NC’s highest court rules on gerrymandered legislature’s power, but the case isn’t over

North Carolina’s state legislature was unconstitutionally gerrymandered to the extent that lawmakers may have lacked the authority to claim to represent the people, when they passed new constitutional amendments in 2018, the N.C. Supreme Court ruled Friday.

“Today’s decision sends a watershed message in favor of accountability and North Carolina democracy,” said Deborah Maxwell, president of the North Carolina NAACP, which brought the lawsuit. “Rigging elections by trampling on the rights of Black voters has consequences.”

One of the state constitutional amendments in question required voters to show photo ID to cast a ballot. It has never been used, however, due to this and other lawsuits challenging it. The other banned future politicians from raising the state’s income tax rate above 7%.

Justice Anita Earls’ majority opinion states that “amendments that could change basic tenets of our constitutional system of government warrant heightened scrutiny,” especially when written by “legislators whose claim to represent the people’s will has been disputed.”

Friday’s ruling doesn’t immediately overturn the amendments. Instead, the justices sent the case back to trial in Wake County, where a judge had previously reached a similar conclusion about the legislature being too gerrymandered to amend the constitution. That initial trial court ruling needed more rigor, the Supreme Court ruled Friday, so the justices set forth a number of standards and questions, and told the judge to issue a new ruling based on that guidance.

The opinion was a 4-3 ruling along party lines. All three Republican justices dissented, saying they would have let the GOP-backed amendments stand. All four Democratic justices voted in the majority, finding that pro-Republican gerrymandering could have made the amendments illegitimate.

While the ruling focused on whether the amendments should’ve been put in front of voters in 2018 at all, Republican leaders focused on what happened next, when voters approved the amendments.

“Four Democratic justices have all but thrown out the legitimate votes of millions of North Carolinians in a brazen, partisan attempt to remove the voter ID requirement from our Constitution and deny the people the ability to amend their own Constitution,” said Sen. Paul Newton, a Republican who co-chairs the Senate Redistricting and Elections Committee, in a press release. “This is a direct attack on our democratic form of government from the most activist court in the state’s history.”

Headed to US Supreme Court?

Justice Phil Berger Jr., a Republican whose father is Senate leader Phil Berger, wrote a dissent that suggested GOP lawmakers may want to try asking the U.S. Supreme Court — which has a conservative majority — to weigh in.

“Striking at the very heart of our form of government, the majority unilaterally reassigns constitutional duties and declares that the will of the judges is superior to the will of the people of North Carolina,” the younger Berger wrote. “At what point does the seizure of popular sovereignty by this Court violate the federal constitution?”

Republican lawmakers took a similar tactic recently when they lost a 2022 gerrymandering case at the N.C. Supreme Court. They appealed to the U.S. Supreme Court with an argument that state courts should have no power to rule on many election-related cases. It’s a controversial argument that gained national attention in June when the U.S. Supreme Court agreed to hear it before the 2024 elections.

While it wasn’t immediately clear if they plan to appeal this case to the U.S. Supreme Court, House Speaker Tim Moore said he would keep fighting what he called “a judicial coup.”

“This party-line ruling is in direct contradiction to the rule of law and the will of the voters, “ Moore said in a news release. “The people of North Carolina will not stand for the blatant judicial activism and misconduct that has seized our state’s highest court, and neither will I.

“I will continue to fight for the Voter ID and Tax Cap Amendments, which were overwhelmingly approved by the people of North Carolina. It’s time to end the judicial coup that is unilaterally altering our constitution and subverting the will of North Carolina voters.”

While the younger Berger criticized the court for interfering with the legislature’s intentions, Caitlin Swain, co-director of Forward Justice, wrote in a news release that it’s “the perfect illustration of how the concept of checks and balances in our democracy is supposed to work.”

Swain’s Durham-based racial justice group is also involved in the lawsuit, and has been behind other recent political lawsuits as well, winning a recent victory that gave back voting rights to people with felony records once they’re out of prison.

Voter ID and racial discrimination

This lawsuit was one of three ways that Black voters and Democrats have challenged the voter ID mandate.

This one targets the constitutional amendment itself, while two other lawsuits challenge a law that implements the amendment, calling it unconstitutional on grounds of racial discrimination. The other two lawsuits could still lead to the mandate being overturned, and they have kept it blocked so far. Despite being approved by the legislature and then by voters in the 2018 elections, voter ID has never been allowed to be used since then, due to the ongoing legal battles.

Republican lawmakers’ previous attempt at a voter ID law, in 2013, was ruled unconstitutional in federal court for being passed with explicit racial intentions.

Lawmakers requested data showing which racial groups were most or least likely to have certain forms of IDs, or when those groups voted. They then wrote the voter ID law to exclude types of IDs that Black voters were more likely to have than white voters, and eliminated days of early voting that were used more by Black voters.

The federal 4th Circuit Court of Appeals called the case “as close to a smoking gun as we are likely to see in modern times” of racism in election laws, since the changes “target African Americans with almost surgical precision.”

Conservatives at the legislature protested that decision, then immediately worked to pass the new 2018 version of the law, which they said should address the concerns of racism. They also sought to give it stronger protections from being undone in the future by passing it as a constitutional amendment instead of a normal law.

Constitutional amendment and a gerrymandered legislature

Constitutional amendments in North Carolina may only be proposed in one way: With a supermajority of 60% support in both the N.C. House and N.C. Senate.

The voter ID amendment passed almost entirely along party lines, with every Republican voting for it and all but a handful of Democrats opposing it.

Around the same time as that 2018 vote, a separate lawsuit determined that the district maps those lawmakers had been elected in were unconstitutionally gerrymandered to give Republicans a disproportionate amount of power. And when elections were held later that same year, using new court-ordered maps, Democrats did win enough seats to break the GOP supermajority in both chambers.

That led to the lawsuit the Supreme Court ruled on Friday.

The NAACP sued, arguing that constitutional amendments shouldn’t be allowed to stand — even if the majority of voters approved them — if they only made the ballot in the first place because of unconstitutional gerrymandering.

They won the argument at trial.

“An illegally constituted General Assembly does not represent the people of North Carolina and is therefore not empowered to pass legislation that would amend the state’s constitution,” wrote Wake County Superior Court Judge Bryan Collins, a Democrat, in his 2019 ruling, The News & Observer reported.

However, the legislature won at the Court of Appeals, with two Republican judges ruling in favor of the GOP and a Democratic judge dissenting. One of the judges questioned whether this would lead down a slippery slope, The N&O reported, pointing out during oral arguments that the most recent version of the state constitution itself was written in 1971, when there was only a single Black lawmaker in the entire legislature.

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