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Two controversial constitutional amendments ruled as valid by North Carolina appelate court

Two controversial constitutional amendments ruled as valid by North Carolina appelate court

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Two controversial constitutional amendments passed by North Carolina voters in November 2018 — photo voter ID and income-tax cap — have been declared valid by a three-judge panel of the N.C. Court of Appeals.

The ruling was posted Tuesday. The panel voted along partisan lines, with Republicans Chris Dillon and Donna Stroud in support and Democrat Reuben Young in dissent.

Wake Forest University political science professor John Dinan said that because the voter ID requirement is the subject of several other lawsuits that have found fault in North Carolina on other grounds, "this ruling has no effect on reinstating the lack of a voter ID requirement in the 2020 election."

Because of the split ruling, the state's NAACP said it will employ an automatic appeal to the state Supreme Court, which is 6-1 Democratic. 

"The sweeping unconstitutional racial gerrymander fatally tainted the three-fifths legislative majorities required for constitutional amendment proposals to be submitted to the people for a vote," the NAACP said Tuesday.

The Rev. Dr. T. Anthony Spearman, president of the state NAACP, said in a statement that the appeal to the state Supreme Court will be made "to ensure that the people’s voice is heard and that the foundational principles of our democracy and our Constitution is preserved and protected.

"The road to justice is not a straight line, but we will not rest until it is won.”

However, Dinan said it is unlikely the justices would overturn the appellate panel's ruling. Dinan is a national expert on state legislature.

"It has always been one of the more implausible legal claims advanced in North Carolina courts in recent years —that the legislature loses its ability to place constitutional amendments on the ballot for voter ratification after a court concludes that legislative districts have been gerrymandered," Dinan said. "It would be virtually unprecedented for a state Supreme Court to embrace such an argument and invalidate voter-ratified constitutional amendments on the 'usurper' reasoning advanced by plaintiffs."

Amendments passed in 2018 vote

In June 2018, the Republican super-majority passed separate bills that presented six constitutional amendments to voters for the November 2018 election.

Among the amendments were those that:

  • Required voters to provide photo identification before voting in person.
  • Reduced the income-tax rate in N.C. to a maximum allowable rate of 7%, down from 10%.

The voter ID amendment passed by a 55.5% to 44.5% margin, while the income tax cap passed by a 57.35% to 42.65% margin.

The state NAACP sued in Wake Superior Court to have the two constitutional amendments declared void.

The group's argument was that the 2017-18 General Assembly was illegally constituted. A federal court ruled in 2017 that 28 legislative districts were racially gerrymandered to the advantage of the then-Republican super-majorities in both chambers.

The plaintiffs argued that an illegally gerrymandered legislature was not legally authorized to pass bills that put the constitutional amendments on the ballot.

Wake Superior Judge Bryan Collins agreed, ruling that the gerrymandered legislature "did not represent the people of North Carolina" ... and were "not empowered to pass legislation that would (propose, for the people's consideration, amendments to) the state's Constitution."

Senate leader Phil Berger, R-Rockingham, and House speaker Tim Moore, R-Cleveland, appealed the ruling to the state Appeals court.

In May 2019, the appellate court temporarily set aside Collins' ruling.

Judges' rulings

On Tuesday, the majority of the appellate panel ruled that Collins erred in his ruling, saying the state Constitution "granted to our General Assembly the authority to pass bills proposing amendments for the people's consideration."

Essentially, the Republican judges ruled that the illegal gerrymandering did not cause the General Assembly to lose its authority "to exercise the power granted by our state Constitution to our legislative branch to propose amendments to the people."

"The overwhelming, if not universal, authority compels our conclusion that the Superior Court erred in declaring that the members of our General Assembly, duly elected in 2016, lacked authority to pass bills proposing amendments for the people's consideration."

"Specifically, our (Supreme) Court recognized that 'judicial power' does not extend to the power to declare retroactively that our General Assembly lacked the authority to pass bills simply because some legislators were elected from unconstitutionally designed districts."

Young wrote in his dissent that the Superior Court ruling was correct in that "if an unlawfully formed legislature could indeed amend the (state) Constitution, it could do so to grant itself the veneer of legitimacy."

"It could seek, by offering amendments for public approval, to ratify and make lawful its own unlawful existence. Such an act would necessarily be abhorrent to all principles of democracy.

"It bears recognizing that the act of placing these amendments on the ballot does not cure them of their unlawful origins," Young wrote. "The people of this state cannot, by popular vote, approve an unlawful act of the General Assembly."

'Great day for democracy'

Moore said in a statement Tuesday that the panel's ruling "was a great day for democracy."

"We kept the faith in the vote of the people, knowing North Carolina courts should not interfere with their sovereign power to amend our state constitution," Moore said. "Our citizens can have confidence their vote on critical issues for our economy and our elections systems will count, and not be overridden by activist courts."

Mitch Kokai, senior policy analyst with Libertarian think tank John Locke Foundation, said there likely will be no rush to resolve the issue involving the constitutional amendments in the state Supreme Court.

"If the High Court reverses the appellate judges, it will be avoiding a finding that ’there is no North Carolina law to support the trial court’s legal conclusions.’ "

Daryl Atkinson, co-director of Forward Justice, said the Republican-controlled General Assembly "does not have unchecked power to transform the foundational document of our state that they acquired illegally through discriminatory means."

"We believe that ultimately, this case will represent a defining moment for North Carolina’s democracy — placing a limit on what rewards a General Assembly may count on which uses illegal racial gerrymandering to seek to entrench its own power.”

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@rcraverWSJ

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