Judges grant motions for both sides in NC constitutional amendment dispute

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  • The three-judge panel overseeing a lawsuit challenging two 2018 North Carolina state constitutional amendments issued an order Monday helping both sides in the case.
  • State legislative leaders, who are defending the challenged amendments, can wait to respond to amendment critics' requests for documents or interviews.
  • Lawmakers are also required to preserve evidence in the case, even as lead defendant Tim Moore leaves office as speaker of the State House of Representatives.
  • The lawsuit titled NC NAACP v. Moore prompted the John Locke Foundation to launch the "Extreme Injustice" podcast.

The three-judge panel overseeing a legal dispute over two 2018 North Carolina state constitutional amendments granted motions Monday helping both sides in the case.

One amendment placed a photo identification requirement for voters into the state’s governing document. The other lowered the state’s cap on income tax rates from 10% to 7%.

It’s a case that prompted the John Locke Foundation to launch the “Extreme Injustice” podcast.

Monday’s two-page order covered two requests from parties on opposite sides of the dispute. First, a protective order will allow state legislative leaders to wait before responding to amendment critics’ requests for documents or interviews tied to the legal process of discovery. Second, those legislative leaders will be required to preserve evidence even as lead defendant Tim Moore leaves his office as speaker of the State House of Representatives.

The latest order arrived more than two months after the panel heard arguments on lawmakers’ motion for a ruling that would end the case. It’s called a dispositive motion.

“Any objection or response to Plaintiff’s discovery requests shall not be due until 45 days following the ruling on Defendants’ amended dispositive motion,” according to the order signed by Judges James Gregory Bell, Michael Duncan, and Cynthia Sturges.

“Defendants must preserve evidence relevant to this case, including documents stored in legislative offices, documents on state-provided computers, documents on individual drives on the General Assembly server, and e-mails in legislative and personal e-mail accounts,” the order continued.

The panel spent two hours on Oct. 24 listening to arguments for and against ending a six-yard-old legal challenge to the two state constitutional amendments.  The judges issued no decision after the hearing. The panel offered no timetable for a ruling in the case titled NC NAACP v. Moore. Bell is a Democrat based in Robeson County. Duncan of Wilkes County and Sturges of Franklin County are both Republicans.

State legislative leaders asked the judges to grant a motion that would end the case. Lawyers for the NAACP want the lawsuit to move forward to the discovery stage. That would include new interviews and gathering of evidence for future action, including a possible trial.

“The plaintiffs cannot win, as a matter of law,” said Martin Warf, representing top Republican legislative leaders. “That’s why we’ve asked for a dispositive ruling that will bring this case to a head. We can continue on with appellate review if that’s necessary.”

Warf accused the plaintiffs of relying on “fanciful scenarios” to support their case. The NAACP argues that the two amendments hurt black voters. The case is based on the idea that a General Assembly elected with racially gerrymandered maps never should have been allowed to place the amendments on the ballots for voters in 2018. Voters approved both amendments.

Plaintiffs need the opportunity to gather facts about whether “voter ID will immunize legislators from democratic accountability,” “whether voter ID will perpetuate the ongoing exclusion of voters,” and whether “there was an intent behind the constitutional amendment” to engage in racial discrimination, argued Kym Hunter of the Southern Environmental Law Center, representing the NAACP.

“The plaintiffs here need the opportunity to engage in discovery so that they can bring the information to the court,” Hunter said. “We believe we’ve got work to do.”

“I have no idea where I am on this case,” Sturges said near the end of the hearing.

She called the state Supreme Court’s 2022 decision in the case “ambiguous.” “I feel like the only people who can fix it are the Supreme Court.”

“I don’t disagree,” Warf responded. “If the only way to fix it is for the Supreme Court … then we ought to get it to them faster rather than later.”

Amendment critics filed paperwork on Sept. 20 opposing a request to resolve the case in favor of legislative leaders. The plaintiffs hope to prove that the amendments should be struck down based on guidance provided by the state Supreme Court.

“In August 2022, the North Carolina Supreme Court remanded this case with clear instructions: allow additional factual development and conduct an evidentiary hearing to determine if the tax-cap and photo voter-ID amendments met any one of three factors established by the Court,” according to the plaintiffs’ court filing. “Disregarding this clear and unambiguous order, Defendants, stunningly, seek to erase not only the Supreme Court’s mandate but everything that has occurred in this case over the past six-and-a-half years, by asking this Court to rule in their favor based only on the pleadings.”

“Requesting a judgment on the pleadings at this late juncture appears, from Plaintiff’s research, to be unprecedented in North Carolina’s legal history,” the court filing continued.

“This Court should swiftly deny Defendants’ ill-timed and improper motion,” the plaintiffs argued.

In an Aug. 19 memorandum, lawyers for top lawmakers explained why they believe the three-judge Superior Court panel should end the case.

“This matter is on remand to determine whether two amendments proposed by the 2018 North Carolina General Assembly and adopted overwhelmingly by the people of North Carolina should be erased from the Constitution,” lawmakers’ lawyers wrote. “In order for the Court to take such an extraordinary step, Plaintiff must prove … that the amendments have ‘a substantial risk’ of (1) immunizing legislators from democratic accountability; (2) perpetuating the continued exclusion of a category of voters from the democratic process; or (3) constituting intentional racial discrimination.”

