Can a racially gerrymandered legislature amend the N.C. constitution?
The North Carolina NAACP is challenging two 2018 amendments to the state constitution that imposed a voter ID mandate and lowered the state's income tax cap. The amendments were passed by the legislature after the U.S. Supreme Court ruled that it was the product of unconstitutional, racially gerrymandered election districts. The state Court of Appeals will hear arguments in the case this fall.
In February, Wake County Superior Court Judge Bryan Collins agreed with the plaintiffs and ruled that the legislature "lost its claim to popular sovereignty" after the U.S. Supreme Court decision in 2017. Collins' ruling was limited to the two challenged amendments, which were approved by a very narrow margin.
Since then, new evidence has emerged about the 2017 redistricting process from hard drives obtained from the daughter of deceased Republican redistricting expert Thomas Hofeller.
The federal court hearing the racial gerrymandering case was considering an order to hold a special election with fairer districts, and the data on the hard drives suggest that legislators lied to the court to buy themselves time under the gerrymandered maps. Lawmakers told the court that they couldn't redraw districts in time for a special election. But Hofeller's files showed that, at that point, he had completed almost all of the maps. Map-drawers also weren't supposed to use racial data, but Hofeller did.
The federal court reluctantly concluded that a special election wasn't possible. This meant that the Republicans' gerrymandered supermajority stayed in place until after the 2018 election, and legislators used that time to pass six amendments to the state constitution. Voters approved four of them, two of which are being challenged by the NAACP.
Usurpers in power
The North Carolina Court of Appeals, which has a narrow Democratic majority, recently received briefs urging it to uphold Collins' ruling from a group of law professors, the state legislature's Black Caucus, Democratic Gov. Roy Cooper, and Democracy NC, a voting rights advocacy group.
Republican legislators want the court to overturn Collins' ruling. They argue the courts have no authority to strike down the amendments, because the issue in the case is a "political question" that courts can't answer. For example, the U.S. Supreme Court recently dismissed a partisan gerrymandering case out of North Carolina, saying, "Federal judges have no license to reallocate political power between the two major political parties, with no plausible grant of authority in the Constitution, and no legal standards to limit and direct their decisions."
However, courts have rejected arguments that racial gerrymandering cases are political questions. In its brief, the Black Caucus said that the legislators' argument "evokes a bygone era when courts deployed political-question-type reasoning to reject challenges to state constitutional amendments that disenfranchised African Americans in the Jim Crow South."
The NAACP and its allies have pointed out that voter ID laws are more likely to keep black voters from casting a ballot. A voting rights group has filed a separate lawsuit in state court challenging the law the legislature passed to implement the voter ID requirement. The bill was hastily passed last December, in the final days of the Republicans' gerrymandered supermajority.
The brief from the law professors, who are represented by Bob Orr, a former member of the state Supreme Court who is a Republican, discussed the sources of democratic legitimacy and separation of powers in the state constitution. The professors argue that the illegally gerrymandered legislature's effort "to propose substantial constitutional modifications — just before it lost its supermajority status — violates both the core intent of, and the careful procedural safeguards provided within, the North Carolina Constitution to preserve the sovereignty of the people."
Cooper's brief outlined the legislature's history of power grabs in recent years, including repeated attempts to exert control over the courts and the executive branch. Several of these attempts were halted by state courts, which the governor said "are again asked to protect against efforts to entrench the policy preferences of a temporary governing majority." And the brief from Democracy NC acknowledged that "the Democratic Party also sought to manipulate the political process to frustrate the will of North Carolina voters when it had the chance."
The Court of Appeals' decision is likely to be appealed to the North Carolina Supreme Court. That court currently has a 6-1 Democratic majority despite the state legislature's repeated attempts to tilt Supreme Court elections in favor of Republican candidates.