By Tyler Brooks | Law Office of B. Tyler Brooks
In 2018, North Carolina voters approved four amendments to the state constitution. One of those amendments authorized a voter ID requirement and another lowered the cap on state income taxes from 10% to 7%.
No sooner had these amendments been approved by voters than liberal interest groups, led by the NAACP, asked a state court judge to declare them invalid. In search of a theory to nullify the votes of millions of North Carolinians, these groups argued in court that the members of the General Assembly who had voted to put these amendments on the ballot were in fact “usurpers” who has no authority to propose constitutional amendments to the people. This novel assertion was premised on the fact that a federal court had previously found some of the legislature’s districts to be unlawful gerrymanders.
To say that this legal theory was unprecedented is an understatement. For decades, courts have ruled legislative districts in different states, including North Carolina, invalid for various reasons, but it had never before been held that the legislators elected from those districts were thereby prevented from discharging their duties and powers while in office.
Nevertheless, a Wake County Superior Court judge struck down these two amendments. If there was any doubt that the litigation had partisan political objectives, it is dispelled by the fact that those suing left unchallenged two other amendments that were proposed and passed at the same time: one to provide greater protections to the right to hunt and fish and another to better protect the rights of crime victims. If the challengers’ legal theories were correct, these amendments should have been struck down as well, but that result would have been politically unpalatable.
Speaker of the North Carolina State House Tim Moore and President Pro Tempore of the North Carolina State Senate Phil Berger, both of whom were defendants in the lawsuit, defended the amendments in court and, when the trial judge ruled in favor of the liberal interest groups, these legislative leaders immediately appealed to the North Carolina Court of Appeals.
On Tuesday, the Court of Appeals released its opinion in NC State Conference of the NAACP v. Moore, reversing the trial court. In the principal opinion for the Court, Judge Chris Dillon explained, “[T]he overwhelming, if not universal, authority compels our conclusion that the superior court here erred in declaring that the members of our General Assembly duly elected in 2016 lacked authority to pass bills proposing amendments for the people’s consideration, a power expressly granted to our legislative branch by our state constitution.” After discussing the weaknesses in the arguments made by the liberal groups, Judge Dillon concluded by saying, “It is simply beyond [a court’s] power to thwart the otherwise lawful exercise of constitutional power by our legislative branch to pass bills proposing [constitutional] amendments.”
Judge Donna Stroud, who likewise voted to reverse the trial court, authored a separate opinion addressing other aspects of the case. Judge Stroud observed that “the logical conclusion” of the theory accepted by the lower court “would be that North Carolina has not had a General Assembly with any authority to act since at least 2011.” This would result in “chaos”—a fact that underscored the untenable nature of the arguments being advanced by the liberal challengers to the two amendments.
One judge on the panel disagreed, however. Judge Ruben Young, a Democrat appointed to the Court of Appeals by Governor Roy Cooper in 2019, would have upheld the trial court’s decision to invalidate the votes of the citizens who had supported these two amendments.
Because one of the three judges on the Court of Appeals panel dissented from Tuesday’s opinion, those challenging the two amendments now have the right to appeal to the Supreme Court, where there are currently six Democrats and only one Republican. It is not clear whether the Supreme Court will hear the case before November, when three of the seven justices are up for election. Who sits on the Supreme Court after the November 3 elections could play a large role in how this case is ultimately resolved.
Judge Chris Dillon, who wrote the opinion for the majority that reinstates Voter ID is running for re-election to the Court of Appeals this year. Remember Chris Dillon when you vote!
We were the only organization to file an Amicus Brief on behalf of Berger, Moore, and North Carolina Voters. If you're interested in reading the Amicus Brief that was filed in the NCAAP v. Berger Moore NC Voter ID case, click here.
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