Support floods in to bolster ruling invalidating 2 N.C. constitutional amendments

North Carolina Court of Appeals in Raleigh. 

On Friday, the North Carolina NAACP, represented by SELC and Forward Justice, urged the North Carolina Court of Appeals to uphold the Wake County Superior Court’s February 2019 ruling that two North Carolina constitutional amendment proposals are unconstitutional because they were placed on the ballot by an illegally gerrymandered General Assembly. One amendment would impose a photo ID requirement for voters and the other would lower the state income tax cap.

Support for the North Carolina NAACP’s challenge came from a variety of parties include North Carolina Governor Roy Cooper, the North Carolina Legislative Black Caucus, Democracy North Carolina, and 15 constitutional law professors from North Carolina’s six law schools, who all filed amicus curiae briefs in the case.

Governor Roy Cooper highlighted the essential role of the courts in maintaining the appropriate balance of power among the three branches of government, and provided numerous examples of the illegal supermajority’s attempts to entrench their policy views by passing legislation that, among other things, encroached on the executive branch’s power to enforce the laws. According to the governor, “when those efforts were invalidated by the courts, the legislative leadership sought to take advantage of its unconstitutionally gerrymandered supermajority to enshrine in our constitution what it could not achieve through statutory enactments.”

The North Carolina Legislative Black Caucus argued that the amendments were intentionally aimed at entrenching the supermajority’s illegally-procured power by disenfranchising African Americans long after the illegal gerrymander was remedied. The caucus noted that, unlike a regular law that could be overturned by a simple majority in a newly-constituted General Assembly, the “difficulty of undoing constitutional amendments was a significant part of their appeal” for General Assembly leadership. Furthermore, if the General Assembly had not engaged in the “most extensive unconstitutional racial gerrymander ever encountered by a federal court” – which artificially depressed the number of members of the Caucus in the General Assembly in 2018 – caucus members could have played a critical role in stopping these amendments.

In its brief, Democracy North Carolina emphasized that the voter ID amendment was a classic example of “the most straightforward political entrenchment strategy” of preventing one’s opponents from casting ballots, since voter identification laws disproportionately disenfranchise African Americans who are more likely to vote for Democratic candidates.

The 15 constitutional law professors, representing all six public and private law schools in the state of North Carolina, recounted the history and purpose behind the procedures enshrined in the state’s constitution for its amendment. The professors then unanimously agreed that the procedures that lead to placing these two amendments on the ballot in 2018 were “fatally flawed,” and nothing more than a brazen attempt to exploit the constitutional amendment process for partisan ends.

Oral argument in the case is expected later this year.

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