In a remarkable decision, the North Carolina Supreme Court ruled on Friday that because the state legislature was unconstitutionally gerrymandered, Republican lawmakers may have lacked the power to approve amendments to the state constitution and put them before voters.
The decision, which the court's 4-3 Democratic majority issued along party lines, stopped short of granting the plaintiffs' requests to strike down two amendments passed by Republicans in 2018—one to require photo voter ID and another to cap any state income tax at 7%. The justices instead returned the case to the trial court for further findings, though its framing of the dispute indicates that there's a strong likelihood the state courts will ultimately invalidate the amendments.
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At the heart of this case is the fact that a large number of legislative districts had already been struck down in 2017 after federal courts found they illegally discriminated against Black voters. However, Republicans who had been elected under the unconstitutional maps used their supermajorities to place their amendments on the ballot the following year, when they were ultimately approved by voters.
The plaintiffs, who are backed by the NAACP, made the unusual—but not unprecedented—argument that the GOP's widespread illegal gerrymandering rendered the legislature a "usurper" that legally lacked the power to amend North Carolina's foundational governing document because it had "lost its claim to popular sovereignty." A lower court agreed in 2019 by striking down the two amendments, but a 2-1 Republican majority on the state Court of Appeals reversed that ruling along party lines in 2020, leading the plaintiffs to appeal to the state Supreme Court.
The majority was sympathetic to the plaintiffs' claims, ruling that the state constitution "impose[d] limits" on an improperly constituted legislature to initiate the constitutional amendment process. However, it sent the case back to the trial court, ordering the judge to determine whether the GOP owed its supermajorities to the gerrymandered maps. But in a sign of what may be to come, the high court itself noted that "the record is clear that votes of legislators from unconstitutionally gerrymandered districts could have been decisive."
The Supreme Court consequently also told the trial court to consider whether the amendments would "immunize legislators ... from democratic accountability," further the exclusion of a particular class of voters from the democratic process, or intentionally discriminate against the same type of voters who had been discriminated against by the illegal gerrymandering. Should the answer to any of these three questions be "yes," then the trial judge would be "require[d]" to strike down the amendments.
They very likely will be. The amendments themselves passed almost entirely along party lines, and Republicans only narrowly possessed the necessary three-fifths supermajorities to put them on the ballot.
Beyond that, the voter ID statute that Republicans enacted following voters' adoption of the relevant amendment has been put on hold amid two ongoing lawsuits claiming racial discrimination against Black voters. Plaintiffs have also argued that the income tax cap disproportionately harms people of color by impeding the adoption of a more progressive tax structure.
The dissent cast furious aspersions on the motives of the majority, and Republicans reacted with predictable anger. State House Speaker Tim Moore decried the ruling as a "judicial coup" and vowed to keep fighting the decision, which could mean potentially appealing to the U.S. Supreme Court.
They will also have the chance to reverse this ruling by means of the ballot box. In November, two Democratic seats on the state Supreme Court are up: Democratic Justice Sam Ervin IV faces Republican attorney Trey Allen, while Court of Appeals Judge Lucy Inman is attempting to hold onto an open Democratic seat against a fellow Court of Appeals judge, Republican Richard Dietz.
If Republicans win either seat, they would regain the court majority that they lost in 2016, paving the way for a string of reversals not only in this case but in many others—reversals that would threaten many rights, including the right to vote and the right to participate in fair elections.
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