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Never before has an illegally gerrymandered legislature changed a state’s constitution, according to oral arguments made before the N.C. Supreme Court on Monday.
Now, the seven justices have to decide legal questions never presented to any court in the country: To what extent was the state’s General Assembly still allowed to act, despite being illegally constituted, and do the courts have the power to make that call?
During the arguments, the four Democratic justices indicated support for plaintiff’s arguments that the 2018 constitutional amendments can be voided from the state constitution.
The state chapter of the NAACP sued the state legislature before the amendments were put on the ballot, arguing it had standing to sue because the amendments harmed the Black people the group represented.
“We have seen in North Carolina precisely how bad things can get when a racially gerrymandered legislature is allowed to run amok and abuse its power in the dying days of its power,” said Kym Hunter, the attorney representing the NAACP.
If the NAACP wins, the amendments putting a 7% cap on income taxes and requiring photo ID to vote will be nullified. That would hurt Republican legislative arguments defending their voter ID law, which is currently blocked in state court for being racially discriminatory.
The NAACP targeted these two amendments because they disproportionately harm communities of color, according to the uncontested factual findings of the trial court. The plaintiff is not challenging the two other amendments because the organization wouldn’t have standing, Hunter said.
Republican Justices Paul Newby, the court’s chief justice, and Phil Berger Jr., the son of Senate President Pro Tempore Phil Berger, who is named as a defendant in his official capacity in the case, expressed doubt about the court’s authority to intervene.
Newby pointed to the amendment procedure, whereby proposed amendments need to be passed by a three-fifths supermajority of the House and Senate, before being put on the ballot for a popular vote. Four of the six amendments, including two that the NAACP is challenging, were passed by voters.
“Why should we discount the vote of the people?” Newby asked.
The lawyer for the legislature, Martin Warf, elaborated this argument, saying the popular vote was the “ultimate check” on the authority of the legislature, even one that is unconstitutionally elected.
Democratic justices asked whether the courts could place any limit on an illegally constituted General Assembly.
Warf said no. Further, he argued that no legislature loses its authority to act even when deemed unconstitutional by the courts. Courts can overturn specific laws passed by the legislature, but it cannot challenge the legitimacy of the institution itself, the question at issue here, Warf argued.
Counsel for the plaintiff disagreed and attempted to lay out “manageable standards” that the court could follow.
The NAACP relies heavily on the federal case Covington v. North Carolina, which the U.S. Supreme Court affirmed on June 5, 2017, ruling that the state’s political maps violated the 14th Amendment.
The maps limited the political power of Black voters, allowing Republicans to win a supermajority in the state House and Senate, federal courts said. The U.S. Court of Appeals in that case ruled that all legislators from illegally drawn districts lost their popular sovereignty, or authority to legislate.
The federal courts ordered new elections under fair maps but noted that it was a question of state sovereignty to determine what power that legislature had before new elections were held, Hunter said. That is the question now before the state Supreme Court.
Given that 117 of the state’s 150 legislative districts needed to be redrawn to create a constitutional map, the NAACP’s arguments would mean basically all actions of that legislature were unconstitutional.
That would include when the Republican supermajority in the legislature voted in June 2018, in the final two days of its session, to approve six constitutional amendments to be put on the ballot later that year.
Justice Berger, echoing concerns from defendants, asked what would stop the courts from overturning every action of the legislature between 2011 and January 2019, when a new legislature was seated after an election under newly drawn maps in 2018.
“The court, as it always does, has to look for manageable standards and has to look where it’s most important that the court step in and protect our democracy,” Hunter said.
The NAACP suggested a time-limited standard, starting when the U.S. Supreme Court issued its order in June 2017 and ending with the new legislature in 2019. During that time, the legislature was on notice “that it might not have unlimited authority to act,” Hunter said.
The NAACP also argued that because constitutional amendments are so difficult to overturn, they are distinct from regular legislative acts and subject to judicial scrutiny.
Legislative defendants, Phil Berger Sr. and House Speaker Tim Moore, argued they never lost the authority to act.
They were elected under maps that were “valid at the time” and sworn into office, Warf said. He pointed to previous cases on the authority of illegally constituted legislatures, and the rulings consistently found that even illegally constituted bodies still retain authority to pass laws.
Warf argued the plaintiff’s standards were unworkable from a legal standpoint.
“You’re either alive or you’re dead,” Warf said. “You either have popular sovereignty to act and your laws are subject to de facto status, or they are not.”
By that standard, either the legislature could pass laws while elected on unconstitutional maps, including putting constitutional amendments before voters, or not. Popular sovereignty is not pick-and-choose, Warf said.
If the legislature didn’t have popular sovereignty, then the court would open the doors to overturning every act of the legislature, which would invite chaos and confusion, as previous courts have found when considering laws passed by illegally constituted legislatures, Warf said.
He also argued that the legislature’s authority is a political question, meaning it’s not one the court can address.
Democratic Justice Robin Hudson asked whether the courts could enforce any remedy for such an unconstitutional legislature.
Ordering new elections, which is what the federal courts did, Warf said. Until the elections were held, the legislature retained its authority to act, he said.
The federal courts attempted to order special elections in 2017, but the General Assembly used delaying tactics, counsel for the plaintiff argued, and new elections weren’t held until the normal end of the legislature’s terms.
Democratic Justice Michael Morgan then asked whether, since the remedy of new elections was delayed, and in that delay, the legislature used its illegal supermajority to put amendments in front of voters, the state court could invalidate the amendments.
Warf again said no. The remedy to abuse of power is to vote, Warf said.
Democratic Justice Anita Earls asked whether it made any difference that the General Assembly elected on racially discriminatory political maps approved constitutional amendments discriminating against Black voters.
Warf said the argument before the court was not on the substance of the amendments but on the power of the legislature. The plaintiffs are asking for a check on the legislature itself, not on the laws it passes, which would be a judicial reach no other court has ever made, Warf argued.
If the legislative defendants prevail, then the amendments would stand until three-fifths of the legislature and a majority of North Carolina’s voters overturn them, an event Hudson pointed out “rarely, if ever,” happens.