N.C. Supreme Court rules against ‘gerrymandered’ legislature, punts on fate of voter ID and tax cap amendments

N.C. Supreme Court Associate Justice Anita Earls listens to oral arguments. Carolina Journal photo by Maya Reagan.

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  • With a 4-3 party-line vote, Democrats on the N.C. Supreme Court agreed that two voter-approved state constitutional amendments could be thrown out. They have sent the case back to a trial judge to make that decision.
  • Republican justices dissented. They say Democrat's willingness to toss out voter-approved amendments means “the majority nullifies the will of the people and precludes governance by the majority."

With a party-line 4-3 vote, Democrats on the N.C. Supreme Court have ruled that voter-approved state constitutional amendments could be tossed because they were placed on the ballot by a “gerrymandered” legislature.

The decision released Friday does not kill two constitutional amendments approved by N.C. voters in 2018. One mandates photo identification for voters. The other lowers the state’s cap on income tax rates.

Supreme Court Democrats instead sent the case back to a trial judge to make further findings before determining the amendments’ fate. The trial court ultimately could decide for a second time to block the amendments.

Republican justices objected. Though Friday’s decision did not officially kill the amendments, “the majority nullifies the will of the people and precludes governance by the majority,” according to dissenters.

“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 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.”

Based on a complaint led by the N.C. chapter of the NAACP, Wake County Superior Court Judge Bryan Collins rejected both constitutional amendments in February 2019. The N.C. Court of Appeals later reversed Collins’ ruling. Now Supreme Court Democrats are sending the case back to Collins’ trial court.

“[T]he trial court should have examined as a threshold matter whether the legislature was composed of a sufficient number of legislators elected from unconstitutionally gerrymandered districts — or from districts that were made possible by the unconstitutional gerrymander — such that the votes of those legislators could have been decisive in passing the challenged enactments,” Earls wrote. “If not, no further inquiry is necessary, and the challenged amendments must be left undisturbed.”

Yet Earls says “the record is clear” that votes from legislators in gerrymandered districts “could have been decisive.” So Collins should consider “whether there was a substantial risk that each challenged constitutional amendment would (1) immunize legislators elected due to unconstitutional racial gerrymandering from democratic accountability going forward; (2) perpetuate the continued exclusion of a category of voters from the democratic process; or (3) constitute intentional discrimination against the same category of voters discriminated against in the reapportionment process that resulted in the unconstitutionally gerrymandered districts.”

Justice Phil Berger Jr. wrote for dissenting Republicans.

“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,” Berger wrote. “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. Unwilling to accept the results of a procedurally sound election that enshrined the Voter ID and Tax Cap Amendments in our state constitution, the majority nullifies the will of the people and precludes governance by the majority. In so doing, my colleagues extend the reach of their judicial power beyond mere judicial review of actions under our constitution; instead, they have
determined that certain provisions of the constitution itself are objectionable.”

John Locke Foundation CEO Amy Cooke also criticized the decision.

“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.” 

“The people’s will was very clear in 2018 when they voted yes on election security and taxpayer protections — two constitutional amendments placed on the ballot by the elected General Assembly,” Cooke added. “The Democrat justices had it within their power to protect voters, but instead they’ve sent this case back to the trial court where their allies can subvert North Carolinians.”  

“Rather than protect voters, these four progressive justices have proven their allegiance to the Democrat Party trumps North Carolina voters and the constitution,” Cooke concluded. “They’ve deprived North Carolinians of a definitive decision. Instead they willingly leave voters and taxpayers in a state of uncertainty.”

It’s unclear when Collins will reconsider the case of the two challenged constitutional amendments.

A different lawsuit, Holmes v. Moore, has blocked voter ID from taking effect in North Carolina. That suit also sits with the N.C. Supreme Court. Justices have not heard arguments yet in that case.

Meanwhile, the Republican-led General Assembly has shown no interest in raising income tax rates. The state’s flat income tax rate falls this year from 5.25% to 4.99%. The rate is scheduled to continue falling until it reaches 3.99% in 2027.

That means there is little chance in the near future of rates reaching the 7% cap set by the 2018 state constitutional amendment, much less the 10% cap in place prior to voters approving the amendment.

The amendments case, titled N.C. 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.