A North Carolina appeals court is considering whether to void changes to the state constitution that voters approved last year because they were placed on the ballot by lawmakers elected in racially gerrymandered districts, lawyers said Thursday.
The state Court of Appeals will decide whether the Republican-controlled legislature lacked authority to put those constitutional amendments before voters. At stake is whether the actions of lawmakers elected from districts designed to disenfranchise unfriendly voters for partisan advantage can be reversed or stay in effect.
If the state NAACP’s lawsuit succeeds, laws passed by the General Assembly over the years could be challenged, potentially causing chaos and setting free criminals convicted under those laws, said Martin Warf, a lawyer for GOP legislative leaders.
“No court has ever said that one of the remedies is striking down all of the laws of the past,” he said.
A lawyer for the civil rights organization said GOP legislators knew that courts determined their legislative districts cheated black voters and didn’t represent the people. Despite that, Republicans pushed changes to the state constitution making virtually permanent limits on income tax rates and requirements to show identification when voting, NAACP attorney Kym Hunter said.
A Wake County trial judge ruled earlier this year that the General Assembly that wrote and proposed the constitutional changes last year lacked authority. The U.S. Supreme Court in 2017 declared the 2016 legislative elections included districts designed to illegally disadvantage black voters.
What are “the limits for acts of a General Assembly that has been found to be the product of widespread and illegal racial gerrymandering?” Judge Reuben Young asked Warf.
Courts have mostly ruled that the solution is redrawing districts and holding a new election, Warf said. And anyway, the constitution’s separation of powers means lawmakers themselves and not courts decide who is qualified to be a member of the General Assembly, he said.
Hunter later took up Young’s question, arguing that the GOP argument is that “however gerrymandered a General Assembly is, they can do whatever they want, however much that might further entrench their power. That is precisely what they did here.”
Sure, voters approved the constitutional changes recommended by their legislature, Hunter said, but the state constitution has always had a two-stage process for amendments to slow down changes and encourage more social stability. In this case, the first step was short-circuited by lawmakers, she said.
If the amendments are invalidated because they were proposed by an invalid legislature, couldn’t other laws passed during the same period also be voided?, judges asked.
“We’ve got to balance the fact that, yes, this legislature does not represent the people, with the fact that we do want an orderly government of some kind,” Hunter said. Courts have allowed that even invalid legislatures had standing to pass budgets or react to emergencies, she said. But a constitutional change that doesn’t address immediate needs and could persist for decades isn’t tolerable, Hunter said.
Democrats and their allies have long fought voter ID requirements, calling them an unnecessary obstacle for people to vote. But adding them to the constitution means reversing the mandate would be difficult. The other amendment struck down lowered the maximum state income tax rate from 10% to 7%. The current personal income tax rate is 5.25%.
A Court of Appeals decision could be challenged to the state Supreme Court, where Democrats hold six out of seven seats.