex rel. Bailey v. Celebrezze,

67 Ohio St. 2d 516, 519, 426 N.E.2d 493, 495 (1981). That constitutional provision

vests the Ohio Supreme Court with the “exclusive, original jurisdiction in all cases

challenging the adoption or submission of a proposed constitutional amendment to

the electors.” Ohio Const. Article XVI, § 1. It also expressly sets specific timeframes

for challenging the proposed language and establishes the specific standard for

review of ballot language, requiring that the ballot language not “mislead, deceive, or

defraud the voters.” Id.

Similarly, in Sears v. Treasurer & Receiver Gen., 98 N.E.2d 621 (Mass. 1951),

relied upon by Appellant, the Massachusetts Supreme Court explained that

 -34-

Massachusetts voters had previously adopted a constitutional process for presenting

and adopting initiatives by direct popular vote outside of the traditional legislative

process. Sears, 327 Mass. at 321, 98 N.E.2d at 629. The court summarized this

process as “a carefully prescribed manner and with certain precisely defined

safeguards designed to make certain that there should exist a wide popular demand”

for initiatives proposed under the direct vote process. Id. at 320, 98 N.E.2d at 629. In

applying that detailed process, the court noted that “when [the voters] seek to enact

laws by direct popular vote they must do so in strict compliance with those provisions

and conditions.” Id.

The Florida cases of Armstrong v. Harris, 773 So. 2d 7 (Fla. 2000) and Askew

v. Firestone, 421 So. 2d 151 (Fla. 1982) each construe Section 101.161, Florida

Statutes. That statute deals specifically with constitutional amendments and

requires that “the substance of such amendment . . . shall be printed in clear and

unambiguous language on the ballot . . . [as] an explanatory statement, not exceeding

75 words in length, of the chief purpose of the measure.” The existence of this statute,

and the long history of judicial review of constitutional amendments in Florida, are

why the court reads into or finds implicit in the Florida constitution a requirement

that the proposed amendment be accurately represented. See Armstrong, 773 So. 2d

at 23 (Harding, J., concurring).

Reliance on decisions out of Maryland is similarly unpersuasive given the

statutes (none of which is cited by Appellant or the trial court) specifically dealing

with the proposal of constitutional amendments. See, e.g., Maryland Code §§ 7-103
 -35-

and 7-105 (dealing specifically with ballot questions); Stop Slots Md 2008 v. State Bd

of Elections, 34 A.3d 1164, 1168, n.2, 3, 4, 5 (Ct. App. Md. 2008) (construing these

provisions). 12 The amendment process in Maryland’s constitution is also more

similar to the process as it existed in the North Carolina Constitution in 1868, with

limitations on timing and requirements on publication, than it is to North Carolina’s

current Constitution. See Md. Const. Article XIV, § 1.

In Kimmelman v. Burgio, 497 A.2d 890 (N.J. App. Div. 1985), the court was

not constructing a ballot question but rather an “Interpretative Statement” of the

amendment to be included on the ballot. See N.J. Stat. Ann. § 19:3-6 (“The printed

phrasing of said question on the ballots shall clearly set forth the true purpose of the

matter being voted upon. Where the question concerns any amendment to the State

Constitution . . . the printed phrasing on the ballots shall include a brief statement

interpreting the same.”). The Court in Kimmelman, therefore, was concerned that

the interpretative statement—not the ballot question—was misleading for failing to

apprise voters of current legal standards.

Idaho, another jurisdiction relied upon by Appellant, does not appear to have

a constitutional provision addressing the standards of ballot language and, therefore,

has not necessarily adopted rigorous requirements for ballot questions. “The

questions submitted should be the same questions proposed as the amendment or

12Stop Slots does reference Maryland Code § 9-203, which the Board relies on as
evidence of its ability to thwart constitutional amendment ballot questions in North
Carolina. (See Board’s Brief at 15.) However, that section of the Maryland Code is
not specific to ballot questions for constitutional amendments but is rather a general
standard for ballots. See Stop Slots, 34 A.3d at 1191, n.25.
 -36-

amendments. The Legislature cannot propose one question and submit to the voters

another.” Lane v. Lukens, 283 P. 532, 533 (1929) (striking ballot language that said

office terms would be “limited” to four years when the amendment itself was

increasing the terms from two to four years). That standard is consistent with

substantive due process protections and, as shown supra, is satisfied by the ballot

language set forth in Session Laws 2018-132 and 2018-133.

Finally, in Donaldson v. Dep’t of Transp., 262 Ga. 49, 51, 414 S.E.2d 638, 640

(1992), the court noted that Georgia “formerly had a statute that required ballot

language to enable the voter to ‘pass intelligently’ on the proposed amendment.”

Since the statute’s repeal, however, the Georgia Supreme Court “has conducted only

a minimal review of ballot language if the state followed all of the constitutionally

and statutorily required procedures for amending the constitution, including

printing, publicizing and distributing the amendment.” Id. As noted in Sears, 232

Ga. at 554, 208 S.E.2d at 99 discussed above, the Georgia constitution, as amended,

is similar to North Carolina’s. The Donaldson court went on to hold:

Although we believe that the legislature should in every instance strive

to draft ballot language that leaves no doubt in the minds of the voters
as to the purpose and effect of each proposed constitutional amendment,
there are several reasons for limiting the scope of our review. First,
constitutional amendments are often complex. Any summary of the
proposal may be subject to various interpretations. Even the legislators
who sponsor an amendment may not agree on the purpose and effect of
a particular amendment. Moreover, the court must trust the people and
the political process to determine the contents of the Constitution. We
must presume that the voters are informed on the issues and have
expressed their convictions in the ballot box.
 -37-

Id. Appellees submit that Donaldson actually supports their position; ballot language

can be interpreted in different ways by different people, but such different

interpretations do not render the language misleading, unfair, or inaccurate. And it

should be left to the voters – not the Governor and not the courts – to decide if an

amendment is appropriate or not.

