The North Carolina Supreme Court ruled decisively for the forces of democracy last week, setting the stage to invalidate illicitly proposed amendments to the state constitution. This immediately creates a remedy for voters targeted for exclusion by legislators the courts already determined to be illegitimately elected due to racially gerrymandered legislative maps.
Beyond North Carolina, the ruling provides a blueprint to advocates for democracy to challenge similar laws in their own states’ courts, where many more voting rights cases will be tried following the U.S. Supreme Court’s ruling that partisan gerrymandering is beyond the reach of federal courts.
This case, North Carolina NAACP v. Moore, challenged two of the amendments proposed by a legislature elected from districts the Supreme Court deemed unconstitutional racial gerrymanders — where redistricting maps are drawn to favor one party over the other — before the amendments were even proposed. After being ordered to draw new legislative districts, the North Carolina General Assembly proposed six amendments to the state constitution, two of which were challenged in this case. One of the amendments added a photo ID requirement for in-person voting to the state constitution. The other reduced the maximum state income tax rate from 10% to 7%.
North Carolina is on the front lines of the battle between democracy and antidemocracy. The state has seen racial gerrymandering, partisan gerrymandering, unconstitutional voter ID laws, constitutional amendments proposed to entrench an unconstitutionally empowered legislative majority, a House of Representatives race rerun due to fraud, and a surprise special session to rewrite the relationship between the executive and legislative branches of the state’s government. The state legislature has found itself in court so often, it appealed to the Supreme Court to have counsel other than the democratically elected state attorney general.
That all stems from the 2010 midterm elections, when millionaire businessman Art Pope, the state’s own low-rent version of the Koch Brothers, funded a massive effort to win marginal state legislative seats to control the upcoming redistricting process.
The resulting gerrymander has consistently handed legislative supermajorities to Republicans elected with only minority support from voters. You see, the will of the people of North Carolina frequently favors the Democrats, and so the antidemocrats in the state Republican party work tirelessly to prevent the popular will from controlling the political process.
None of that should happen in a democracy.
Black and Brown people targeted by racially manipulated maps designed to weaken their voting power shouldn’t still have to fight for their right to vote year in and year out. Yet, antidemocratic forces would rather rely on the old habits of segregation than come up with an inclusive political message. There should be a remedy when antidemocratic legislators abuse the democratic process to entrench their power; the people should have a means of clawing back their sovereign power other than simply voting out the bad actors in an unfair contest.
Ultimately, the North Carolina Supreme Court did not rule on whether the amendments were validly enacted; they were remanded for further consideration. But the process of getting to that result was a master class in political law from one of my favorite movement judges, Anita Earls. Prior to joining the bench, Justice Earls spent two decades as a civil rights advocate in both government and nonprofit organizations.
While the trial court accepted the NAACP’s arguments, ruling the two amendments void due to the unconstitutional composition of the legislature that enacted them, Earls took a more nuanced approach. She grounded her ruling in the equitable principle that when someone holds a position illegitimately, it may not be practical to replace them immediately, and so courts tend to treat their official acts no differently than if they were legitimate. But because it’s an equitable principle, the court needs to consider what’s fair — and allowing legislators elected using racist maps to entrench a racist voting restriction in the state constitution is anything but fair.
As consequential as it is, Earls’ opinion is a narrow one. While the amendments in question may be challenged, their validity must be evaluated on equitable principles. A constitutional amendment proposed by an invalidly selected legislature is only subject to challenge if it either entrenches the political power of its proponents against democratic accountability, perpetuates the ongoing exclusion of some category of voters from the political process, or intentionally discriminates against a category of citizens who were also discriminated against in the election of the illegitimate legislature.
This doctrine is likely sufficient to defeat the voter ID amendment but may not be broad enough to defeat the income tax restriction, if the matter even heads back to the trial court now.
In his dissent, Justice Philip Berger Jr. invoked two federal constitutional provisions, providing a clear invitation for an appeal to the Supreme Court. And while his claim that this matter is a political question courts can’t review rings hollow, his constitutional arguments may give the court’s Republican supermajority enough ground to interfere.
The Supreme Court is acutely aware the U.S. Constitution is not a democratic document. The defense of such an appeal almost relies on the hope that Chief Justice John Roberts, who authored the opinion in Shelby County that dismantled the Voting Rights Act, will accept the argument that Earls’ opinion is entirely a matter of state law. This hinges on whether he’ll be able to convince one of his conservative colleagues to respect states’ rights when it actually benefits marginalized people.
We should recognize Justice Earls’ opinion for what it is: An extraordinary remedy for the extraordinary act of attempting to amend the state constitution to solidify partisan gains. While ordinary legislation can simply be reversed by a later legislature elected fairly, constitutional amendments are more permanent, and courts must be able to void them when they are illegitimately enacted toward illegitimate ends.
Brandon Hasbrouck is a Washington and Lee University School of Law assistant professor who researches and teaches in the areas of criminal law, criminal procedure, movement law, and abolition. Find him on Twitter at @b_hasbrouck.