Four state justices invent a way to undo constitutional changes.
North Carolina’s activist Supreme Court seems to think it is the law itself. One of its dubious partisan gerrymandering decisions is up for review this fall by the U.S. Supreme Court, but this month the state justices outdid themselves by ruling 4-3 that illegal gerrymandering of voting districts could also be a legal excuse to undo two constitutional provisions that voters vigorously approved.
When North Carolina redrew state legislative districts after the 2010 census, it was still under the “preclearance” regime created by the Voting Rights Act of 1965, meaning the new map was reviewed and approved by the U.S. Department of Justice. But in 2015, a group of residents sued, and a federal court ultimately concluded that 28 majority-black districts for the state House and Senate were unconstitutionally gerrymandered on racial grounds.
For a time, however, those districts remained in place, during which time the Legislature proposed two constitutional amendments, one imposing voter ID and the other limiting the state income tax to 7%. Both were ratified by voters in the 2018 election and neither outcome was close. The voter ID passed by 11 points and the tax cap by 15 points. Four years later, the state Supreme Court in NAACP v. Moore is effectively saying that the amendments could now be dismissed as the fruit of a poisoned tree.
In the majority opinion’s account, written by Justice Anita Earls, the NAACP argued that as soon as the judiciary invalidated the gerrymander, those 28 legislators “became usurpers.” The majority doesn’t go that far, citing the legal doctrine of “de facto officers,” whose work remains valid despite some defect in their elevation. The point is to prevent a ruling overruling a gerrymander from wiping out a state budget or a quorum. “It would be intolerable,” says the majority, “to hold that the people of North Carolina were left without standing to exercise legislative authority.”
So far so reasonable. But then the court invents a heightened standard for North Carolina constitutional amendments, saying that de facto officials might lack the power to propose them in certain circumstances. To that end, the majority devises a staggering multifactor test, starting with whether legislators in gerrymandered districts were “sufficient in number to be decisive.”
If so, the justices must ask whether the proposed amendment would “immunize legislators from democratic accountability,” “perpetuate the current exclusion of a category of voters from the political process,” or “intentionally discriminate against a particular category of citizens who were also discriminated against in the political process leading to the election of legislators.” From what source of legal invention did that come?
The majority remands the case for further review but notes that the trial court already made related findings of fact. NAACP members, the court said, “will effectively be denied the right to vote” by voter ID. The tax cap “sets a fixed and artificial limit on income taxes,” which “prohibits the state from setting graduated tax rates” and “tends to favor white households and disadvantaged people of color.” These are progressive MSNBC policy arguments, not legal judgments.
Judge Philip Berger Jr.’s dissent is unrelenting. He says the state constitution clearly allows the Legislature to propose amendments, period, and the majority “flagrantly violates the separation of powers.” The new multifactor test will force judges to “analyze the content of each legislative action and weigh the policy implications.”
And where else might the same logic extend? “A misallocated legislature ratified the Twentieth Amendment on Jan. 5, 1933,” he says. “Under the majority’s reasoning here, is this ratification vote voidable?”
The dissent ends with a question to a higher legal power. “When,” asks Justice Berger, “does judicial activism undermine our republican form of government guaranteed in Article IV, Section 4 of the U.S. Constitution such that the people are no longer the source of power?”
An interesting query. By the way the four judicial philosopher kings of North Carolina, U.S.A. The Supreme Court might want to find an occasion soon to answer it.