North Carolina has no constitutional or statutory provisions that mirror the

provisions applied by the courts in Ohio or Massachusetts. Rather, similar to

Georgia, Article XIII, Section 4 commits broad authority to the General Assembly to

provide for the “time and manner” of the proposed amendments. N.C. Const. art.

XIII, § 4. This Court has interpreted our Constitution to leave the proposal up to the

General Assembly.

In Reade v. City of Durham, 173 N.C. 668, 92 S.E. 712, 715 (1917), the date the

amendment took effect was not included in the ballot question but was set forth in

the proposed amendment itself. On a challenge to the effective date of the

amendment, this Court implicitly held that the challenge involved a political question

but expressly noted that the ballot question was only the call of the General

Assembly.

[T]he submission should take place only “in such manner

as may be prescribed by law,” and this means no more or
less than that the Legislature may have complete control
of the submission, which is not confined to the mere act of
voting, but embraces all measures necessary to put in force
the will of the people as expressed at the ballot box. The
power given to the General Assembly to submit
amendments to the people is a general and unrestricted
one, in the sense that they may, without any limitation,
prescribe the method by which this shall be done; in other
 -38-

words, the procedure throughout, and from beginning to

end.

Reade v. City of Durham, 173 N.C. 668, 675, 92 S.E. 712, 715 (1917). The Court went

on to hold that because the amendment was not set out in the ballot except in a “brief

synopsis,” the people had to refer to the act of the General Assembly for additional

information. Id. “So when they voted for the amendments, it was necessarily an

approval of the time fixed for their taking effect.” Id. Because the act, which set the

effective date of the amendment, was widely distributed (in 1917) with copies of the

Constitution, the Court found this sufficient to give due notice to the people of the

effective date on which they were voting. Id. In its consideration of the challenge to

the ballot language and the passage of the amendment, this Court did not create a

standard specific to amendments but rather indicated that minimal judicial review

was appropriate. In contrast, the Board aptly identifies the standard adopted by the

trial court as “rigorous,” and “necessary to protect the voters’ constitutional right to

decide on proposed constitutional amendments.” (Board’s Brief at 21.) However, as

our Constitution and Reade indicate the only appropriate level of review of ballot

language for a constitutional amendment is whether it meets substantive due

process. This Court should not adopt such a rigorous test.

In addition to his reliance on cases from other states, Appellant relies on Sykes

v. Belk, 278 N.C. 106, 123, 179 S.E.2d 439, 449 (1971), to support his argument for

the adoption of a rigorous standard of review of ballot questions for constitutional

amendments. (See Appellant’s Br., p.21; Board Br., p.12.) Such reliance is misplaced.

In Sykes, during a campaign for the issuance of bonds to provide for a civic center to
 -39-

be built in Charlotte, speeches in favor of the bond and newspaper articles reported

that the civic center would be built on the Brevard Street site, but no site location

was specified in the question presented on ballot. After the bond referendum passed,

the city council approved construction on the Trade Street site, and several citizens

brought an action to enjoin the expenditure of funds for construction of a civic center

that would be located at the Trade Street site rather than the Brevard Street site.

This Court found that any misrepresentation made during the campaign as to the

site of the civic center did not vitiate the ballot question submitted to the voters.

Thus, at issue in Sykes were purportedly misleading representations made during

the campaign – not allegedly misleading ballot questions.

Moreover, while Appellant indicates that, in Sykes, this Court reasoned that

the referendum could have been invalidated had the ballot itself contained any

“‘misleading statement or misrepresentation,’” (see Appellant’s Brief at 21), Sykes

simply does not so hold. The language that Appellant quotes (“misleading statement

or misrepresentation,” Sykes, 278 N.C. at 119, 179 S.E.2d at 447) is part of a

discussion of an Oklahoma case in which the Oklahoma court considered the failure

of the ballot to include certain detailed information required by the express language

of the Oklahoma constitution. This Court concluded that the North Carolina

Constitution did not contain a similar requirement and that there

was no “misleading statement or misrepresentation” on the ballot anyway. Id.

Ultimately, the court held that the selection of the Trade Street site did not

amount to a “substantial deviation from the purpose for which the bonds were
 -40-

proposed. There is no showing that plaintiffs were Prejudicially mislead.” Id. at 122,

179 S.E.2d at 449. Cases since Sykes have echoed this “substantial deviation”

standard. See,e.g., Reese v. Mecklenburg Cty., 200 N.C. App. 491, 503, 685 S.E.2d 34,

41 (2009) (“There is no substantial deviation from the purpose for which the bonds

were proposed.”). Whether the material on the ballot “substantially deviates” from

that in the amendment does not support a rigorous review, but something more akin

to the minimal judicial review associated with substantive due process.

The trial court, in addition to relying on decisions from foreign jurisdictions as

a basis for the standard under which to review ballot language for constitutional

amendments, relied on Hill v. Lenoir Cty., 176 N.C. 572, 97 S.E. 498, 499 (1918). In

Hill, a special tax was put on the ballot. The ballot language referenced only a county

tax and made no mention of a township tax. The county tax was defeated at the polls

by county-wide voters, but voters in the township of Kinston had voted in favor of the

special tax. Thus, the board of commissioners declared that a special tax in Kinston

township had passed. A challenge was brought, and a preliminary injunction was

entered restraining the board from levying and collecting the special tax in Kinston.

