NC NAACP asks state Supreme Court to take up direct review of constitutional amendments case

The North Carolina NAACP today asked the North Carolina Supreme Court to take up direct review of the North Carolina General Assembly’s appeal of a February ruling invalidating two constitutional amendments. The NC NAACP is represented by SELC, Forward Justice, and Attorney Irving Joyner in this case.

The petition comes after the Wake County Superior Court issued a decision voiding two constitutional amendment proposals – one imposing a photo voter ID requirement and another lowering the state income tax cap. The court reasoned that the amendments were invalid because they were placed on the 2018 ballot by an illegally racially gerrymandered General Assembly that did not have legal authority to alter our state’s constitution, which can only be done by a legislature bestowed with popular sovereignty. The unconstitutional racial gerrymander tainted the three-fifths legislative majorities required for constitutional amendment proposals to be submitted to the people for a vote, and the challenged amendments were thus approved by a General Assembly that did not represent the people of North Carolina.

“At stake here is the fundamental legitimacy of our state constitution,” said Senior Attorney Kym Hunter. “For as long as our constitution has had a provision for amendment it has been clear that it may only be altered via the will of the people of North Carolina, and after three fifths of both the state House and Senate have debated, drafted and voted on a potential change. The attempt to obliterate nearly two centuries of history and legal precedent and rewrite our core foundational document to suit the drafters’ own cynical wants should be forcefully rejected.”

In 2017, the United States Supreme Court upheld a ruling that many of North Carolina’s legislative districts had been illegally drawn along racial lines. Following the decennial census in 2010, the General Assembly illegally packed African-American voters into districts to dilute these voters’ voices and to diminish their power. The result was one of the largest unconstitutional racial gerrymanders every encountered by the federal courts, and remedying the constitutional violation required that nearly two-thirds of North Carolina’s legislative districts be redrawn. The remedial districts only went into effect in the November 2018 election, making this the first time in six years that the General Assembly was not elected under the previous racially discriminatory maps. The proposal of the challenged constitutional amendments was one of the final acts of the General Assembly before its illegal supermajority was unseated in the 2018 election.

Defendants, House Speaker Tim Moore and Senate Pro Tem Philip Berger, have appealed the Superior Court’s ruling to the North Carolina Court of Appeals. Given the fundamental import of this case to North Carolina’s democracy and to the legitimacy of our state constitution, and the urgency of resolving lingering questions about voting rights ahead of any attempt to implement Voter ID in 2020, the NC NAACP today filed a “Petition for Discretionary Review,” asking the North Carolina Supreme Court to take up the case directly.

“The prior General Assembly’s attempt to use its illegally-gained power to enshrine constitutional changes was egregious, most particularly in the form of placing a racist photo voter ID requirement in the state constitution,” said NC NAACP President Rev. Dr. T. Anthony Spearman. “It is essential that this stain be fully and finally removed from our state constitution prior to the next election cycles, as we fight against all efforts to disenfranchise voters.”

Under North Carolina law, litigants can ask the Supreme Court to take up direct review of an appeal and bypass the Court of Appeals where a case is of particular statewide import, where a delay in judicial review would result in substantial harm, or where a case involves legal principles of major significance. The NC NAACP stated in its filing today that all these factors are present in this case.

“We continue to press forward with this litigation as swiftly as possible to make clear once and for all that a General Assembly that does not represent the people of North Carolina does not have unlimited power to Act,” Leah Kang, Forward Justice staff attorney, “and we believe that this case will represent a defining moment for North Carolina’s democracy—placing a limit on what rewards a General Assembly may count on which uses illegal racial gerrymandering to seek to entrench its own power.”

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