“Both amendments at issue here must be left in place because neither amendment meets these factors,” lawmakers’ lawyers argued. “This three-factor equitable test is not adjudicated in a vacuum. Rather, to prevail, Plaintiff must show ‘that there are no circumstances under which the[se] statute[s] might be constitutional.’”

“Newer precedent from the North Carolina Supreme Court regarding photographic identification to vote bears on this Court’s analysis, as does the traditional principles of constitutional review,” the memo added. “It is for these legal reasons that Defendants submit that Plaintiffs claim to invalidate the tax cap amendment … and the voter ID amendment … presently fails as a matter of law.”

Lawmakers initially filed paperwork in July seeking a final ruling from the three-judge panel. That panel issued an order in April rejecting plaintiffs’ request to transfer the case back to a single Wake County judge.

The state Supreme Court returned the case to the trial-court level in August 2022. In a party-line 4-3 vote, the court’s then-Democratic majority ruled that a trial judge could toss out the amendments under certain circumstances.

State Supreme Court Democrats agreed that amendments placed on the election ballot by a racially gerrymandered General Assembly could be deemed invalid, regardless of voters’ response to those amendments.

“Plaintiff cannot meet the new test espoused by the North Carolina Supreme Court in this case under any set of circumstances and Defendants are entitled to judgment as a matter of law in this facial challenge” to the two amendments, lawmakers’ lawyers wrote in July.

The current three-judge panel took over the case after an August 2023 transfer order from fellow Superior Court Judge Graham Shirley.

Plaintiffs led by the North Carolina State Conference of the NAACP labeled the Republican-led General Assembly a “usurper.”  High court Democrats endorsed much of the plaintiffs’ argument but left the final decision about the amendments’ fate in the hands of the Wake Superior Court.

Eight months later, after the state Supreme Court had shifted to a 5-2 Republican majority, the new court upheld the state’s voter ID law. Lawmakers had approved the law in 2018, just weeks after voters endorsed the ID constitutional amendment.

That April 2023 state Supreme Court decision prompted the North Carolina State Board of Elections to implement the voter ID requirement. Elections officials first requested ID from voters during 2023 municipal elections. The ID requirement remains in place for voters today.

Wake County Superior Court Judge Bryan Collins rejected both constitutional amendments in February 2019. The NC Court of Appeals later reversed Collins’ ruling. The 4-3 Democrat-led Supreme Court’s August 2022 decision reversed the Appeals Court’s decision.

“The issue is whether legislators elected from unconstitutionally racially gerrymandered districts possess unreviewable authority to initiate the process of changing the North Carolina Constitution, including in ways that would allow those same legislators to entrench their own power, insulate themselves from political accountability, or discriminate against the same racial group who were excluded from the democratic process by the unconstitutionally racially gerrymandered districts,” wrote Justice Anita Earls for the then-Democratic majority.

“We conclude that article I, sections 2 and 3 of the North Carolina Constitution impose limits on these legislators’ authority to initiate the process of amending the constitution under these circumstances,” Earls added. “Nonetheless, we also conclude that the trial court’s order in this case invalidating the two challenged amendments swept too broadly.”

Republican justices objected. “[T]he majority nullifies the will of the people and precludes governance by the majority,” according to dissenters.

“At issue today is not what our constitution says. The people of North Carolina settled that question when they amended the constitution to include the Voter ID and Tax Cap Amendments,” Justice Phil Berger Jr. wrote in dissent. “These amendments were placed on the November 2018 ballot by the constitutionally required three-fifths majority in the legislature. On November 6, 2018, the citizens of North Carolina voted overwhelmingly to approve the North Carolina Voter ID Amendment and the North Carolina Income Tax Cap Amendment. More than 2,000,000 people, or 55.49% of voters, voted in favor of Voter ID, while the Tax Cap Amendment was approved by more than 57% of North Carolina’s voters.”

“Instead, the majority engages in an inquiry that is judicially forbidden — what should our constitution say? This question is designated solely to the people and the legislature,” Berger added. “The majority concedes that constitutional procedures were followed, yet they invalidate more than 4.1 million votes and disenfranchise more than 55% of North Carolina’s electorate.”

The John Locke Foundation’s then-CEO, Amy Cooke, also criticized the 4-3 decision in August 2022.

“The ‘Usurper Four’ Democrat majority has gone scorched earth on the state constitution and the will of millions of North Carolina voters,” Cooke said in a prepared statement. “This decision, crafted by notorious progressive idealogue Anita Earls, is designed to appease the Democrats’ far-left activist base — a small but well-funded base that openly rejects the very popular voter ID law and taxpayer protections. These four justices — Anita Earls, Sam Ervin, Michael Morgan, and Robin Hudson — are guilty of voter suppression.” 

Hudson retired from the court when her term expired in 2022. Voters ousted Ervin in the 2022 election. Morgan retired from the court in 2023 and ran for the Democratic nomination for governor. He lost in the March primary. Only Earls remains on the state Supreme Court from the “Usurper Four.”

NC NAACP v. Moore was the subject of season one of the John Locke Foundation’s “Extreme Injustice” podcast. The case is documented at ExtremeInjustice.com. The podcast focused on efforts to disqualify Berger and fellow Republican Justice Tamara Barringer from taking part in the case. The state Supreme Court ultimately decided to allow Berger and Barringer to decide themselves whether to take part in the case.

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