The Court held that if the statute under which the tax was put on the ballot

“permitted the submission of the twofold proposition, one for the county tax and one

for the township tax, to be based upon a single ballot, such intention on the part of

the Legislature is contrary to public policy and against the decisions of this court.”

Hill, 176 N.C. at ___, 97 S.E. at 499. The Court’s focus was on whether two
 -41-

propositions (e.g., a county tax and a township tax) could be submitted to a single

vote of the people:

But under the act of 1911 every single voter who casts his vote in favor
of the tax for the entire county, under the defendants' construction of
the act, also votes for the tax for his township, regardless of his attitude
toward the question of levying the tax solely in the township in which
he resides. The two propositions are so antagonistic that their
submission at a single election and upon a single ballot is contrary to
the Constitution, as we will show, to a sound public policy, and to the
principle which should govern a fair election

Hill, 176 N.C. at ___, 97 S.E. at 500. This Court went on to hold that:

In elections of this character great particularity should be required in

the notice in order that the voters may be fully informed of the question
they are called upon to decide. 15 Cyc. 325. There is high authority for
the principle that, even where there is no direction as to the form in
which the question shall be submitted to the voters, it is essential that
it be stated in such manner as to enable them intelligently to express
their opinion upon it, and for that purpose the proposition should be
submitted separate and distinct from any other proposition, which is
different from the question upon which a vote is desired, or not germane
to it.

Id. at ___, 97 S.E. at 500-501 (emphasis added).

Hill is not controlling, nor is it sufficiently persuasive for creating a standard

of review. 13 There was no question before the Supreme Court regarding ballot

language for proposed constitutional amendments. What was before the Hill court –

can more than one proposition be included in a single vote – is not at issue here

13 Hill does further support Appellees’ argument that Appellant will not suffer
irreparable harm if a writ is issued and if the ballot language is included on the
ballots given that the challenge was brought after the election and ultimately
enjoined the township tax.
 -42-

because each of the proposed constitutional amendments is to be presented on the

ballot separately.

Further, N.C. Gen. Stat. § 163A-1108 does not provide a basis for the injunctive

relief sought by Appellant. Foremost, the trial court determined that § 1108 is not a

“standard for interpretation of the North Carolina Constitution” and therefore was

not within the purview of the panel under N.C. Gen. Stat. § 1-267.1. (R. at 138, ¶ 37.)

Moreover, the statute does not have the reaching effect Appellant (and the Board)

advance.

Section 1108 was first created in Chapter 163 as N.C. Gen. Stat. § 163-165.4

(2001). See Session Law 2001-460, § 3. The passage of Session Law 2001-460 was a

culmination of efforts to combine election methodology across the state into

mechanical or electronic voting under what was then Article 14A because, by 2001,

only three counties used paper ballots (covered by Article 13), and 97 counties used

mechanical or electronic systems (covered under Article 14). See Election Laws

Revision Committee, Final Report to the 2001 Session of the 2001 General Assembly

of North Carolina at 21 (2001), available at

https://ncleg.net/Library/studies/2001/st11388.pdf.

Proposal V merges and updates Articles 13 and 14, of

Chapter 163 to conform to modern election practices.
Instead of very specific instructions for hand-counted paper
ballots in Article 13 and the carte blanche rulemaking
authority to the State Board for everything else in Article
14, the rewrite wipes out that distinction, giving the State
Board guidelines to use in making rules that apply to all
technologies.
 -43-

Id. Thus, the language in N.C. Gen. Stat. § 163-165.4, regarding “Standards for

official ballots” grew out of a need to set “general principles that are technologically

neutral” and to give some guidance to “promulgat[ing] rules for different voting

methods.” North Carolina Administrative Code section 08 N.C.A.C. 06B.0101-.0102

regarding general ballot guidelines has not been expanded through any rulemaking.

In 2013, as part of election law changes regarding voter identification, N.C. Gen. Stat.

§ 163-165.4 (2013) amended the words “shall seek to ensure” to just “shall ensure.”

N.C. Gen. Stat. § 163-165.4 was recodified to Chapter 163A, unchanged, by Session

Law 2017-6. Nothing about the original Election Laws Revision Committee, its Study

Report, or the language of the statute itself was intended to alter how constitutional

amendments are presented to the people. Rather, its history shows it grew out of the

need for a more uniform system of elections in all 100 counties.

Both Session Law 2018-132 and Session Law 2018-133 direct the Board to

print the language on the ballot as set forth by the General Assembly. In Limmer v.

Ritchie, 819 N.W.2d 622, 629 (Minn. 2012), the Minnesota Supreme Court resolved a

similar challenge to ballot language based on a more general statute regarding ballots

via traditional principles of statutory interpretation and the constitutional principle

(that also exists in North Carolina) to avoid construction of a statute that would

render the statute unconstitutional. Under principles of statutory construction

applicable here, there is no conflict between these laws.

It is a well–recognized principle of statutory construction

that, when there are two acts of the Legislature applicable
to the same subject, their provisions are to be reconciled, if
this can be done by fair and reasonable intendment; but, to
 -44-

the extent that they are necessarily repugnant, the latter

shall prevail . . . . Again, it is established that where a
general and a special statute are passed on the same
subject, and the two are necessarily inconsistent, it is the
special statute that will prevail, this last being regarded
usually as in the nature of an exception to the
former.

