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Voter ID, tax cap amendments case heading to three-judge panel
Publisher's Note: This post appears here courtesy of the Carolina Journal. The author of this post is CJ Staff.
A lawsuit challenging two 2018 amendments to the North Carolina Constitution is heading to a three-judge panel. One amendment places a photo voter identification requirement into the constitution. The other lowers an existing cap on state income tax rates.
Wake County Superior Court Judge Graham Shirley issued the transfer order Wednesday. Republican state legislative leaders had requested the shift from a single judge to a three-judge panel.
Shirley agreed with legislative leaders that state law required the transfer.
"The Supreme Court's analysis clearly reveals that Plaintiffs' claims, which are collateral attacks on the Amendments themselves, are also direct attacks on the Sessions Laws and thus constitute facial challenges to acts of the General Assembly which initiated the amendment process at issue," Shirley wrote. "As such, N.C. Gen. Stat. § 1-267.1 vests exclusive subject matter jurisdiction in a three-judge panel of the Superior Court of Wake County, as organized pursuant to N.C. Gen. Stat. §1-267.1(b2)."
The case returned to Wake County Superior Court after a 4-3 ruling in August 2022 from the NC Supreme Court. In a party-line vote, the court's then-Democratic majority determined that the amendments could be tossed out because a "gerrymandered" legislature had placed them on the ballot.
Plaintiffs led by the North Carolina State Conference of the NAACP labeled the Republican-led General Assembly a "usurper." Shirley's order referred to the plaintiffs' argument as the "Legislative Usurper Claim."
High court Democrats endorsed much of the plaintiffs' argument but left the final decision about the amendments' fate in the hands of the Wake Superior Court.
Eight months later, after the state Supreme Court had shifted to a 5-2 Republican majority, the new court upheld the state's voter ID law. Lawmakers had approved the law in 2018, just weeks after voters endorsed the ID constitutional amendment.
That April state Supreme Court decision prompted the North Carolina State Board of Elections to prepare for implementing the voter ID requirement. Elections officials will request ID from voters during this year's municipal elections. The case involving a dispute over constitutional amendments will not affect this year's voter ID requirement.
Based on a complaint led by the NC chapter of the NAACP, Wake County Superior Court Judge Bryan Collins rejected both constitutional amendments in February 2019. The NC Court of Appeals later reversed Collins' ruling. The 4-3 Democrat-led Supreme Court's August 2022 decision reversed the Appeals Court's decision.
"The issue is whether legislators elected from unconstitutionally racially gerrymandered districts possess unreviewable authority to initiate the process of changing the North Carolina Constitution, including in ways that would allow those same legislators to entrench their own power, insulate themselves from political accountability, or discriminate against the same racial group who were excluded from the democratic process by the unconstitutionally racially gerrymandered districts," wrote Justice Anita Earls for the Democratic majority.
"We conclude that article I, sections 2 and 3 of the North Carolina Constitution impose limits on these legislators' authority to initiate the process of amending the constitution under these circumstances," Earls added. "Nonetheless, we also conclude that the trial court's order in this case invalidating the two challenged amendments swept too broadly."
Republican justices objected. "[T]he majority nullifies the will of the people and precludes governance by the majority," according to dissenters.
"At issue today is not what our constitution says. The people of North Carolina settled that question when they amended the constitution to include the Voter ID and Tax Cap Amendments," Justice Phil Berger Jr. wrote in dissent. "These amendments were placed on the November 2018 ballot by the constitutionally required three-fifths majority in the legislature. On November 6, 2018, the citizens of North Carolina voted overwhelmingly to approve the North Carolina Voter ID Amendment and the North Carolina Income Tax Cap Amendment. More than 2,000,000 people, or 55.49% of voters, voted in favor of Voter ID, while the Tax Cap Amendment was approved by more than 57% of North Carolina's voters."
"Instead, the majority engages in an inquiry that is judicially forbidden - what should our constitution say? This question is designated solely to the people and the legislature," Berger added. "The majority concedes that constitutional procedures were followed, yet they invalidate more than 4.1 million votes and disenfranchise more than 55% of North Carolina's electorate."
The John Locke Foundation's then-CEO, Amy Cooke, also criticized the 4-3 decision in August 2022.
"The 'Usurper Four' Democrat majority has gone scorched earth on the state constitution and the will of millions of North Carolina voters," Cooke said in a prepared statement. "This decision, crafted by notorious progressive idealogue Anita Earls, is designed to appease the Democrats' far-left activist base - a small but well-funded base that openly rejects the very popular voter ID law and taxpayer protections. These four justices - Anita Earls, Sam Ervin, Michael Morgan, and Robin Hudson - are guilty of voter suppression."
Hudson retired from the court when her term expired last year. Voters ousted Ervin in the 2022 election.
The voter ID amendment has generated more interest than the tax cap amendment. North Carolina's income tax rate falls far below either the old 10% cap or the 7% cap tied to the amendment.
Current state law calls for the rate to fall from 4.99% to 4.75% in 2023. The rate will continue to fall in the years ahead. With no additional changes, the state income tax will dip to 3.99% by 2027. Ongoing state budget negotiations involve discussions about reducing the rate as low as 2.49%.
The amendments case, titled NC NAACP v. Moore, was the subject of Season One of the John Locke Foundation's "Extreme Injustice" podcast. The case is documented at ExtremeInjustice.com.
