State Supreme Court dismisses request to compel action in amendments case

N.C. Supreme Court Justice Phil Berger Jr. administers an oath of office. (Screen shot from

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  • The N.C. Supreme Court dismissed as "moot" a request to speed up proceedings in a lawsuit challenging two state constitutional amendments.
  • Plaintiffs argued that three N.C. Court of Appeals judges, all Republicans, delayed returning the case to a trial judge for further action.

The N.C. Supreme Court has rejected a request to speed up the proceedings in a case involving challenged state constitutional amendments. The amendments would enshrine a voter identification requirement in the constitution and lower an existing cap on income tax rates.

Lawyers representing the N.C. NAACP filed paperwork Tuesday asking for a rare “writ of mandamus.” That order would force the state Court of Appeals to return the case to a trial judge.

A Supreme Court order issued Thursday dismissed the request as “moot.” Republican Justice Phil Berger Jr. signed the order.

NAACP lawyers accused three Appeals Court judges, all Republicans, of holding up the case’s transfer to a Wake County trial court. The trial judge who initially heard the case and ruled in the NAACP’s favor is a Democrat.

Democrats hold a 4-3 advantage on the state Supreme Court now, but voters elected two new Republican justices this month. Both Republicans will replace Democrats. The election will shift the court’s partisan split to 5-2 in Republicans’ favor in January.

At stake is the future of two state constitutional amendments approved by voters in 2018. One, approved with 55% of the vote, would enshrine a photo identification requirement for voters in the state constitution. The second, approved with 57% of the vote, would lower North Carolina’s existing constitutional cap on income tax rates from 10% to 7%.

In the case N.C. NAACP v. Moore, plaintiffs argued that courts should throw out both amendments. They argued that a gerrymandered state legislature had no authority to place the amendments on the 2018 ballot.

With a 4-3 party-line ruling in August, state Supreme Court Democrats agreed that the amendments could be thrown out. The Supreme Court ordered the case sent back to the trial judge for further action.

Plaintiffs argued this week that the case had taken too long to return to Superior Court. They sought a Supreme Court order forcing Chief Appeals Court Judge Donna Stroud and fellow Judges Jeff Carpenter and Chris Dillon to act.

“This Court should compel the Court of Appeals to comply with this Court’s instruction to remand this matter to the trial court,” wrote attorney Kimberley Hunter of the Southern Environmental Law Center, who represents the N.C. NAACP. “In its decision, this Court held that constitutional amendments proposed by a racially gerrymandered legislature must be vacated under certain circumstances.”

“To determine whether those circumstances required the invalidation of the 2018 photo voter-ID and tax-cap amendments, this Court ordered the Court of Appeals to remand to the trial court for an evidentiary hearing,” Hunter added. “For reasons unknown, the Court of Appeals has failed to comply with this mandatory, ministerial duty — despite having ample opportunity to do so.”

“The Court of Appeals’ failure to follow standard judicial procedure leaves this case — and by extension, two amendments to the North Carolina Constitution — in legal limbo,” Hunter wrote. “That is an untenable situation. The Constitution is ‘the framework for [our] democracy.’ What is and is not contained in that framework is a matter of the utmost importance that must be adjudicated with due speed.”

The state Supreme Court issued its ruling in N.C. NAACP v. Moore on Aug. 19, and that ruling became official on Sept. 8. The case then returned to the Appeals Court. The targeted three-judge panel “convened several weeks ago but has not issued the mandate to the trial court,” Hunter wrote.

Carolina Journal has covered N.C. NAACP v. Moore extensively. The case served as the basis for the first season of the “Extreme Injustice” podcast, available at In this case, Democratic Supreme Court justices considered the possibility of blocking two Republican colleagues from taking part in deliberations and a final decision.

The court ultimately rejected that option. All seven justices took part in N.C. NAACP v. Moore, which produced a 4-3 party-line split ruling.