Kornegay v. City of Goldsboro, 180 N.C. 441, 452, 105 S.E. 187, 192 (1920).

Section 1108 was not intended to unlock a reservoir of power for the Board

such that the Board can ignore the express mandate of the General Assembly

regarding language that should be included on the ballot if the Board finds such

language to be unfair. Section 1108 also was not designed as or intended to be a

legislative standard under which the courts are to review the ballot question for a

proposed constitutional amendment.

Appellees do not claim that the Constitution gives the General Assembly “cart

blanche to place misleading questions on the ballot when proposing constitutional

amendments, and the courts cannot do anything about it.” (Appellant’s Brief at 52-

53.) Rather, Appellees contend that the ballot questions challenged here are not

misleading; they are not fundamentally unfair; and they provide ample information

such that voters can easily discern what amendment is before them. Moreover, given

the express language of the Constitution, which commits the proposal of

constitutional amendments to the General Assembly, and given that there is no clear

standard for what constitutes a “fair and accurate” ballot question under North

Carolina law, Appellees dispute that Appellant can overcome the presumption of

constitutionality of the New Proposed Amendments to establish that he is likely to

 -45-

succeed on the merits on his claims that the ballot questions at issue are

unconstitutional. This is not an “extraordinary standard,” as claimed by Appellant,

(see id.), but rather the applicable standard identified in our Constitution and our

State’s case law on constitutional amendments. It is Appellant who argues that this

Court should apply the rigorous, new standard adopted by the trial court or, frankly,

given that the trial court denied the injunctive relief he seeks, any standard that

keeps the people from North Carolina from voting on these issues.

B. Even under the rigorous standard used by the trial court, the
ballot language for the New Proposed Amendments was
determined to pass constitutional muster, and this Court should
affirm.

Although Appellees disagree that the rigor of the standard adopted by the trial

court in its 21 August 2018 Order, (see R p 122-152), and incorporated into its 31

August 2018 Order, (R p 338), is necessary or appropriate under our Constitution,

the trial court nonetheless correctly held that ballot language in Session Laws 2018-

132 and 2018-133 met its standards. The New Proposed Amendments meet the trial

court’s concerns with the ballot language in Session Laws 2018-117 and 2018-118 and

also exceed substantive due process protections, see supra. Because the New

Proposed Amendments satisfy the even-stricter standard applied by the three-judge

panel than is required by our Constitution, Appellants cannot establish they are

likely to succeed on the merits of their challenge. As a result, this Court should

affirm.

Generally speaking, the trial court held that voters need to be sufficiently

informed about what they are being called to vote upon in order to express
 -46-

intelligently their opinions upon the issue. (See R p 140-41) (citing Hill). Thus, the

trial court found the relevant considerations to include: (1) whether the question

clearly makes known to the voter what is being voted on; (2) whether the question

fairly presents the primary purpose and effect of the amendment; and (3) whether

the language in the question implies a position in favor of or opposed to the proposed

amendment. (See R p 141). The trial court noted, however, that our Constitution

does not require the ballot language to “explain all potential legal ramifications of the

amendment.” (R p 143). Moreover, neither the proposed amendment nor the ballot

question must address the presence or lack of implementing language. (R p 144).

The trial court also correctly noted that it is not the court’s role to determine the

“wisdom of the legislation, its political ramifications, or the possible motives of

legislators in submitting the issue to voters in the form of a proposed constitutional

amendment.” (R pp 144-45).

In sum, in its analysis of the ballot language, the trial court considered

whether the ballot question describes the proposed amendment with sufficient

particularity such that the voters may be fully informed regarding the issue they are

asked to decide. (R pp 146-47). Appellant argues that because the voters from

Murphy to Manteo cannot appreciate the level of change the passage of the

amendments might, down the line, create, the voters should not even be given the

opportunity to consider the New Proposed Amendments. But ballot questions are not

judged on whether they aptly interpret every possible legal ramification of the

proposed amendment. And the trial court did not adopt a standard under which the
 -47-

ballot question must do more than make known to the voters what they are voting on

and explain the legal ramifications of the amendment. See, e.g, Donaldson, 414

S.E.2d at 640 (“Even the legislators who sponsor an amendment may not agree on

the purpose and effect of a particular amendment.”); Kimmelman, 497 A.2d at 890

(unlike under North Carolina law, the ballot contained not only a question but an

“interpretative statement”). In fact, if there were no ballot question at all, but,

instead, the entire proposed amendment was reproduced on the ballot for voters’

consideration, Appellant would still make the same arguments about legal effect he

makes before this Court. As such, Appellant’s challenges are not to the ballot

question but rather to the proposed amendments themselves. Whether to allow the

proposed amendments is a question for the people, not the Court.

1. Session Law 2018-133

Session Law 2018-133 proposes a constitutional amendment that would

establish the New Board in Article VI (Suffrage and Eligibility to Office) of the

Constitution but makes no changes to any other provision of the Constitution. See

2018 N.C. Sess. Laws 133, § 1. Thus, Session Law 2018-133 is significantly narrower

than Session Law 2018-117.

Does the ballot question in 2018-133 describe the proposed amendment with

sufficient particularity in order that the voters may be fully informed of what they

are deciding?

For or Against: Constitutional amendment to establish an

eight-member Bipartisan Board of Ethics
and Elections Enforcement in the
 -48-

Constitution to administer ethics and

elections law.

The answer is yes.

