A blow to 'usurper' elected officials in North Carolina
A North Carolina judge recently threw out two state constitutional amendments — a voter ID requirement and a lower income tax cap — that voters approved in November. The judge ruled that state legislators lacked the authority to put the amendments on the ballot because most of them had been elected in districts that the U.S. Supreme Court struck down in 2017 for discriminating against black voters.
The N.C. Constitution requires three-fifths of the legislature to approve a constitutional amendment before submitting it to voters. When legislators narrowly approved the voter ID and tax cap amendments, more than two-thirds of them had been elected in districts that were racially gerrymandered. Though North Carolina is only 63 percent white, all of the legislators in the Republican majority are white.
In his ruling, Wake County Superior Court Judge Bryan Collins said the legislature "lost its claim to popular sovereignty" when it was finally determined to be the result of racially discriminatory election districts, and the amendments were thus approved by a legislature "that did not represent the people of North Carolina." Collins noted that the votes to approve the amendments cleared the three-fifths threshold by only a few votes.
Republicans condemned the ruling as "judicial activism," while the Charlotte Observer said it was a "real-life example that overreaching judges want to bend the constitution for progressive purposes." But other editorials commended the ruling for protecting, not undermining, the democratic process, noting that Collins' decision recognized that the N.C. Constitution gives the people, not the legislature, the "inherent, sole, and exclusive right" to amend it.
The ruling came in a lawsuit brought last year by the N.C. NAACP and Clean Air Carolina that cited precedents in which North Carolina courts had declared local elected officials to be "usurpers" who were illegitimately elected or appointed. In some of these cases, state courts declared them "de facto" officials whose decisions remain valid if they were made before the election or appointment was declared invalid. Though the lawsuit originally targeted four amendments, the claims against the other two were dismissed after voters rejected them in November.
When the lawsuit was filed, the head of the N.C. Republican Party, Dallas Woodhouse, threatened to impeach the state Supreme Court if it struck down the amendments. At the time, the gerrymandered GOP supermajority had enough votes to impeach the justices, but Republicans lost their supermajority in the recent election after legislative districts were redrawn to make them fairer for black voters.
During the supermajority's lame duck session in December, legislators passed a law implementing the voter ID amendment and then overrode the governor's veto of it. Back in 2013, the legislature passed a strict voter ID law, and federal courts struck it down because those drafting the law had targeted black voters "with almost surgical precision." Collins noted that the new voter ID requirement "would have an irreparable impact on the right to vote of African Americans."
The N.C. Court of Appeals has put Collins' ruling on hold as it hears an appeal of his decision. If appellate courts uphold the ruling, the new voter ID law would be more vulnerable to a legal challenge under the state constitution. The Southern Coalition for Social Justice, which has already sued over the law for violating state constitutional rights including the rights to vote and to equal protection, said it would amend its suit to include a claim that the law violates the state constitution's mandate that every qualified voter "shall be entitled to vote at any election." Both Collins' ruling and SCSJ's lawsuit could be headed to the overwhelmingly Democrat-controlled N.C. Supreme Court, whose rulings under the state constitution cannot be overruled by the U.S. Supreme Court.
Though the voter ID law states that it takes effect immediately, legislators are considering a delay until after this year's special elections. North Carolina voters will elect two new members of Congress: a replacement for the late Rep. Walter Jones (R) in the 3rd Congressional District, and a re-do of last year's election in the 9th District, the results of which were thrown out by the state elections board due to alleged fraud involving political operative McCrae Dowless, who has been arrested on multiple counts related to illegal ballot handling and conspiracy in both the 2018 and 2016 elections.
Both districts are in Eastern North Carolina, which has a substantial black population and which civil rights leader Rev. William Barber — a native son — has described as "a place where it often feels like the civil rights movement never happened."
That region of the state is already contending with questions of political usurpation, which has a long history dating back to Reconstruction. In the past decade, two Eastern North Carolina counties elected their first black sheriffs — both of whom were ousted by white challengers aided by Dowless under questionable circumstances.
In Columbus County, incumbent Democratic Sheriff Lewis Hatcher appeared to have lost last November's election by 34 votes to Republican S. Jody Greene. In response, Hatcher filed a lawsuit arguing that Greene was illegally sworn in before the elections board certified the results and thus was a usurper. Though the lawsuit has been settled out of court, the state elections board will consider the matter on March 25.
Dowless also helped Bladen County Sheriff Jim McVicker, a Republican, defeat Democrat Prentis Benston, that county's first black sheriff, in a racially-charged 2014 race that the state elections board investigated but ultimately declined to refer to prosecutors. State election authorities are now investigating McVicker's 2018 re-election campaign as part of their broader election fraud probe.
Billy is a contributing writer with Facing South who specializes in judicial selection, voting rights, and the courts in North Carolina.