N.C. Supreme Court limits the power of a racially gerrymandered legislature
The Democratic-controlled North Carolina Supreme Court has ruled to limit a racially gerrymandered state legislature's authority to propose constitutional amendments. The case involves two amendments, a voter ID mandate and a reduction in the state's income tax cap, that were placed on the ballot by a Republican-led legislature elected in districts that courts found discriminated against Black voters.
The Aug. 19 ruling caps off a four-year-long legal battle over the amendments and the authority of the gerrymandered legislature. It's also the first appellate court ruling in the U.S. that imposes some consequences for gerrymandering, beyond requiring new districts, by limiting lawmakers' authority to "alter or abolish" the state constitution. The case was originally brought by the state NAACP and Clean Air Carolina, which later dropped out.
The 4-3 party-line decision was authored by Justice Anita Earls, a former civil rights lawyer who fought racial gerrymandering in North Carolina and other states. "The principles of popular sovereignty and democratic self-rule … mean that individuals can only exercise the sovereign power that the people have transmitted to the legislature if they validly hold legislative office," the ruling stated.
The justices warned that if lawmakers elected in illegal districts have "unreviewable authority to initiate the process of altering or abolishing the constitution, then the fundamental principle that all political power resides with and flows from the people of North Carolina would be threatened."
The legislature narrowly approved the amendments for the ballot, an outcome that likely wouldn't have been possible without the extra seats the GOP gained by gerrymandering Black voters. When Republican lawmakers approved the proposed amendments, the court noted, they knew that "more than two-thirds of all legislative districts needed to be redrawn to achieve compliance with the Equal Protection Clause."
However, the high court did not go so far as to rule that the legislators were illegitimate "usurpers" with no legal authority to govern. "A constitutional amendment enacted by a legislature composed of unconstitutionally elected members should only be invalidated when the threat to popular sovereignty and democratic self-rule is substantial," the ruling stated.
The justices sent the case back to the trial court to answer a few additional questions. They include whether the amendments would insulate legislators "from democratic accountability" and whether they discriminate against the same racial group that was gerrymandered.
The dissent was written by Justice Phil Berger Jr., the son of the state Senate president who's also a defendant in the case. Justice Berger, along with two Democratic justices including Earls, declined requests to recuse themselves from the case. Last year, the court was prepared to disqualify Berger from the case, but it backed down after an intense GOP pressure campaign that included impeachment threats. Ethics rules say judges should sit out any case involving their relatives, but Berger has ruled on lawsuits against his father.
Berger's dissent emphasized voters' subsequent approval of the amendments in November 2018. "Unwilling to accept the results of a procedurally sound election that enshrined the voter ID and tax cap amendments in our state constitution, the majority nullifies the will of the people," it said. However, conservative high courts in Mississippi and other states have also struck down amendments or initiatives approved by voters in recent years.
A bitter legal battle
The North Carolina legislature approved the two amendments for the ballot in the summer of 2018, well after the U.S. Supreme Court had affirmed that lawmakers had been elected in racially gerrymandered districts. Republicans refused to put the amendments on hold until a new legislature was elected in districts that didn't discriminate against Black voters.
The NAACP cited precedents from the post-Civil War era, when the North Carolina Supreme Court settled disputed elections between an emerging Black political movement and the white political establishment. Back then the court sided with white officials and declared the Black challengers "usurpers" who lacked authority to govern.
In 2019, Superior Court Judge Bryan Collins ruled for the plaintiff and struck down the amendments. His ruling said the legislature had "lost its claim to popular sovereignty" after the U.S. Supreme Court ruled the districts unconstitutional.
The ruling could impact another voting rights case that's pending at the North Carolina Supreme Court. After the state's voters ratified the voter ID amendment in 2018, the legislature implemented it by passing a voter ID law during the lame duck period — before a new legislature that hadn't been elected in racially gerrymandered districts could take office and just days before Republicans lost their veto-proof supermajority.
However, state courts have blocked the voter ID law. Federal courts also initially blocked it as the case proceeded, citing a precedent that struck down North Carolina's 2013 voter ID law for targeting Black voters with "almost surgical precision," but an appellate court overturned that ruling. The federal litigation is moving ahead.
North Carolina's high court affirmed a ruling to block the voter ID statute. The justices also agreed to an expedited appeal in the state court lawsuit. While their recent ruling won't directly impact the statute, the loss of the constitutional voter ID mandate may strengthen the argument that the voter ID statute is unconstitutional.
It's unclear if the justices will hear arguments about the statute before this year's election. And it's possible that the amendments lawsuit will reach the high court again in the future.
This November, Republicans will have the chance to win a majority on the N.C. Supreme Court. A GOP group in Washington, D.C., plans to spend millions on high court elections in states — including North Carolina — where justices have cracked down on partisan gerrymandering. Local Republicans have also suggested that a new GOP majority on the court will once again make gerrymandering legal.
Billy is a contributing writer with Facing South who specializes in judicial selection, voting rights, and the courts in North Carolina.