The ballot language in Session Law 2018-133 explains that the New Board

would be established as a constitutional—rather than statutory—board. 2018 N.C.

Sess. Laws 133, § 2. “In the constitution” or “places in the constitution” is the type of

phrase that even the concurring judge in Evans v. Firestone, 457 S0. 2d 1351, 1359

(1984) (Ehrlich, J., concurring), noted was sufficient to alert voters that a statutory

or procedural rule would be added into the constitution.

Further, as opposed to the current nine-person board established by statute,

the ballot language in Session Law 2018-133 informs voters that the New Board will

be an eight-person board. Id. The ballot language does not forecast hypothetical

situations that might arise about potential deadlock, but these type of explanations

are not what the General Assembly has been held to in the past. For instance, in

Session Law 1995-5 the voters were asked to vote “For or Against: Constitutional

amendments granting veto power to the Governor.” That short statement was all

that was included on the ballot. There was no explanation of how granting veto power

to the Governor would change the passage of laws, whether the Governor had 10 or

30 days to act, what would happen if the Governor failed to act, or what exceptions

there would be to the veto power. Under Session Law 1969-1200, the following

language was placed on the ballot (without judicial review): “For or Against:

Constitutional amendment revising those portions of the present or proposed State

 -49-

Constitution concerning State and local finance.” There was no explanation for what

was a major overhaul of the State tax system.

The ballot language succinctly lays out the proposed amendment that the

voters are asked to consider, fairly identifies that the primary purpose and effect of

the amendment is to establish the New Board in the Constitution, and does not imply

a position in favor of or opposed to the proposed amendment. (R p 141).

The ballot language set forth in Session Law 2018-133 is similar to but even

more detailed than the ballot language set forth in Session Law 2018-117 that was

unobjectionable to the three-judge panel below. The panel noted that “saying that

the amendment ‘establishes’ a [B]oard,” is not “so misleading, standing alone, so as

to violate constitutional amendments.” (R p 145). The language the panel took issue

with is not found in Session Law 2018-133 because the proposed amendment no

longer includes the provisions identified by such language.

2. Session Law 2018-132

Session Law 2018-132 sets forth a virtually identical proposed amendment to

that found in Session Law 2018-118. Unlike the prior constitutional proposal,

though, Session Law 2013-132 makes the ballot language more express.

Does the ballot question in 2018-132 describe the proposed amendment with

sufficient particularity in order that the voters may be fully informed of what they

are deciding?

For or 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
 -50-

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.

The answer is yes.

The ballot language indicates that voting for the amendment would mean that

the Governor would no longer have the sole authority to appoint judges to fill

vacancies. 2018 N.C. Sess. Laws 132, § 6. It also explains that voting for the

amendment would involve in the vacancy process nominations by the general public,

as well as other branches of government, while still retaining the Governor’s

authority to appoint judges to fill vacancies. Id. This revised language resolves the

issues identified by the three-judge panel below. Unlike Session Law 2018-118, the

new ballot language expressly mentions the Governor, (R p 147), and omits references

to the types of qualifications to be applied by the recommending commission, (id.).

The ballot language also references each provision of the Constitution that would be

changed (vacancies in Article IV and the gubernatorial veto in Article II) and makes

clear that only recommendations for nominees and election of nominees are excepted

from the Governor’s veto authority. 2018 N.C. Sess. Laws 132, § 6.

The question clearly makes known what is being voted on—a change in the

process of how judicial vacancies are filled. The question fairly presents the primary

purpose and effect of the amendment; the ballot question describes the proposed

system for filling vacancies in sufficient detail and highlights that the Legislature

would recommended at least two nominees that the Governor cannot veto but must
 -51-

choose between. In other words, the ballot question specifically identifies that the

Legislature will recommend at least two people, not subject to gubernatorial veto, and

that the Governor must choose from those nominees. The Governor’s choice would be

limited. It is the people’s choice, however, to determine whether they want to move

to that system or not; it is not for this Court to withhold this proposed amendment

from the voters because Appellant (or his predecessors) do not like the change.

The language in the question does not imply a position in favor of or opposed

to the proposed amendment. If the people like the current process pursuant to which

the Governor has sole authority for filling judicial vacancies, they are free to reject

the proposed amendment. If the voters prefer a process in which the Legislature and

a commission are involved, then they can vote for this amendment. There is no

attempt to sway or frame the issue. Arguments about “sole appointment power” are

misplaced, as that is, in fact, an accurate description of the Governor’s authority in

the Constitution. Although N.C. Gen. Stat. § 7A-142, regarding district court judges,

states that “[a] vacancy in the office of district judge shall be filled for the unexpired

term by appointment of the Governor,” it notes that recommendations by bar

associations are to be given “due consideration.” The fact that the Governor is to give

“due consideration” to recommendations does not require him to follow those

recommendations. The Governor alone fills the vacancies.

Therefore, the new ballot language resolves any issues identified by the three-

judge panel below, as determined by that panel, regardless of whether Appellant

 -52-

agrees with that ruling. Accordingly, Appellant is unlikely to succeed on his appeal,

and the trial court’s result should be affirmed.

