Judges on the North Carolina Court of Appeals this week upheld two constitutional amendments passed by a state legislature that had been elected in racially gerrymandered districts. But the North Carolina NAACP, which brought the lawsuit challenging the amendments, is appealing to the state Supreme Court.
Lawmakers placed the amendments — a voter ID mandate and a lower income tax cap — on the ballot in 2018. But the move came after federal courts ruled that some of the legislators' districts were unconstitutional because they discriminated against Black voters.
Court of Appeals Judge Chris Dillon, a Republican who's up for reelection this year, wrote the decision for a three-judge panel. His opinion said that courts had never assumed "the power to deprive the General Assembly of authority … granted that body by our state constitution," and that includes the power to place amendments on the ballot.
The dissent from Judge Reuben Young, a Democrat who's also facing reelection, argued: "Only a legislature formed by the will of the people, representing our population in truth and fact, may … amend or alter the central document of this state's laws." Young warned that "if an unlawfully-formed legislature could indeed amend the Constitution, it could do so to grant itself the veneer of legitimacy." Young is one of only two Black judges on the 15-member court.
In its lawsuit, the North Carolina NAACP relied on the fact that the state constitution requires a three-fifths majority in the legislature to put amendments on the ballot, and Republicans probably wouldn't have had enough votes without racial gerrymandering.
The lawsuit cited cases from the late 19th century in which North Carolina courts had declared local officials who came to power through illegal elections to be "usurpers" who lacked authority to govern. Many of these cases involved disputes between newly enfranchised Black citizens and the existing white political establishment. In those cases, the North Carolina Supreme Court generally sided with the white officials.
The plaintiffs initially won in state Superior Court in March 2019, with Judge Bryan Colllins finding that the legislature had "lost its claim to popular sovereignty," when it passed the amendments. But lawmakers appealed, and the Court of Appeals heard arguments in the case last fall.
In his Sept. 15 decision, Dillon offered a brief history of the federal lawsuit challenging the racially gerrymandered districts. He claimed that when the legislature drew new election districts in 2011, it was engaging in partisan, as opposed to racial, gerrymandering. But the U.S. Supreme Court affirmed that the districts were drawn on the basis of race.
Dillon seemed to accept the legislature's past justifications for shoehorning Black voters into districts where they were a majority — a gerrymandering tactic known as "packing" that reduces their influence in other districts. He claimed lawmakers' goal "was to ensure that their maps would not run afoul" of the Voting Rights Act (VRA), which prohibits redistricting to dilute Black voters' political power.
Dillon acknowledged that federal courts rejected the argument that the VRA required majority-Black districts, and he made it clear that the court was not endorsing racial gerrymandering.
The Appeals Court's decision declared with underlined emphasis that "partisan gerrymandering is legal" under the U.S. Supreme Court's 2019 ruling. However, it doesn't discuss a state court ruling later that year that extreme gerrymandering violates the North Carolina Constitution.
Dillon repeatedly claimed that the federal courts "did not believe" that the legislature had lost its authority to govern, but he didn't mention that the federal judges explicitly said it was "an unsettled question of state law" that they couldn't resolve. The concurrence from Judge Donna Stroud, acknowledged the federal judges' statement. Stroud, a registered Republican, attacked Collins' 2019 ruling striking down the amendments. "There is no North Carolina law to support the trial court's legal conclusion," she said.
Hours after the ruling, the NAACP announced that it would appeal to the North Carolina Supreme Court, which is required to accept cases in which a Court of Appeals judge dissented. Six of the seven members of the state Supreme Court are Democrats, but three seats are on the ballot in November.
One of the NAACP's lawyers, Irv Joyner of N.C. Central School of Law, said that "there is a stop-gap against illegal usurpation of power in North Carolina's Constitution." Kym Hunter of the Southern Environmental Law Center, who also represents the plaintiffs, said the legislature's "attempt to allow a racially gerrymandered supermajority to lock in their narrow agenda should be forcefully rejected."
After voters approved the voter ID amendment in November 2018, the racially gerrymandered legislature met for a lame-duck session to pass a voter ID law. The resulting law is being challenged in state and federal courts, both of which have blocked it because it likely discriminates against Black voters. The legislature's previous voter ID law, passed in 2013, was struck down by federal courts, which said it targeted Black voters "with almost surgical precision."
In a footnote, Judge Young's dissent noted the irony at the heart of the case: The 2018 voter ID amendment was "designed to prevent citizens from unlawfully voting in our elections," he wrote. "And yet, this amendment was proposed by a General Assembly which was, itself, unlawfully formed."