Lawmakers push to end ‘Extreme Injustice’ case

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  • State legislative leaders are seeking to end a nearly six-year-old legal battle over two state constitutional amendments voters approved in 2018.
  • One amendment mandates photo identification for voters. The other lowered North Carolina's cap on income tax rates from 10% to 7%.
  • Top lawmakers urge a three-judge panel to grant their motion for summary judgment in the case. They argue in a court filing this week that plaintiffs cannot prove their case against the targeted amendments.

Top North Carolina legislative leaders seek to end a nearly six-year-old legal battle over state constitutional amendments. It’s the case that prompted the John Locke Foundation to put together the “Extreme Injustice” podcast.

Legislative lawyers filed paperwork Tuesday seeking summary judgment in the case North Carolina State Conference of the NAACP v. Moore. The case challenges two state constitutional amendments voters approved in 2018. One mandated photo identification for voters. The other lowered the state’s income tax cap.

The case sits now with a 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 this week’s court filing.

“[T]here is no genuine issue of material fact and as a matter of law (1) there is not a substantial risk that the Voter ID and Tax Cap Amendments would immunize legislators elected due to unconstitutional gerrymanders from democratic accountability; (2) there is not a substantial risk that the Voter ID and Tax Cap Amendments would perpetuate the continued exclusion of a category of voters from the democratic process; and (3) there is not a substantial risk that the Voter ID and Tax Cap Amendments would constitute intentional discrimination against the same category of voters discriminated against in Covington v. North Carolina,” the court filing continued.

In the 2017 Covington case, the US Supreme Court threw out state legislative election maps because of racial gerrymandering. Lawmakers elected under the challenged maps placed the voter ID and tax cap amendments on the 2018 election ballot.

In a three-sentence order issued on April 12, the case’s current three-judge Superior Court panel agreed to keep the case.

The panel spent nearly 90 minutes on March 8 listening in a video hearing to arguments for and against transferring the dispute back to a single judge.

The case does not affect North Carolina’s current voter ID requirement. A separate federal lawsuit could affect the future of voter ID.

Superior Court Judges Gregory Bell, Michael Duncan, and Cynthia Sturges oversee the amendments case. The panel took over after an August 2023 transfer order from fellow Superior Court Judge Graham Shirley. Bell is a Democrat based in Robeson County. Duncan of Wilkes County and Sturges of Franklin County are both Republicans.

Plaintiffs challenging the two amendments argued during the March hearing that Shirley never should have transferred the case.

State law requires three-judge panels to hear lawsuits that challenge the constitutionality of a state law “on its face,” meaning plaintiffs argue there is no circumstance in which the law can be valid.

“In 2018, a three-judge panel determined that the racial gerrymandering claims listed in the plaintiff’s complaint did not constitute a facial challenge, but were rather a collateral attack on the General Assembly,” argued Kym Hunter of the Southern Environmental Law Center, representing plaintiffs from the NAACP. “And that decision is law of the case.”

“Most importantly, the Supreme Court, in its ruling in this case, expressly recognized the jurisdiction of the lower court,” Hunter added.

Lawyer Martin Warf, representing state legislative leaders, argued that Shirley had access in 2023 to four precedent cases dealing with facial constitutional challenges that were not available to the 2018 panel.

“Their complaint … seeks to invalidate wholly two amendments as to everyone — not just to the NAACP, not just to those who voted for it or against it — as to everyone,” Warf said. “Under the test that we have today, this demonstrates the plaintiff is seeking a remedy beyond themselves. They’re saying under no set of circumstances could this amendment be allowed to be constitutional. That is a facial challenge.”

The state Supreme Court also changed the case by producing a new test to determine whether a targeted amendment could be upheld as constitutional, Warf argued. “That is a question that is absolutely a changed circumstance,” he said. “Judge Shirley evaluated that on remand.”

The NAACP filed a motion in January to shift the case away from a three-judge panel. The court filing reached Wake County Superior Court more than five months after Shirley issued his transfer order.

Defendants had pushed for the three-judge panel after a 2022 state Supreme Court ruling. The court’s then-Democratic majority ruled that the amendments could be tossed out under certain circumstances.

A previous three-judge panel already had ruled against taking the case.

“Rather than adopt Defendants’ reasoning that the case had somehow been ‘transformed’ by the Supreme Court, Judge Shirley directly contravened the prior determinations by the three-judge panel, the Court of Appeals, and the Supreme Court, and concluded that NC NAACP’s claims had always been facial challenges and thus subject to N.C. Gen. Stat. § 1-267.1,” NAACP lawyers wrote. “As a result, Judge Shirley concluded he lacked subject-matter jurisdiction and ordered the case to be transferred to another three-judge panel.”

The cited state law determines when court cases should head to a three-judge panel. Those panels are designated to hear any “facial” constitutional challenge. That term applies to lawsuits arguing that a state law violates the state constitution under all circumstances.

“To the extent Judge Shirley’s order relied on reasoning that this case belonged before a three-judge panel from the outset, he did not have the authority to second-guess the prior three-judge panel’s determination,” NAACP lawyers argued. “That panel plainly held that NC NAACP’s as-applied racial-gerrymander claims were ‘not within the [panel’s] jurisdiction.’”

“NC NAACP is arguing that, as a procedural matter, a specific racially gerrymandered legislature lacked the authority to propose these amendments under a specific set of circumstances,” according to the court filing. “As the Supreme Court recognized, this will be a fact-intensive inquiry requiring an evidentiary hearing. And as counsel for Defendants conceded in response to questioning from this panel, such an inquiry is generally incompatible with a facial challenge.”

Shirley issued his transfer order on Aug. 2, 2023. Republican state legislative leaders had requested the shift from a single judge to a three-judge panel.

Shirley agreed with legislative leaders that state law required the transfer.

“The Supreme Court’s analysis clearly reveals that Plaintiffs’ claims, which are collateral attacks on the Amendments themselves, are also direct attacks on the Sessions Laws and thus constitute facial challenges to acts of the General Assembly which initiated the amendment process at issue,” Shirley wrote. “As such, N.C. Gen. Stat. § 1-267.1 vests exclusive subject matter jurisdiction in a three-judge panel of the Superior Court of Wake County, as organized pursuant to N.C. Gen. Stat. §1-267.1(b2).”

The case returned to Wake County Superior Court after a 4-3 ruling in August 2022 from the NC Supreme Court. In a party-line vote, the court’s then-Democratic majority determined that the amendments could be tossed out because a “gerrymandered” legislature had placed them on the ballot.

Plaintiffs led by the North Carolina State Conference of the NAACP labeled the Republican-led General Assembly a “usurper.” Shirley’s order referred to the plaintiffs’ argument as the “Legislative Usurper Claim.”

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 state Supreme Court decision prompted the North Carolina State Board of Elections to prepare for implementing the voter ID requirement. Elections officials first requested ID from voters during 2023 municipal elections.

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.

The voter ID amendment has generated more interest than the tax cap amendment. North Carolina’s income tax rate falls far below either the old 10% cap or the 7% cap tied to the amendment.

The amendments case, titled NC NAACP v. Moore, was the subject of season one of the John Locke Foundation’s “Extreme Injustice” podcast. The case is documented at The podcast focused on efforts to disqualify Berger and fellow Republican Justice Tamara Barringer from taking part in the case.