III. APPELLANT CANNOT SHOW IRREPARABLE HARM

Appellant14 argues that a violation of the Constitution gives rise to irreparable

harm as a matter of law.15 (Appellant’s Brief at 64.) However, none of the cases on

which Appellant relies in support of this proposition specifically considers whether

preliminary injunctive relief was appropriate or establishes that preliminary

injunctive relief should be granted merely because a litigant has alleged that a

statute is unconstitutional.16 See High Point Surplus Co. v. Pleasants, 264 N.C. 650,

14 The Board argues that “misleading or otherwise unfair ballot questions pose
several types of irreparable harm,” but stops short of arguing that the ballot questions
set forth in the New Proposed Amendments are, indeed, misleading. (Board’s Brief
at 21.)
15As shown in his discussion of irreparable harm, Appellant’s real target is the New
Proposed Amendments themselves, not the ballot language. He claims that “these
ballot questions threaten to strip the Governor of constitutional authority over the
Board and constitutional power to fill judicial vacancies . . . .” (Appellant’s Brief at
64.) Of course, it is the proposed amendments—not the ballot questions—that could
have the alleged effect of stripping the Governor of authority.
16 Of course, the decree of a preliminary injunction “bears no precedent to guide the
final determination of the rights of the parties.” State v. Fayetteville St. Christian
Sch., 299 N.C. 351, 357–58, 261 S.E.2d 908, 913, on reh’g, 299 N.C. 731, 265 S.E.2d
387 (1980); see also Town of Boone v. State, 368 N.C. 420, 421, 777 S.E.2d 759, (Mem)–
760 (2015) (finding no appeal of right under N.C.G.S. § 7A–27(a1) (2014), which
requires entry of an order or judgment holding an act of the General Assembly facially
unconstitutional because order issuing preliminary injunction found only a likelihood
of success on the merits). Thus, a finding of likelihood of success on a constitutional
challenge to a statute at the preliminary injunction stage does not guarantee that the
challenged statute will, ultimately, be found unconstitutional. See, e.g., Town of
Boone v. State, 369 N.C. 126, 137, 794 S.E.2d 710, 718 (2016) (reversing decision of
the three-judge panel (which had previously entered a preliminary injunction) that
held the challenged statute unconstitutional).
 -53-

656, 142 S.E.2d 697, 702 (1965) (concluding that the challenged statute regulating

Sunday sales of merchandise was a local statute that was void by the express

provisions of Article II, section 29 of the Constitution); State v. Underwood, 283 N.C.

154, 163, 195 S.E.2d 489, 495 (1973) (expressing the general proposition that “the

constitutionality of a Sunday ordinance is usually tested in a civil action to enjoin the

enforcement of the ordinance under the well-established exception which permits

such actions upon the allegation that injunctive relief is essential to the protection of

property right and the rights of persons against injuries otherwise irremediable,” but

concluding that there was “no constitutional infirmity in the ordinance” at issue);

Ross v. Meese, 818 F.2d 1132, 1134–35 (4th Cir. 1987) (holding that, where plaintiff

alleged a violation of her Fourth Amendment rights and at least a colorable claim of

a violation of other rights, it is “clear that the district court had jurisdiction to give a

declaratory judgment as to whether constitutional rights were violated and if so to

order appropriate injunctive relief.”) (emphasis added.)

Rather, as recognized by this Court, the “general rule” is that

‘The usual ground for asking injunctive relief against the enforcement
of statutes is their invalidity, but that, of itself, is not sufficient to
warrant the exercise by equity of its extraordinary injunctive power. In
other words, the mere fact that a statute is alleged to be unconstitutional
or invalid will not entitle a party to have its enforcement enjoined.
Further circumstances must appear bringing the case under some
recognized head of equity jurisdiction and presenting some actual or
threatened and irreparable injury to complainant’s rights for which
there is no adequate legal remedy. If it is apparent that the law can
furnish all the relief to which the complainant is entitled, the injunction
will be refused.’
 -54-

Fox v. Bd. of Comm’rs of Durham Cty., 244 N.C. 497, 500, 94 S.E.2d 482, 485 (1956)

(quoting 28 Am. Jur., Injunctions § 182). Beyond his allegations that the New

Proposed Amendments are unconstitutional, Appellant is not able to show the

necessary “further circumstances.”

Appellant erroneously argues that any injuries from the alleged constitutional

violations “cannot be undone by a merits ruling in [his] favor after the ballots are

printed.” See Appellant’s Brief at 65. To the contrary, while entry of a preliminary

injunction that allows the preparation of the ballots without the amendments set

forth in Session Laws 2018-132 and 2018-133 would block the amendments from the

people and leave Appellees with no further review, denying such injunctive relief

would not moot Appellant’s claims or create irreparable harm.

The courts in at least three of the cases relied on by Appellant rejected the

challengers’ pre-election requests to prohibit the challenged proposed amendments

from being placed on the ballot. In Armstrong, the Florida Supreme Court explained

that it had previously denied mandamus relief regarding inclusion of the amendment

on the ballot sought in the Supreme Court in the first instance, thus requiring the

plaintiff to file in the trial court and follow applicable appellate

procedures. Armstrong, 773 So. 2d at 9. Similarly in Nez Perce Tribe, the Idaho

Supreme Court explained that it had previously denied mandamus relief in the

Supreme Court prior to the election, so the amendment was included on the

ballot. Nez Perce Tribe v. Cenarrusa, 125 Idaho 37, 38, 867 P.2d 911, 912 (1993). And,

finally, in McDonough, the Maryland Supreme Court approved of the trial court’s
 -55-

delay in resolving the dispute over the ballot language filed just three days before the

election until after the election due to the unreasonable time constraints. Anne

Arundel Cty. v. McDonough, 277 Md. 271, 279–80, 354 A.2d 788, 793 (1976).

