This post appears here courtesy of the Carolina Journal
In a split 2-1 ruling
, the N.C. Court of Appeals has reinstated voter-approved state constitutional amendments to require voter ID and to cap the state's income tax rate.
The decision overturns a trial court's February 2019 decision to throw out the amendments approved by voters in the 2018 general election. The judge in that case had ruled that an illegally gerrymandered legislature had no power to place constitutional amendments on the ballot.
All three Appeals Court judges wrote separately in response to that ruling. "We do not agree that our 'General Assembly lost its claim to popular sovereignty' based on the reasoning that 'under the illegal racial gerrymandering, a large swath of North Carolina citizens lack a constitutionally adequate voice in the State's legislature,'" wrote Judge Chris Dillon in the main opinion.
"If there was a loss of popular sovereignty by our General Assembly, then all the laws passed by that body would be subject to attack, thus creating chaos and confusion. One might argue that our current state constitution, adopted in 1971, was void, as it was proposed by a General Assembly that had only one African American member due to the impact of gerrymandering and voter suppression measures."
Dillon rejects trial Judge Bryan Collins' decision to reject the two constitutional amendments while allowing other legislative acts to stand. "We see nothing in the language of our state constitution empowering our branch to 'blue pencil' the powers of our legislative branch,"
Dillon added. "Indeed, our state constitution empowers our General Assembly to pass many types of bills. ..."
"If we had such power to engage in 'blue penciling' the legislative powers contained in Article II, it might make more sense that we blue pencil our General Assembly's power to pass regular bills,"
Dillon wrote. "The risk of a bill becoming law is much greater, as those can become law without the consent of anyone else, through veto-override. A bill proposing an amendment, however, cannot become law without the approval of the people, the source of popular sovereignty."
Judge Donna Stroud agreed with Dillon's result, but she wrote a separate concurring opinion "because I would reach the same result on a more limited basis."
Stroud rejected the trial court's conclusion that the federal Covington v. North Carolina gerrymandering case had rendered the actions of the 2018 N.C. General Assembly invalid.
"To the contrary, Covington ultimately declined to conclude that the members of the General Assembly elected in unconstitutionally gerrymandered districts are usurpers but instead ordered the same exact General Assembly the trial court deemed without de jure or de facto authority to create new districts with no limitations on the General Assembly's authority to act,"
Stroud wrote. "There is no North Carolina law to support the trial court's legal conclusions."
Like Dillon, Stroud notes the role voters played in the process of enacting the two amendments. The tax cap amendment passed with 57% of the vote and a 538,000-vote victory margin. More than 55% of voters supported an ID requirement at the polls, giving that measure a 405,000-vote victory margin.
"Since passing a constitutional amendment requires a majority of the voters of North Carolina in a statewide election unaffected by illegal districts, plaintiff's argument is actually weaker for a constitutional amendment than for other ordinary legislation,"
Stroud wrote. "Ironically, despite the approval of the challenged amendments by large majorities of 'the people of North Carolina,' the trial court held the amendments to be invalid because the 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.'"
"If the General Assembly lacked de jure and de facto authority to pass a bill proposing a constitutional amendment for approval by popular vote, the General Assembly also lacks authority to pass any legislation or budget which must be approved only by a majority vote and which is not subject to popular vote."
In dissent, Judge Reuben Young labels the issue in the case "one vital to our democracy." He would have upheld the trial court's ruling throwing out the two amendments.
"If an unlawfully formed legislature could indeed amend the Constitution, it could do so to grant itself the veneer of legitimacy,"
Young wrote. "It could seek, by offering amendments for public approval, to ratify and make lawful its own unlawful existence. Such an act would necessarily be abhorrent to all principles of democracy."
"[T]he people of this State cannot, by popular vote, approve an unlawful act of the General Assembly,"
Young wrote. "The very provision of our Constitution which mandates review by the voting populace requires, before such a vote can take place, action by 'three-fifths of all the members of each house' of the General Assembly. In other words, the popular vote as to whether to approve an amendment to the Constitution is predicated upon a preceding lawful action by the General Assembly. By necessity, once the legislature became aware that it was unconstitutionally formed, any actions taken to alter our State Constitution were void ab initio; the public vote could not cure that deficiency any more than it could cure any other unlawful action by the General Assembly."