Politics & Government

A lawsuit arguing NC’s legislature is illegitimate may have far-reaching consequences

Lawyers for Republican legislators and the NAACP went back and forth Thursday at the North Carolina Court of Appeals, arguing over the very legitimacy of the North Carolina General Assembly.

Republicans have retained a majority and sometimes a supermajority at the legislature, in part, through political districts that were later overturned as unconstitutional gerrymandering. So after the legislature voted to put six constitutional amendment proposals on the 2018 ballot — four of which voters then approved and put into the N.C. Constitution — the North Carolina NAACP sued over amendments that would cap the income tax rate and require voter ID.

There have been several lawsuits against the amendments. Democratic Gov. Roy Cooper won a lawsuit just before the election arguing that Republicans were trying to put misleading language on the ballot to describe the amendments. He later lost another challenge to the amendments, as did the NAACP.

But in a separate lawsuit, the NAACP got a high-profile win after the election that surprised many observers. The group and allies argued that the legislature was illegitimate and had no authority to approve the amendments in the first place. And this spring, they won.

Wake County Superior Court judge Bryan Collins, a Democrat, overturned two of the new constitutional amendments. He wrote: “An illegally constituted General Assembly does not represent the people of North Carolina and is therefore not empowered to pass legislation that would amend the state’s constitution.”

Republican lawmakers appealed that ruling, and Thursday they made their case to a panel of three N.C. Court of Appeals judges — two Republicans and a Democrat.

Martin Warf, a lawyer for the lawmakers, argued Thursday that while federal courts have approved many ways of addressing unconstitutional gerrymandering, they have never suggested anyone could do what Collins ordered.

“No court has ever said one of the remedies is striking down all the laws they passed,” Warf said. “... That remedy sounds grossly unproportionate.”

Kym Hunter, a lawyer for the Southern Environmental Law Center which joined the NAACP in the case, said it’s not only an appropriate decision, it’s the only reasonable one.

“To rule for the defendants is to say however gerrymandered a General Assembly is, however egregious, they can do whatever they like to further entrench their power,” Hunter told the judges Thursday. “And that is exactly what they did here. ... They placed six constitutional amendments on the ballot, all aimed at further entrenching their power.”

Their arguments continued on, spanning legal as well as practical concerns.

Warf said the federal judges who struck down districts over racial gerrymandering could have also ordered new elections, if they felt the legislature didn’t truly represent North Carolina, but they didn’t. Hunter said those federal judges did originally order new elections, but later called them off after legal delays pushed it back too far.

Hunter also said the legislature intentionally diluted the voting power of black residents by packing them into a small number of political districts, and therefore couldn’t have claimed to represent all the state’s residents. But one of the judges, Chris Dillon, pressed her on what would happen if that logic was applied more broadly.

The current North Carolina Constitution was largely written in 1971. When the legislature made all those changes, Dillon said, there was only one African American politician in the entire General Assembly: Henry Frye, who would later become the first black chief justice of the N.C. Supreme Court. Dillon asked if that meant the entire constitution is illegitimate because black voters were not well-represented when it was written.

“My concern is that somebody would say that was so egregious” that it has to be struck down, Dillon said.

And he wasn’t the only judge who voiced concerns over what other ramifications a ruling for the NAACP in this case might have. Donna Stroud said she could see many more lawsuits coming, challenging everything the legislature did with a supermajority in recent years — like overriding vetoes, which they have done for recent years’ budgets as well as other controversial laws.

“Obviously our concern is, ‘Is this going to be applied to other cases in the future?’” Stroud said. “We’re going to have very smart lawyers arguing for that.”

Warf encouraged that line of thinking.

“There’s no distinction between (the amendments) and other acts of the General Assembly,” he said. “It would literally affect and impact every act that was passed.”

Hunter pushed back against that, however, saying they are only challenging the amendments — which require a supermajority for the legislature to approve, not a simple majority like other laws. She said that’s why they only challenged the amendments, and not every new law from the last several years.

“We’ve got to balance the fact that, yes, this legislature does not represent our people, with the fact that we do want orderly government,” she said.

The court did not immediately issue a ruling in the case. And regardless of who wins this round at the Court of Appeals, it’s possible that the case could eventually go to the state Supreme Court.

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Will Doran reports on North Carolina politics, with a focus on state employees and agencies. In 2016 he started The News & Observer’s fact-checking partnership, PolitiFact NC, and before that he reported on local governments around the Triangle. Contact him at wdoran@newsobserver.com or (919) 836-2858.