Additionally, other cases cited by the Governor involved challenges occurring after

the election. Lane v. Lukens, 48 Idaho 517, 283 P. 532, 532 (1929); Sears v. Treasurer

& Receiver Gen., 327 Mass. 310, 321, 98 N.E.2d 621, 629 (1951). Even in Reade, 173

N.C. at 668, 92 S.E.2d at 712; Hill, 176 N.C. at 572, 97 S.E. at 499; and Bishop v.

Bartlett, 575 F.3d 419, 422 (4th Cir. 2009), the courts were analyzing the language

after the voters considered the proposals during an election. Just as in those cases,

Appellant can continue his challenge to the constitutionality of the ballot language

before or after the November 2018 election even if the New Proposed Amendments

are included on the ballot. As noted in Fox, “[i]f it is apparent that the law can furnish

all the relief to which the complainant is entitled, the injunction will be refused.” Fox,

244 N.C. at 500, 94 S.E.2d at 485.

Appellant also argues that voter education and open discourse about the New

Proposed Amendments cannot undo the perceived irreparable harm associated with

the challenged ballot language. See Appellant’s Brief at 66. Appellees disagree. Not

only is the full text of each of the proposed constitutional amendments that will

appear on the ballot easily accessible, but also Appellant (and any political parties,

political action groups, or public interest groups) may counter any alleged misleading

language through their own speech. See Grudzinski, 2007 WL 2733826, at *3 (finding

no irreparable harm where “plaintiffs may counter any alleged harm or misleading
 -56-

language through their own political speech.”); see also Donaldson v. Dep’t of Transp.,

262 Ga. 49, 51, 414 S.E.2d 638, 640 (1992) (“the court must trust the people and the

political process to determine the contents of the Constitution. We must presume that

the voters are informed on the issues and have expressed their convictions in the

ballot box.”). Moreover, by law, the Constitutional Amendments Publication

Commission will prepare an explanation of the amendment “in simple and commonly

used language” that

shall be printed by the Secretary of State, in a quantity

determined by the Secretary of State. A copy shall be sent
along with a news release to each county board of elections,
and a copy shall be available to any registered voter or
representative of the print or broadcast media making
request to the Secretary of State. The Secretary of State
may make copies available in such additional manner as
the Secretary may determine.

N.C. Gen. Stat. § 147-54.10. Voters can take such explanation or other educational

documentation or guides into the voting booth with them to aid in their decision. See

8 N.C. Admin. Code 10B.0107(a)(1) (permitting the use of “electronic, paper, or

mechanical devices by the voter, while alone in the voting booth and not in contact

with another person outside the voting booth”).

Appellant argues that uncontested evidence in the record confirms that

misleading ballot language inflicts harm. See Appellant’s Breif at 66. Appellees

disagree that there is such evidence in the record.17 Appellant relies on the Affidavit

17Moreover, Appellees have objected to the consideration of the Affidavit of Craig

Burnett, Ph.D. under Rules 403, 702, and 704 of the North Carolina Rules of
Evidence. (R. at 283 n.7.)
 -57-

of Craig Burnett, Ph.D., but Dr. Burnett’s affidavit and opinions are dated 10 August

2018, more than two weeks before the New Proposed Amendments were passed. (R.

at 96-104.) There is no indication that Dr. Burnett has reviewed the New Proposed

Amendments, and his opinions cannot be specific to the New Proposed Amendments.

(Id.) Moreover, while Appellant argues that Dr. Burnett’s research supports his

position that information outside the ballot cannot “undo the harm” from including

the New Proposed Amendments on the ballot, (see Appellant’s Brief at 66-67), Dr.

Burnett’s research concluded “that exposing individuals to basic campaign

information—in our case, endorsements from prominent interests groups—greatly

attenuates the framing effects of ballot text.” When Does Ballot Language Influence

Voter Choices? Evidence from a Survey Experiment, p1 (2015) (available at:

https://cpb-us-w2.wpmucdn.com/u.osu.edu/dist/e/1083/files/2015/02/stolenintiative-

21w55m1.pdf).

Appellant argues that the equities favor injunctive relief because of the

exigencies associated with the New Proposed Amendments, which Appellant claims

were created by the General Assembly. See Appellant’s Brief at 68-70. That simply

is not the case. Session Laws 2018-117 and 2018-118 (and the ballot language set

forth therein) were ratified by the General Assembly on 28 June 2018, some 39 days

before Appellant filed his original challenges in Superior Court. Appellant argues

that the ballot language was not clear until 4 August 2018, when Session Law 2018-

131 was passed over the Governor’s veto and set forth that the captions for all of the

amendments to appear on the November 2018 ballot would read “constitutional

 -58-

amendment.” See Appellant’s Brief at 68-69. However, at no point has Appellant

argued, nor does he suggest here, that a caption—which by its plain meaning would

be simply a short piece of identifying text—could render the ballot language

unobjectionable and constitutional in his eyes.18 In short, the prior amendment ballot

language was known for over a month before Appellant sued on 6 August 2018.

Session Laws 2018-132 and 2018-133 grew out of the litigation that Appellant

delayed in bringing. The three-judge Superior Court panel invited the General

Assembly to call itself back into session and redraft the ballot language so that it

could appear on the November 2018 ballot. (R. at 149-50, ¶ 61.) The General

Assembly did convene a special session, and the North Carolina House of

Representatives passed the New Proposed Amendments even before the three-day

stay of the trial court expired. Appellant cannot complain of irreparable harm

associated with the General Assembly’s response to the trial court’s Order on

Preliminary Injunction.

