State Supreme Court issues a limited, well-reasoned check on rogue legislatures

Published August 25, 2022

By Rob Schofield

As you might have heard by now, the North Carolina Supreme Court issued one of its more momentous rulings of recent years last week.

As it turns out, it was also one of the best-reasoned.

At issue in the case of North Carolina NAACP v. Moore, was whether state lawmakers elected under maps found by a federal court to be racially and unconstitutionally gerrymandered can lawfully approve constitutional amendments that would:

  1. allow those same legislators to further entrench their own power,
  2. insulate them from political accountability, or
  3. discriminate against the same racial group harmed by the gerrymandering.

By any fair assessment, that’s what happened in our state in 2018 when the GOP-dominated General Assembly hastily approved some high-impact constitutional amendments in the closing hours of the legislative session, including one to mandate voter ID and another to lower the constitutional cap on the state income tax.

What’s more, and importantly, this state of affairs wasn’t any mystery to the Republican legislative majorities behind it. As the court observed in its ruling, it’s not terribly unusual or inherently illegal for gerrymandered legislatures to pass laws. Indeed, such actions can be necessary in order to keep things running in a state like North Carolina in which legislative maps have been the subject of repeated litigation and have been regularly found to be unconstitutional.

In this situation, however, there was an extraordinary confluence of circumstances that rendered the General Assembly’s actions beyond the pale. As the court observed:

"…what makes this case so unique is that the General Assembly, acting with the knowledge that twenty-eight of its districts were unconstitutionally racially gerrymandered and that more than two-thirds of all legislative districts needed to be redrawn to achieve compliance with the Equal Protection Clause, chose to initiate the process of amending the state constitution at the last possible moment prior to the first opportunity North Carolinians had to elect representatives from presumptively constitutional legislative districts.”

Indeed, the court’s opinion notes that it was unable to identify a similar set of circumstances in state history.

Given such a unique and unprecedented situation, it’s hard to see how the court could have – as Republican defendants demanded – simply let things slide and not placed some kind of minimal check on legislative power.

If the court had embraced the argument advanced by the defendants that it must defer to the actions of de facto General Assemblies like the one that was exercising power in 2018, it would have given the green light to future legislatures to enact and constitute themselves in blatantly unconstitutional districts. Then, before a cure could take effect, they could literally rewrite the state constitution, and alter any number of fundamental rights.

As the court put it:

"If a legislator’s de facto authority is unlimited, legislators who do not lawfully represent the will of the people could exercise legislative powers to evade democratic accountability and entrench themselves and their chosen policies by redefining how the people’s sovereign power is allocated and exercised.”

Instead, the court pursued a middle course – rejecting the GOP defendants’ claim of, in effect, total immunity from review for the gerrymandered legislature, but also rejecting the claim of plaintiffs that the legislature consisted of mere “usurpers.”

As the court stated:

"…a constitutional amendment enacted by a legislature composed of unconstitutionally elected members should only be invalidated when the threat to popular sovereignty and democratic self-rule is substantial.”

It then remanded the case to the trial court to make such a determination.

Republican defendants and conservative commentators have been predictably apoplectic in their response to the ruling – calling it “partisan” and “results driven.” They claim the court’s ruling invites chaos by implicating all kinds of past actions by gerrymandered legislatures and that, in any event, the fact that voters later approved the amendments in question renders the process by which they made it to the ballot irrelevant.

But of course, these arguments conveniently ignore some crucially important facts.

First, as noted, is the limited scope of the ruling. The majority opinion makes clear how and why it applies to only a very limited and extraordinary set of circumstances – none of which implicate past General Assemblies.

Second, the notion that subsequent voter approval of a constitutional amendment somehow cures the flawed manner in which it made it to the ballot ignores both precedent and the well-established process for amending the constitution. Voters, for instance, can’t “cure” the candidacy of someone who turns out to be ineligible for office because of age or residency by giving them the most votes in an election. And so it is here, where the constitutionally prescribed procedures for placing proposed constitutional amendments on the ballot – the timing, the language chosen, etc.… — are all integral factors in the process.

The bottom line: The court’s eminently reasonable and narrowly tailored decision is an example of constitutional jurisprudence at its finest. It reverses an important injustice, avoids unintended consequences, and draws a clear line in the sand for future legislatures to avoid crossing.

Would that all of the nation’s high courts acted with such wisdom and skill.