Fresh off a high-profile case over gerrymandering, the North Carolina Supreme Court now has a related and similarly controversial issue to decide: whether actions taken by a gerrymandered legislature are even legitimate.
Oral arguments are scheduled Monday in the case. Depending on how they go, the case could end with the court removing two new amendments from the North Carolina Constitution, despite voters having approved them in 2018.
Because of the slow pace of the courts, this case isn’t about the new district maps — which the Supreme Court ruled unconstitutional this month. Instead, it’s about maps that have long since been overturned, several gerrymandering lawsuits ago.
Yet while the maps in question were ruled unconstitutional years ago, their effects linger on, this lawsuit claims, in the form of the two controversial amendments to the state constitution.
“I think this is another unsettled matter of state law where our Supreme Court needs to protect our democracy and our constitution from abuse by the legislature,” said Kym Hunter, one of the lawyers for the challengers.
The North Carolina NAACP and Clean Air Carolina began the lawsuit almost immediately, seeking to have the amendments thrown out. Now approaching its end, it’s a politically charged case, with suggestions of illegitimacy and threats of impeachment.
What are the amendments?
One requires voters to show photo ID at the polls.
It’s also the subject of two separate lawsuits, in state and federal court. But those could become moot if this case succeeds. So this case — and any ruling in it that comes before the 2022 elections — will be closely watched by politicians and activists on both sides of the aisle.
The other amendment caps the state’s income tax rate, forbidding future legislators from ever raising it above 7%.
It’s currently at 5.25%, and is set to drop again next year to 4.99%, but the income tax rate has been above 7% as recently as 2013. So this amendment locks in the GOP’s low-taxes philosophy, by preventing future politicians from raising the income tax rate back to its previous levels or higher — unless they can pass a constitutional amendment of their own.
Both amendments passed when they were on the ballot in 2018. This lawsuit doesn’t say those votes were illegitimate, but that the process of how they got to the ballot in the first place was.
North Carolina lacks the citizen-led ballot initiatives that many other states have. Here, the only way a constitutional amendment can be proposed is by a supermajority in the state legislature, in a vote that is not subject to the governor’s veto.
How does this relate to gerrymandering?
That’s one of the key questions in the lawsuit.
Republicans had a supermajority for most of the 2010s, so they were able to vote to put the amendments on the ballot. But the NAACP argued that the only reason Republican politicians had enough power to propose the amendments to voters in the first place is because of unfair elections held using gerrymandered maps they drew for themselves.
Since those maps were later struck down, the NAACP said, some of the actions the legislature had taken during that time should also be struck down — like the new amendments.
They won that 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.
That sent shockwaves through the political world. An illegitimate legislature? The implications were massive, potentially opening the door for thousands of lawsuits challenging bills, veto overrides and other actions the legislature took throughout the last decade.
“The Court of Appeals should reverse this outrageous decision as soon as possible to restore the people’s confidence that their voices matter and cannot be invalidated by a single judge who disagrees with their decision,” House Speaker Tim Moore said in 2019 when Collins made his initial ruling.
Lawmakers appealed the ruling, and they won at the N.C. Court of Appeals, setting up this final decision by the Supreme Court.
Will judicial politics matter?
Last week’s gerrymandering ruling from the Supreme Court was a 4-3 decision, with all the Democratic justices voting to throw out the maps and all the Republican justices dissenting, saying they would have let the maps stand.
Whether the decision in this amendments case also breaks down along party lines remains to be seen. But so far the rulings in the case have followed similar trends.
Collins, the judge who ruled against the legislature at trial in 2019, is a Democrat.
At the Court of Appeals in 2020, Republican lawmakers won in a 2-1 decison. The two judges in the majority were Republicans, Chris Dillon and Donna Stroud. Reuben Young, a Democrat, dissented.
If the Supreme Court’s ruling comes down on party lines as well, it could further emphasize the importance of this November’s elections — which will determine which party controls the Supreme Court for the near future. Democrats have a 4-3 majority but two Democratic justices’ seats are up for election this year, so Republicans only have to flip one to take the majority.
Recusals and impeachments?
Once the case went to the Supreme Court, heated questions arose of whether two of the three Republican justices should recuse themselves.
Justice Phil Berger Jr. is the son of N.C. Senate leader Phil Berger Sr., a main defendant in the case. Justice Tamara Barringer in 2018 was a Republican state senator and voted in favor of both amendments. In response to NAACP requests for Berger and Barringer’s recusal, Republicans said Democratic Justice Anita Earls should recuse herself, since she had been honored at an NAACP event after the NAACP filed the lawsuit.
It’s typically up to individual justices to decide whether they should recuse themselves from a case, but this time the Supreme Court asked the parties in the case whether the entire court might have the power to vote to force one or more of their colleagues to recuse.
Republicans were outraged, suspecting that the court’s Democratic majority was looking for a way to disqualify Berger and Barringer. Former NCGOP leader Dallas Woodhouse suggested that if that happened, the legislature could vote to impeach any justices who supported such a plan. He wrote that even if GOP lawmakers lacked the votes to actually remove any of the justices from office, simply starting the process would temporarily force them to stop working — so the legislature could slow-walk impeachment proceedings to “suspend those Democrat justices immediately and indefinitely.”
But the court decided to leave recusal decisions up to individual justices. None of the justices decided to recuse themselves.
What if the amendments are overturned?
Not much would change immediately. The voter ID law has already been blocked from going into place by a separate lawsuit, and the income tax rate is below 7% already.
Caitlin Swain, a lawyer for the NAACP, said part of their goal is to send a message that laws do matter, and that politicians shouldn’t be rewarded for violating the constitution — especially with racial gerrymandering.
“The people need to know that there are consequences,” she said.
Long-term, the policy consequences could be huge, from the tax implications to getting more permanency on the question of voter ID.
Hunter said that as the Republican-led legislature has recently cut income taxes, it has made up for some of the lost revenue by adding sales tax onto more items and services — like car repairs — which means that lower-income people can be stuck paying a larger percentage of their earnings in taxes than the rich do.
“If you place this artificial cap, mandate it into law, you’re either going to limit the services you can put in place in the state or you’re going to have to raise the money,” she said. “Not from the wealthy, but from low-income North Carolinians who can’t afford it.”
Republican leaders have said that even though they cut taxes throughout the last decade — with more tax cuts on the way over the next few years — the state’s tax revenues have grown, not shrunk.
North Carolina had a $6.5 billion budget surplus in 2021, The News & Observer reported.
“Our governance is built on the premise that the cumulative decisions of a free people create more wealth, opportunity, and progress than any government bureaucracy or central planning could ever achieve,” the elder Berger wrote in a 2021 Charlotte Observer opinion piece.
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