Further, there is no risk of Session Laws 2018-117, 2018-118, 2018-132, and

2018-133 all appearing on the ballot and confusing voters.19 Despite the preliminary

nature of the Order on Preliminary Injunction, it prevents the Board from including

18While Appellant might favor a caption that reads “Usurper General Assembly’s
Proposed Amendment to Strip the Governor of Power,” such hyperbolic language
would undoubtedly fail the standards that Appellant himself advocates here.
19 Appellant argues that the General Assembly’s failure to repeal Session Laws 2018-
117 and 2018-118 makes it possible that the Original Proposed Amendments and the
New Proposed Amendments could all end up on the ballot. (Appellant’s Brief at 69.)
However, any repeal or amendment of the Original Proposed Amendments might
have been subject to presentation to and review by the Governor, see N.C. Const. art.
II, § 22(1)-(2), which could have delayed ballot preparation.
 -59-

any ballot language associated with Session Laws 2018-117 and 2018-118 on the

November ballot. After the ballots are prepared and printed—actions that Appellant

concedes must begin in all due haste—it is possible that the litigation regarding the

standards applied to Session Laws 2018-117 and 2018-118 could take a different

course. For instance, the case could be dismissed or it could ultimately be determined

that the ballot language proposed in Session Laws 2018-117 and 2018-118 was

constitutional. However, by the time of such an outcome, there would be no way to

go back in time to prepare new ballots for the November election with the ballot

language from Session Laws 2018-117 and 2018-118. Given the current procedural

posture, there is no way for the amendments proposed in Session Laws 2018-117 and

2018-118 to appear on the ballot with the amendments proposed in Session Laws

2018-132 and 2018-133. Indeed, it is the intent of the General Assembly to proceed

through the election with just the amendments proposed in Session Laws 2018-132

and 2018-133 (along with the ballot questions set forth in Session Laws 2018-119,

2018-96, 2018-110, and 2018-128).

Appellant protests that he is irreparably harmed by what he alleges is

misleading ballot language, but the true focus of his attention is on the substance of

the proposed amendments themselves. The General Assembly has not enacted, via

statute, an eight-person board in charge of ethics and elections enforcement or a new

procedure for filling judicial vacancies. What the General Assembly has done is set

the time and manner for the people of North Carolina to decide for themselves

whether they want to reshape the Constitution. It is ultimately up to the voters

 -60-

whether to make the proposed changes. There is no irreparable harm in allowing the

voters the opportunity to consider the proposed amendments for ratification or

rejection, but there is irreparable harm in taking away the right of the people to have

that opportunity. No new law, court, or act of the people can undo such harm or

create a pathway for later examination of an election that has come and gone without

the New Proposed Amendments on the ballot.

CONCLUSION

For the foregoing reasons, this Court should affirm the result of the trial court

and dissolve its stay delaying the printing of the ballot. It is time for the people—not

the courts—to decide whether they want to change their Constitution.

 -61-

Respectfully submitted this the 2nd day of September, 2018.

NELSON MULLINS RILEY & SCARBOROUGH LLP

By: /s/ Electronically Submitted

D. Martin Warf
N.C. State Bar No. 32982
martin.warf@nelsonmullins.com

N.C. R. App. P. 33(b) Certification: I certify that all of

the attorneys listed below have authorized me to list
their names on this document as if they had personally
signed it.

Noah H. Huffstetler, III

N.C. State Bar No. 7170
noah.huffstetler@nelsonmullins.com

Matthew A. Abee
N.C. State Bar No. 46949
matt.abee@nelsonmullins.com

GlenLake One, Suite 200

4140 Parklake Avenue
Raleigh, NC 27612
Telephone: (919) 877-3800

Attorneys for Defendants Philip E. Berger, in his

official capacity as President Pro Tempore of the North
Carolina Senate and Timothy K. Moore, in his official
capacity as Speaker of the North Carolina House of
Representatives
 -62-

CERTIFICATE OF SERVICE

The undersigned hereby certifies that a true and correct copy of the foregoing
Response was served upon the persons indicated below via electronic mail, by
agreement of the parties, addressed as follows:

John R. Wester
J. Dickson Phillips, III
Adam K. Doerr
Erik R. Zimmerman
Morgan P. Abbott
Robinson Bradshaw & Hinson, P.A.
101 N. Tryon Street, Suite 1900
Charlotte, NC 28246
jwester@robinsonbradshaw.com
dphillips@robinsonbradshaw.com
adoerr@robinsonbradshaw.com
ezimmerman@robinsonbradshaw.com
mabbott@robinsonbradshaw.com

Attorneys for Plaintiff Roy A. Cooper, III

Matthew W. Sawchak
Solicitor General
Amar Majmundar
Special Deputy Attorney General
Olga Vysotskaya de Brito
Special Deputy Attorney General
N.C. Department of Justice
Post Office Box 629
Raleigh, NC 27602-0629
msawchak@ncdoj.gov
amajmundar@ncdoj.gov
ovysotskaya@ncdoj.gov

Attorneys for North Carolina Bipartisan

State Board of Elections and Ethics
Enforcement
 -63-

This the 2nd day of September 2018.

NELSON MULLINS RILEY & SCARBOROUGH LLP

By: /s/ Electronically Submitted

D. Martin Warf
N.C. State Bar No. 32982
GlenLake One, Suite 200
4140 Parklake Avenue
Raleigh, NC 27612
Telephone: (919) 877-3800

Attorneys for Defendants Philip E. Berger, in his

official capacity as President Pro Tempore of the North
Carolina Senate and Timothy K. Moore, in his official
capacity as Speaker of the North Carolina House of
Representatives