North Carolina Supreme Court attacks democracy, in challenge to state constitutional provisions

North Carolina Supreme Court attacks democracy, in challenge to state constitutional provisions

The North Carolina’s Democrat-controlled Supreme Court just did something radical and unprecedented. Voting along party lines, it usurped the power to overturn provisions of its own state constitution, based on the composition of the state legislature. It ruled that progressive plaintiffs could challenge two constitutional provisions adopted by voters — one limiting income taxes, and the other requiring voter ID — just because the state legislature that allowed them to be put up for a vote was elected in districts some of which were gerrymandered.

Never mind that voters approved these constitutional provisions by wide margins. They weren’t forced on the public by legislators — the voters willingly adopted them, with even many Democrats voting for them. No state supreme court has every done anything like this before, indeed, no federal or appellate court ever has, either. As Professor Keith Whittington of Princeton University notes, the North Carolina Supreme Court’s decision is “extraordinary” in its aggressiveness.

Even if gerrymandering undermines the legitimacy of laws passed by the legislature, it logically has no relevance to provisions adopted by voters. The people of North Carolina ratified these constitutional provisions by voting for them, regardless of who came up with them. The North Carolina Supreme Court plainly got it wrong in its partisan, 4-to-3 decision in North Carolina Conference of the NAACP v. Moore.

Even some Democrats were amazed at the staggering implications of the court’s decision. As one put it, “North Carolina has basically ALWAYS been gerrymandered…Does this mean the court is going to go back through the entire history of the state and invalidate every amendment and every bill that ‘shouldn’t’ have been passed in its opinion?”

The North Carolina Supreme Court’s decision was 4-to-3, with the three Republican justices dissenting. As Professor Whittington notes, “The three justices in dissent practically begged the U.S. Supreme Court to overturn this case as a potential violation of the republican guarantee clause of the U.S. Constitution.”

The fact that some of North Carolina’s districts were gerrymandered was no reason to overturn state laws, much less constitutional provisions approved by a non-gerrymandered public. Some of neighboring Virginia’s legislative districts were found to have been racially gerrymandered by a federal court in 2018, but all laws passed by the Virginia legislature have been treated by the courts as validly enacted, including during the 8-year period when legislators were elected from those gerrymandered districts.

Similarly, courts have never overturned laws merely because they were passed by state legislatures whose composition was later ruled unconstitutional by the Supreme Court. Many of America’s state legislatures used to have state senates where senators represented particular counties (similar to U.S. Senators representing particular states). Those legislatures were later deemed to be unconstitutionally apportioned under the Supreme Court’s 1964 ruling that state senate districts must have equal populations, rather than represent specific geographic units or subdivisions.

Many state senates had to be redistricted as a result, and were deemed to have been malapportioned for generations. But none of the laws passed by state legislatures during those generations were considered unconstitutional as a result of their gerrymandered or malapportioned status.

Letting laws or constitutional provisions be challenged because of the composition of a past legislature would lead to chaos. As even the North Carolina Supreme Court conceded, the courts “long ago concluded that such a rule would lead to chaos, undermine the orderly administration of government, and unfairly burden individuals who reasonably relied on the acts of apparent officeholders.”

For example, in striking down a state legislature’s composition because legislative districts did not have equal or similar populations, Justice Douglas observed in his concurring opinion in Baker v. Carr that “a legislature, though elected under an unfair apportionment scheme, is nonetheless a legislature empowered to act.”

But the North Carolina Supreme Court’s four-justice Democratic majority made up vague exceptions to this universal, longstanding principle to enable a constitutional challenge to the two constitutional provisions that progressive groups hated — one limiting taxes, the other requiring voter ID to vote. For example, it ruled that a constitutional provision must be struck down under its ruling if it reduces “democratic accountability,” or is exclusionary or discriminatory. It remanded the case to the trial court to strike down the challenged constitutional provisions “if any of these factors are present.”

“In this case, the trial court did enter some findings of fact that are relevant to these factors,” wrote the liberal majority. “Specifically, in addressing NC NAACP’s standing to challenge the two amendments, the trial court found as follows

Members of the NC NAACP, who include African-American and Latino voters in North Carolina, and the NAACP itself are directly harmed by the proposed Voter ID constitutional amendment. Members will be effectively denied the right to vote or otherwise deprived of meaningful access to the political process as a result of the proposed Voter ID requirement. The proposed Voter ID amendment will also impose costs and substantial and undue burdens on the right to vote for those and other

. . . .

33. The income tax cap constitutional amendment harms the NC NAACP, its members, and the communities it serves, and its ability to advocate for its priority issues. Because the amendment places a flat, artificial limit on income taxes, it prohibits the state from establishing graduated tax rates on higher-income taxpayers and, over time, will act as a tax cut only for the wealthy. This tends
to favor white households and disadvantage people of color, reinforcing the accumulation of wealth for white taxpayers and undermining the financing of public structures that have the potential to benefit non-wealthy people, including people of color and the poor. For example, historically in North Carolina, decreased revenue produced by income tax cuts in the state has resulted in significant spending cuts that disproportionately hurt public schools, eliminated or significantly reduced funding for communities of color, and otherwise undermined economic opportunity for the non-wealth

The progressive challengers will rely on this language to try to strike down the income-tax cap, in order to raise taxes on North Carolina citizens. They will also rely on this language to challenge the Voter ID constitutional amendment.

The Voter ID amendment is likely to be struck down, even though voters of all races support voter id. As Professor Whittington notes, “Although the case was remanded back to the trial court for further proceedings, the clear implication [of the North Carolina Supreme Court’s decision] is that the state constitutional amendment that had been proposed by that legislature and ratified by the voters that had empowered the legislature to adopt a voter ID law is invalid.” Never mind that 80% of Americans support voter ID, and even 62% of Democrats do, according to Forbes.

Hans Bader

Hans Bader

Hans Bader practices law in Washington, D.C. After studying economics and history at the University of Virginia and law at Harvard, he practiced civil-rights, international-trade, and constitutional law. He also once worked in the Education Department. Hans writes for and has appeared on C-SPAN’s “Washington Journal.” Contact him at


For your convenience, you may leave commments below using Disqus. If Disqus is not appearing for you, please disable AdBlock to leave a comment.