This story originally published online at NC Policy Watch.
North Carolina Republicans’ long desire to impose a photo identification requirement to vote has been threatened by the legislature’s failure in 2011 to draw constitutional election districts.
The Democratic majority on the state Supreme Court ruled last week that constitutional amendments proposed by a legislature with members elected from unconstitutional racially gerrymandered districts aren’t automatically considered valid.
The state NAACP challenged constitutional amendments passed in 2018 requiring photo ID for people voting in person and lowering the personal and corporate income tax caps from 10 percent to 7 percent. They said legislators from unconstitutional districts couldn’t legitimately propose changes to the constitution. The case tied together redistricting and voter ID, issues that are constant subjects of court battles in the state.
Voter ID and the tax cap were two of six amendments legislators put to voters. Voters defeated two of the amendments and approved four, including voter ID and the tax cap.
Republicans have been cutting taxes for the last decade, and income tax rates are not close to those ceilings. The corporate income is currently scheduled to be phased out altogether.
Opponents of photo ID requirements for voting have maintained for years that it discriminates against people who don’t have government-issued photos or the documents required to obtain them, such as low-income voters, older voters, people with disabilities, and people of color.
Though voter impersonation is extremely rare, Republicans maintain that voter ID builds confidence in elections.
Voter ID has been a years-long quest for state Republicans. An old voter ID requirement was in force for the 2016 North Carolina primary. It was part of sweeping elections changes the state adopted in 2013 and which the U.S. Court of Appeals for the Fourth Circuit struck down as unconstitutional. In its ruling, the court said the law targeted African-Americans with “almost surgical precision.”
More court proceedings to come
The challenged voter ID and tax cap amendments will be the subject of more court hearings, and possibly, more appeals before they can be wiped from the constitution.
House Speaker Tim Moore called the ruling “blatant judicial activism” in a statement but didn’t offer clues on how he and Senate leader Phil Berger would respond.
Attorney Michael Crowell, an expert in constitutional law, voting rights, and judicial authority, said lawyers for Republicans could find a way for an appeal to the U.S. Supreme Court.
“It’s a confusing situation at best,” he said.
The majority opinion was careful to say it was an issue of state law and not a federal question, Crowell said. In the Republican justices’ dissent, Justice Phil Berger Jr. (the son of the Senate leader) wrote that the majority opinion violated federal as well as state precedents.
“One could guess that creative lawyers could construct a federal issue to ask the U.S. Supreme Court to review,” Crowell said. Even then, it’s unlikely the U.S. Supreme Court would be interested because it’s not a final decision, Crowell said.
In last week’s ruling, the court sent the case back to Superior Court Judge Bryan Collins, with instructions to determine how the amendments would affect voters. Collins ruled in favor of the NAACP in 2019 and the case landed with the state Supreme Court after a series of appeals.
No matter what Collins decides after the next round of hearings, a state-court appeal will follow, Crowell said.
The Supreme Court told Collins to consider whether the proposed amendments immunize legislators from democratic accountability; perpetuate the ongoing exclusion of a category of voters from the political process, or intentionally discriminate against a particular category of citizens who were also discriminated against in the political process leading to the legislators’ election.
“The appellate court is bound by the findings of fact as long as there’s some evidence of them, but then, the conclusions of law that the trial court draws are reviewable,” said Bob Orr, a former state Supreme Court justice. “The appeals court says yeah, you got it right, no you got it wrong.”
Those questions the Supreme Court told Collins to consider seem more applicable to the voter ID amendment than the tax cap amendment, he said.
“The income tax deal doesn’t seem to fit into any of those, at least to the extent of the practicalities of the second part of the trial judge’s responsibility,” Orr said.
Impact of unconstitutional gerrymandering
The Supreme Court also wants to know whether there were enough legislators elected from unconstitutional districts to have made a difference in getting the amendments onto the ballot.
Collins seemed to answer the question about whether the unconstitutional districts, which led to Republicans holding supermajorities in both the House and the Senate in 2018, made a difference.
The U.S. Supreme Court in 2017 affirmed a lower court ruling that 28 legislative districts were unconstitutional racial gerrymanders. In 2018, a federal court adopted new plans for legislative districts that were drawn by a special master. Correcting defective districts means boundaries of surrounding districts must change. In all, 81 of 120 House districts were redrawn and 36 of 50 Senate districts were redrawn, Collins wrote in his 2019 order.
Proposed constitutional amendments need three-fifths votes in both the House and Senate in order to be placed before voters. Republican supermajorities in 2018 helped get the most controversial constitutional changes to voters. Republicans that year had a 75-45 advantage in the House and a 35-15 advantage in the Senate.
The voter ID amendment passed the House by two votes over the minimum three-fifths and passed the Senate with three votes over the minimum, Collins wrote in 2019.
The tax cap amendment passed by one vote over the minimum requirement in the House and by four votes over the minimum in the Senate.
The 2018 election narrowed the Republican advantage in both chambers. House Republicans won 65 seats to Democrats 55, and Republicans won 29 of 50 Senate seats.
After redistricting and the 2018 elections, Republicans knew they were losing their veto-proof majorities. That December, they passed a voter ID law that is being appealed in both state and federal courts.
Potential fallout debated
Lawyers for Moore and Berger warned of chaos if laws passed by legislators later found to be elected from unconstitutional districts can be overturned.
But Crowell said this may end up being a case that looks tremendously significant at first, but then turn out to not have wide impact.
“It may be that it’s so tied to these unique circumstances—the number of districts found to have been gerrymandered, the racial aspect of the gerrymandering, the nature of the constitutional amendments, the fact that the amendments came at the end of a lame-duck session—all that is unlikely to be repeated,” he said. “While the case may stir people up, it may end up not having that great an effect over time.”
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