Gerrymandering means tax cap, voter ID must be removed from NC constitution, NAACP says
Politicians should be allowed to amend the state constitution regardless of whether gerrymandering is later found to have helped them gain power, Republican lawmakers argued in court Monday.
The North Carolina NAACP and others challenging two recent amendments disagreed. Both amendments passed in 2018. One requires voters to show photo ID at the polls, and the other forbids the legislature from ever raising the state income tax rate above 7%. Two other, less controversial amendments also passed that year but aren’t being challenged.
The challengers said the Republican-led legislature gave themselves an inordinate amount of power throughout most of the last decade, specifically by diminishing the influence of Black voters with maps later found to be unconstitutional. Therefore, the NAACP argued, those lawmakers cannot claim to have truly represented the people of the state and should not have had the authority to propose new constitutional amendments.
It’s a complicated debate, both for the technical legal arguments made Monday as well as the broader philosophical questions being raised. But both sides agree on one thing: No court, in North Carolina or anywhere else in the United States, has ever taken up this issue before. Whatever the N.C. Supreme Court does in this case will be breaking new ground.
Underscoring the potentially massive implications of ruling parts of the state constitution illegitimate, the justices made clear that they wanted to understand exactly what the challengers were or weren’t asking for.
North Carolina’s legislative maps have been found to have been gerrymandered numerous times since the 1980s, meaning that a large percentage of state elections in the last 40 years have been held using unconstitutional maps. In that same time a significant number of constitutional amendments — not to mention thousands of state laws and dozens of veto overrides — were passed by legislative majorities of both parties that benefited from unconstitutional gerrymandering.
“I just want to make sure I understand the limits of what you’re asking us to do,” Justice Robin Hudson, a Democrat, said at one point.
Kym Hunter, an attorney for the plaintiffs, said they aren’t asking for all those past laws and amendments to be thrown out. They’re focusing very narrowly, she said, on only the voter ID and income tax amendments and specifically the way they were passed.
“The NAACP is not asking the court to strip the legislature of all powers to pass constitutional amendments,” Hunter said. “If this legislature wanted to go and place voter photo ID on the ballot today, it absolutely has the authority to do that — under legal districts.”
Monday afternoon Democratic Gov. Roy Cooper also weighed in, tweeting that he supported the NAACP’s position.
“The NC Supreme Court heard arguments today on this question: Should an unconstitutionally elected legislature be able to amend the constitution?” Cooper wrote. “I think that’s a clear no.”
How amendments work
In North Carolina, the constitution can only be changed if voters approve an amendment statewide. There’s no question that both the voter ID and income tax amendments passed in 2018, with 55% and 57% of the vote, respectively.
Chief Justice Paul Newby, a Republican, questioned why the amendments should be struck down by the court since voters passed them during the election.
“The ultimate check is with the people,” Newby said. “Why should we discount, or under-value, the vote of the people?”
Hunter said that ever since 1835, the N.C. Constitution has said that the statewide vote is the last step in the amendment process. They’re challenging the first step in the process, however, and arguing that the amendments should never have been allowed on the ballot in the first place.
Putting an amendment on the ballot requires not just a simple majority at the legislature, but a 60% supermajority. At the time Republicans had a supermajority even without any Democratic buy-in, and the amendment proposals passed almost entirely along party lines.
But the NAACP argues that GOP supermajority only existed in the racially gerrymandered maps; once Republicans were forced to redraw the maps they lost their supermajority. Hunter said the court needs to make sure there are actual consequences for politicians engaging in unconstitutional gerrymandering, and they can’t just break the rules and get their way.
“We have seen in North Carolina precisely how bad things can get when a racially gerrymandered legislature can run amok and abuse its power,” she said.
More from oral arguments
Justice Anita Earls, one of two Black Democrats on the court, said the NAACP argued both amendments could harm Black people in North Carolina — the income tax cap by reducing funding for public schools and voter ID by making it harder for Black voters to cast a ballot. And, she pointed out via questioning, GOP lawmakers had not attempted to argue on appeal that either of those claims was false.
She then questioned why “a General Assembly that was elected from districts, that were found to be intentional racial discrimination against Black voters, should be able to pass constitutional amendments that also discriminate against Black voters.”
Martin Warf, an attorney for the legislature, argued that the Supreme Court should not consider the substance of the amendments but rather the process behind them — which he argued the court does not have authority to weigh in on.
Warf also questioned the logic of the NAACP’s request focusing on only some actions taken by the legislature during the time in question — for instance, challenging amendments but not any veto overrides the legislature also voted on, which require the exact same supermajority threshold and similarly passed mostly along party lines.
It would make no sense, Warf continued, for the court to issue a ruling saying that lawmakers in the past had the power to cast some votes but not others.
“They have not articulated a very workable standard for this court to apply,” he said.
Politics and the court
The Supreme Court, which has a 4-3 Democratic majority, recently ruled against the legislature in a different case also related to gerrymandering when it overturned maps drawn last year to be used in the rest of the elections this decade.
Monday’s oral arguments over the amendments concerned maps Republicans drew in 2011, not 2021 like that other recent redistricting case. But both cases are similar in that they deal with questions of the legislature’s power, and how much of an edge politicians should be able to give to their own party through gerrymandering.
The ruling overturning the 2021 maps was along party lines, with all four Democrats on the court voting to throw out the maps and all three Republicans dissenting. In this case over the amendments, so far every ruling and dissent, at trial and at the Court of Appeals, has also come down on party lines.
For more North Carolina government and politics news, listen to the Under the Dome politics podcast from The News & Observer and the NC Insider. You can find it at link.chtbl.com/underthedomenc or wherever you get your podcasts.
This story was originally published February 14, 2022 at 2:09 PM.
