On Monday, North Carolina’s Supreme Court will hear yet another case about limits that the state Constitution places on the legislature. The justices will consider whether an illegally gerrymandered legislature can change the state Constitution.
Though the legal question is specific, it drives to the heart of partisan power struggles in North Carolina and how the state’s democracy has become caught in the crossfire.
“An illegally constituted General Assembly does not represent the people of North Carolina and is therefore not empowered to pass legislation that would amend the state’s Constitution,” Superior Court Judge Bryan Collins Jr., wrote in his opinion favoring the plaintiffs.
But in a split decision, the Court of Appeals overturned, setting the case up for appeal to the Supreme Court.
A victory for the plaintiff, the state chapter of the NAACP, could strike down two of the constitutional amendments that the Republican supermajority legislature placed on the ballot for state voters to approve in 2018.
The amendments capped income tax at 7% and required the state to implement a photo voter ID law. Due to other legal challenges, photo ID is still not required to vote, but this case could erase the amendment for good.
Lawyers for state Senate Pro Tempore Phil Berger and House Speaker Tim Moore, the defendants in the case, say a ruling for the plaintiffs would amount to judicial overreach, a claim Republicans have used in and out of state courts for years in protesting limits on legislative authority.
A ruling for the plaintiffs would open the door to overturning every single law that an illegally gerrymandered legislature passed in North Carolina, a phenomenon going back decades and decades, according to the defendants’ legal brief filed with the state Supreme Court.
Lawyers for the NAACP disagree and think there is a line in the sand between regular laws, which lawmakers change relatively easily, and constitutional amendments, which a supermajority vote in both legislative chambers can put on the ballot, to await approval from the majority of that year’s voters.
Neither Berger’s nor Moore’s offices responded with comments for this article.
A Supreme Court ruling allowing the amendments to stand would be “devastating” and “a signal that there is no act that is beyond the limits for a General Assembly that has used racial gerrymandering to obtain a supermajority to take in the state,” said Caitlin Swain, a lawyer representing the NAACP and the co-director of Forward Justice.
Constitutional amendments to lock in partisan interest
Legislative Republicans used the constitutional amendments in 2018 to secure long-standing partisan economic and election administration interests. By putting the constitutional changes in front of voters, who passed four of six amendments, Republicans made it much more difficult for subsequent legislatures to claw back those partisan gains.
To do so would either require a new consensus among a super-majority of legislators, which is highly unlikely in a bitterly partisan and evenly divided state such as North Carolina, or a new constitutional convention.
Turning to the courts to answer this novel legal question, of whether a gerrymandered legislature can alter the state Constitution, may have been the easiest path forward for opponents of the amendments.
The NAACP challenged two of the amendments because it had standing to do so, according to Swain and Kym Hunter, another lawyer representing the NAACP and senior attorney for the Southern Environmental Law Center.
Should the NAACP win in the Supreme Court, other groups would have an easier legal path to overturn the remaining two amendments, according to Hunter.
Racially gerrymandered legislature targets Black voters
In 2011, Republicans won control of the state House and Senate simultaneously for the first time in close to 100 years. With that newfound power, Republicans drew new political maps, which is required after each decennial census.
The maps violated the 14th Amendment by drawing political maps that diluted the voting power of Black North Carolinians and increased the voting power of whites, who typically vote Republican, according to federal court rulings, which the U.S. Supreme Court affirmed on June 5, 2017.
Federal justices found that 28 were unconstitutional, but to make the maps fair again, the legislature had to redraw 117 districts across the House and Senate.
The courts ruled the state had to redraw political maps for the 2018 elections. In June 2018, in the final two days of the legislative session, the legislature passed the laws putting the income cap, voter ID and other amendments on the November ballot.
In December, after the general election showing Republicans would lose their illegally racially gerrymandered supermajority, the Republican legislature passed the bill that would put the voter ID amendment into law over Gov. Roy Cooper’s veto.
Today, photo ID is still not required in North Carolina due to a state court injunction blocking the law for being discriminatory against Black voters. That case is also making its way to the state Supreme Court. A similar voter ID law was struck down by the federal court of appeals in 2016 for attempting to “target African-Americans with almost surgical precision.”
Should the voter ID constitutional amendment be removed, then a major legal argument that the state should have a voter ID law is also removed, Hunter said.
“The legislature then was using its illegally gotten power, acquired through racial discrimination, to enshrine another barrier to voting, one that had been found to be discriminatory in intent just a couple of years before, and further entrench itself,” according to the NAACP legal brief to the state Supreme Court.
The Republican response brief does not argue whether the legislature was acting under an illegal racial gerrymander and does not address the racial implications of the voter ID law. Instead, it says that even illegally gerrymandered legislatures have the power to act.
Though no legal precedent exists in North Carolina, Republican defendants pointed to relevant history in federal and other state courts. Federal courts found that laws passed by Georgia’s legislature after it succeeded from the United States and into the Confederacy, for example, were upheld as legitimate laws when it rejoined the country.
Fight over recusals
All seven Supreme Court justices will hear the case, which was not a given.
North Carolina’s rules allow justices to decide for themselves whether they should recuse from a case for conflict of interest. Before the case was originally scheduled to be heard in Aug. 2021, the NAACP plaintiffs asked for two Republican justices, Phil Berger Jr. and Tamara Barringer, to be recused.
Berger’s father is the leader of the state Senate and oversaw the passage of the laws putting the amendments on the ballot, and Barringer was a legislator from one of the districts that had to be redrawn who voted for the laws to pass.
Republican defendants, including Berger Jr.’s father, asked for Justice Anita Earls to be recused from the case because she worked as a lawyer representing the NAACP in different cases before voters elected her as a judge. Since it was filed “in the alternative” should the other justices be recused, this request is moot.
These requests set off a months-long legal debate over the court’s authority to monitor its own justices.
Ultimately, the court decided that the current rules would stand, though it required the justices to explain themselves or to voluntarily turn the decision over to the other members of the court. Each decided they could sit on the case without conflict.
Berger said voters knew who he was and who his father was when they elected him, and that his father was being sued in his official capacity, not as an individual. Barringer said former legislators are often elected to judicial office and have a history of not recusing themselves when questions of legislation they participated in reviewing came before the courts.