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A lawsuit challenging two 2018 amendments to the North Carolina Constitution is heading to a three-judge panel. One amendment places a photo voter identification requirement into the constitution. The other lowers an existing cap on state income tax rates.
Wake County Superior Court Judge Graham Shirley issued the transfer order Wednesday. Republican state legislative leaders had requested the shift from a single judge to a three-judge panel.
Shirley agreed with legislative leaders that state law required the transfer.
"The Supreme Court's analysis clearly reveals that Plaintiffs' claims, which are collateral attacks on the Amendments themselves, are also direct attacks on the Sessions Laws and thus constitute facial challenges to acts of the General Assembly which initiated the amendment process at issue," Shirley wrote. "As such, N.C. Gen. Stat. § 1-267.1 vests exclusive subject matter jurisdiction in a three-judge panel of the Superior Court of Wake County, as organized pursuant to N.C. Gen. Stat. §1-267.1(b2)."
The case returned to Wake County Superior Court after a 4-3 ruling in August 2022 from the NC Supreme Court. In a party-line vote, the court's then-Democratic majority determined that the amendments could be tossed out because a "gerrymandered" legislature had placed them on the ballot.
Plaintiffs led by the North Carolina State Conference of the NAACP labeled the Republican-led General Assembly a "usurper." Shirley's order referred to the plaintiffs' argument as the "Legislative Usurper Claim."
High court Democrats endorsed much of the plaintiffs' argument but left the final decision about the amendments' fate in the hands of the Wake Superior Court.
Eight months later, after the state Supreme Court had shifted to a 5-2 Republican majority, the new court upheld the state's voter ID law. Lawmakers had approved the law in 2018, just weeks after voters endorsed the ID constitutional amendment.
That April state Supreme Court decision prompted the North Carolina State Board of Elections to prepare for implementing the voter ID requirement. Elections officials will request ID from voters during this year's municipal elections. The case involving a dispute over constitutional amendments will not affect this year's voter ID requirement.
Based on a complaint led by the NC chapter of the NAACP, Wake County Superior Court Judge Bryan Collins rejected both constitutional amendments in February 2019. The NC Court of Appeals later reversed Collins' ruling. The 4-3 Democrat-led Supreme Court's August 2022 decision reversed the Appeals Court's decision.
"The issue is whether legislators elected from unconstitutionally racially gerrymandered districts possess unreviewable authority to initiate the process of changing the North Carolina Constitution, including in ways that would allow those same legislators to entrench their own power, insulate themselves from political accountability, or discriminate against the same racial group who were excluded from the democratic process by the unconstitutionally racially gerrymandered districts," wrote Justice Anita Earls for the Democratic majority.
"We conclude that article I, sections 2 and 3 of the North Carolina Constitution impose limits on these legislators' authority to initiate the process of amending the constitution under these circumstances," Earls added. "Nonetheless, we also conclude that the trial court's order in this case invalidating the two challenged amendments swept too broadly."
Republican justices objected. "[T]he majority nullifies the will of the people and precludes governance by the majority," according to dissenters.
"At issue today is not what our constitution says. The people of North Carolina settled that question when they amended the constitution to include the Voter ID and Tax Cap Amendments," Justice Phil Berger Jr. wrote in dissent. "These amendments were placed on the November 2018 ballot by the constitutionally required three-fifths majority in the legislature. On November 6, 2018, the citizens of North Carolina voted overwhelmingly to approve the North Carolina Voter ID Amendment and the North Carolina Income Tax Cap Amendment. More than 2,000,000 people, or 55.49% of voters, voted in favor of Voter ID, while the Tax Cap Amendment was approved by more than 57% of North Carolina's voters."
"Instead, the majority engages in an inquiry that is judicially forbidden - what should our constitution say? This question is designated solely to the people and the legislature," Berger added. "The majority concedes that constitutional procedures were followed, yet they invalidate more than 4.1 million votes and disenfranchise more than 55% of North Carolina's electorate."
The John Locke Foundation's then-CEO, Amy Cooke, also criticized the 4-3 decision in August 2022.
"The 'Usurper Four' Democrat majority has gone scorched earth on the state constitution and the will of millions of North Carolina voters," Cooke said in a prepared statement. "This decision, crafted by notorious progressive idealogue Anita Earls, is designed to appease the Democrats' far-left activist base - a small but well-funded base that openly rejects the very popular voter ID law and taxpayer protections. These four justices - Anita Earls, Sam Ervin, Michael Morgan, and Robin Hudson - are guilty of voter suppression."
Hudson retired from the court when her term expired last year. Voters ousted Ervin in the 2022 election.
The voter ID amendment has generated more interest than the tax cap amendment. North Carolina's income tax rate falls far below either the old 10% cap or the 7% cap tied to the amendment.
Current state law calls for the rate to fall from 4.99% to 4.75% in 2023. The rate will continue to fall in the years ahead. With no additional changes, the state income tax will dip to 3.99% by 2027. Ongoing state budget negotiations involve discussions about reducing the rate as low as 2.49%.
The amendments case, titled NC NAACP v. Moore, was the subject of Season One of the John Locke Foundation's "Extreme Injustice" podcast. The case is documented at ExtremeInjustice.com.
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