Here’s a question that’s more difficult than you’d think: What do you do when wrongfully elected politicians try to fundamentally change the state constitution?
Even the North Carolina Supreme Court doesn’t quite seem to know.
The court ruled Friday that actions taken by an unconstitutionally gerrymandered state legislature may be invalid — but only in certain cases — because lawmakers elected to office cannot claim to represent the people.
The ruling concerns two constitutional amendments proposed in 2018 by a supermajority of Republican lawmakers, who had been elected under maps that federal courts had already struck down due to unconstitutional racial gerrymandering. One of the amendments was an income tax cap; the other mandated photo ID for voting.
The issue at the heart of this case is an important one: If a legislature is elected through inherently undemocratic means, is it still a democratic body? Are its actions constitutional, even if its path to power was not?
The court’s answer was a muddled “it depends.”
The idea that a legislature could impose its ill-gotten power on future legislatures through a tax cap and on future elections through voter ID seems obviously unjust. It’s trickier, though, to determine how such an injustice should be corrected, and the fact that both amendments were technically approved by a majority of voters in the 2018 election makes it an even thornier issue.
Is it prudent, for instance, to allow every legislative decision made over the course of nearly a decade to be challenged and possibly nullified? What about laws or amendments enacted when districts were gerrymandered by Democrats in the 1990s? Probably not, and that’s a distinction the court appears desperate to make.
A line needs to be drawn somewhere, and the ruling attempts to arbitrate one. Ordinary laws passed by the legislature are not presumptively invalid, the court said, but constitutional amendments are fundamentally different.
The court reasoned that the amendments likely would not have made it to the ballot if not for gerrymandering, since there would not have been a supermajority of Republican votes. That’s a bit of a guess, but not an unreasonable conclusion, considering more than two-thirds of the districts had to be redrawn — which was well-established at the time the amendments were proposed.
Then things got fuzzier. The court drew another line by saying that not all amendments proposed by a gerrymandered legislature are necessarily invalid. It sets forth a number of standards for distinguishing those which “so gravely threaten principles of popular sovereignty and democratic self-rule as to require retroactive invalidation.” In the end, it advised the trial court to re-evaluate the amendments in question based upon those standards.
GOP lawmakers predictably slammed the ruling as unprecedented and an “abuse of power.” The court’s Republican justices, in their dissent, accused the majority of causing “chaos and confusion” for voters now that the amendments they voted for may no longer be valid. But the chaos and confusion is not new, nor are the courts the ones responsible for it.
There’s not exactly a constitutional playbook for handling decisions made by a wrongfully elected legislature, because our constitution never intended for such a thing to happen in the first place. In fact, the court states in the very first line of the ruling that the case “involves completely unprecedented circumstances that give rise to a novel legal issue.”
But this is not, as Republicans allege, a blatantly partisan judiciary attempting to usurp the will of the people. Rather, it’s a judiciary struggling to right the many wrongs of a self-aggrandizing legislature that compromised the most fundamental democratic ideal: that voters should pick their politicians, not the other way around.
North Carolina has to redraw its maps so often that voters can barely keep track of what district they live in and who represents them. Laws have been written with the sole intent of disenfranchising large swaths of voters, who still do not have equal power or representation in government. So if North Carolinians have lost faith in their government, it is likely not this court’s doing.
In some ways, it is satisfying to see Republicans discover consequences to their actions. Unfortunately, they do not bear those consequences alone. And we are troubled by the destabilizing effect this ruling could have if it allows virtually any decision made in our state’s recent history to be challenged, even if the power on which those decisions rest should, in theory, be questioned.
It’s a mess. It has always been a mess. Republicans didn’t invent gerrymandering, but they made an art and a science of it, compromising democracy to entrench themselves in power. And now, a tortured court ruling shows there’s no easy way out of it.
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