In an extraordinary ruling last Friday (in North Carolina NAACP v. Moore), the North Carolina supreme court ruled by a 4-to-3 vote that two state constitutional amendments adopted by North Carolina voters in 2018 can be invalidated because the two houses of the state legislature that proposed them included districts that were racially gerrymandered. The majority’s ruling itself strikes me as a blatant gerrymander, as it reconfigures established doctrine in seeming pursuit of a desired result.
The case arises from the state legislative redistricting plan that North Carolina adopted in 2011. That plan increased the number of majority African-American districts in the house chamber from nine to thirty-two and increased the number of majority African-American districts in the state senate from zero to nine. (I assume that doing so was part of a broader effort to improve the electoral battlefield for Republican candidates.)
To make a very long story short:
In earlier litigation known as Covington v. North Carolina, a federal district court ruled that this redistricting plan violated the federal Equal Protection Clause by creating twenty-eight racially gerrymandered districts. After the Supreme Court vacated its initial remedial order, the district court reluctantly determined in 2017 that it could not order a special election for seats in those districts but instead had to allow those seats to be up, as usual, in the general election in November 2018.
In mid-2018, the state legislature proposed six constitutional amendments for the voters to adopt or reject. The two amendments at issue in this case are the Voter ID Amendment and the Tax Cap Amendment. Both were approved by voters at the general election in November 2018. The Voter ID Amendment generally requires voters who vote in person to provide photo identification. The Tax Cap Amendment reduces the highest state income tax rate from 10% to 7%.
At this same general election in November 2018, Anita Earls, who represented the plaintiffs in the Covington litigation, was elected an associate justice of the state supreme court. Earls, as it happens, was the author of last Friday’s majority ruling (and provided the decisive fourth vote).
At issue in Friday’s ruling was whether the supreme court has authority to void the Voter ID Amendment and the Tax Cap Amendment on the ground that the two houses of the state legislature that jointly proposed them to the voters had legislators elected from unconstitutionally racially gerrymandered districts. To be clear: It is not contested in this case that the houses had legislators elected from unconstitutionally racially gerrymandered districts. (The Covington litigation established that they did.) What is at issue is whether North Carolina’s courts can determine that the legislative authority to propose state constitutional amendments for the people to vote on is thereby impaired and that amendments that the people voted to adopt are invalid.
Justice Earls’s majority opinion sensibly presents three categories of individuals who purport to hold elected offices. One category consists of de jure officers, those who in fact have a legal right to the office. A second consists of de facto officers, those who occupy an office under some color of right but whose title is not in fact good in law. As Earls acknowledges, under established doctrine such individuals “may exercise the power attendant to that office in ways that bind third parties and the public.” The third category consists of usurpers, those who take possession of an office without any authority.
Earls rejects the NAACP’s argument that a de facto officer becomes a usurper once it is finally determined that the person lacks a valid claim to the office. She also concludes that the legislators elected to racially gerrymandered seats “remained de facto officers” after the seats had been finally determined to have been unlawfully gerrymandered. But after presenting the three established categories of legislators who purport to hold elected seats, she concocts a fourth hybrid category: de facto officers who can exercise some but not all of the power of legislators.
Under Earls’s gerrymandered reasoning, legislators elected to unconstitutionally gerrymandered seats have their full power as legislators as to “ordinary legislation” but not as to legislation proposing constitutional amendments to the people for a vote. As to the latter, a court can and must first determine “whether the votes of legislators who were elected as a result of unconstitutional gerrymandering were potentially decisive.” That threshold inquiry is easily satisfied for the Voter ID Amendment and the Tax Cap Amendment.
Earls invents three further standards that must then be applied: (1) “whether there is a substantial risk that a challenged constitutional amendment will immunize legislators from democratic accountability going forward”; (2) “whether there is a substantial risk that a challenged constitutional amendment will … perpetuate the ongoing exclusion of a category of voters from the political process”; and (3) whether a challenged constitutional amendment embodies “policy choices that intentionally discriminate against a particular category of citizens who were also discriminated against in the drawing of the districts from which the legislators who initiated the amendment process were elected.” Her majority opinion then remands application of these vague and malleable standards to the trial court, which, having previously ruled in favor of the NAACP’s challenge, will surely have no difficulty doing so again.
The dissent explains—compellingly, in my view—that precedent and sound legal reasoning dictate that the legal question is not justiciable in the courts in the first place and that, if it is, that the legislators had authority to act. As Justice Phil Berger Jr. writes for the three dissenters, “A government official either has the authority to act, or he does not.” None of the “recognized legal distinctions … have ever limited or hybridized legislative power.” Berger argues that the legislators from gerrymandered districts are best understood as de jure officers, but that if they are instead (as Earls finds) de facto officers, they necessarily possessed full de facto authority. He further points out that “no court, federal or state, [had ever before] concluded that a legislative body which has de facto authority at a minimum should undergo individual ex post evaluations of constitutionally prescribed actions.” Indeed, even the arch-liberal Justice William Douglas acknowledged in Baker v. Carr (1962) that a “legislature, though elected under an unfair apportionment scheme, is nonetheless a legislature empowered to act.”
By her ruling, Justice Earls effectively assures the plaintiff in this case part of the relief that attorney Earls was unable to win for her clients in the Covington litigation. By remanding the matter to the trial court, she also ensures that the final ruling in this litigation against the Voter ID Amendment and the Tax Cap Amendment won’t come until after this November’s election, when voters will no longer be paying much attention.
Having highlighted Earls’s apparent conflict of interest, I will also note that Justice Berger is the son of Philip Berger, who as president pro tem in the state senate is one of two named defendants in the litigation. In addition, Justice Tamara Barringer (also one of the dissenters) served in the state senate when it voted to propose the Voter ID Amendment and the Tax Cap Amendment. (I assume that she voted yes on both proposals, but in a few quick searches I haven’t been able to confirm that.) The participation of each of these three justices was apparently a matter of controversy.