The Philosopher Kings of North Carolina

The militant North Carolina Supreme Court seems to believe that is the law itself. One of his questionable rulings on partisan gerrymande...


The militant North Carolina Supreme Court seems to believe that is the law itself. One of his questionable rulings on partisan gerrymandering is awaiting review this fall by the US Supreme Court. But this month, state judges have outdone themselves, decision 4-3 that illegal gerrymandering could also be a legal excuse to strike down two constitutional provisions that voters strongly endorsed.

When North Carolina redrew the state’s legislative districts after the 2010 census, it was still under the “preclearance” regime created by the Voting Rights Act of 1965, meaning the new map has been reviewed and approved by the US Department of Justice. But in 2015, a group of residents sued, and a federal court ultimately found 28 majority black districts for the state House and Senate to be unconstitutionally Gerrymanders by race.

For a time, however, these districts remained in effect, during which time the legislature proposed two constitutional amendments, one mandating voter ID and the other capping state income tax at 7%. Both were ratified by voters in the 2018 election, and neither result was close. The identity of the voter was exceeded by 11 points and the tax ceiling by 15 points. Four years later, the Supreme Court of the State of NAACP vs. Moore actually says that the amendments could now be thrown out like the fruit of a poisoned tree.

In the majority opinion account, written by Judge Anita Earls, the NAACP argued that as soon as the judiciary struck down Gerrymander, those 28 lawmakers “became usurpers.” The majority do not go that far, citing the legal doctrine of “de facto officers”, whose work remains valid despite some flaws in their elevation. This is to prevent a decision invalidating a gerrymander from destroying a state budget or a quorum. “It would be intolerable”, says the majority, “to maintain that the people of North Carolina should be left without any body capable of exercising legislative authority”.

So far quite reasonable. But then the court invents a high standard for North Carolina’s constitutional amendments, saying de facto officers may not have the authority to propose them in certain circumstances. To that end, the Majority designs a stunning multifactorial test, beginning with determining whether lawmakers in gerrymandered districts were “numerous enough to be decisive.”

If so, then judges must consider whether the proposed amendment will “immunize legislators from democratic accountability” or “perpetuate the continued exclusion of a class of voters from the political process” or “intentionally discriminate against a particular class of citizens.” who have also been victims of discrimination”. in the political process leading to the election of legislators. What source of legal invention does this derive from?

The majority remands the case for reconsideration, but notes that the trial court has already made related findings of fact. NAACP members, the court said, “will effectively be denied the right to vote” by voter ID. The tax cap “imposes a flat and artificial limit on income tax”, which “prohibits the state from setting progressive tax rates” and “tends to favor white households and disadvantage people of color”. These are MSNBC’s progressive political arguments, not legal judgments.

Judge Philip Berger Jr.’s dissent is ruthless. He says the state constitution clearly allows the Legislature to propose amendments, period, and that the majority “flagrantly violates the separation of powers.” The new multifactor test will require judges “to examine the substance of every legislative action and weigh the policy implications”.

And where else could the same logic be extended? “An ill-distributed legislature ratified the Twentieth Amendment on January 5, 1933,” he says. “Based on the reasoning of the majority here, is this ratification vote voidable?”

Dissent ends with a question to a higher judicial authority. “When,” Judge Berger asks, “does judicial activism undermine our Republican form of government guaranteed by Article IV, Section 4 of the United States Constitution, so that the people are no longer the source of power?”

An interesting request. As North Carolina’s Four Judicial Philosopher Kings go, the U.S. Supreme Court might want to find an opportunity to answer it soon.

Wonder Land: The first Trump presidency began with the tale of Russian collusion. Now we have its offspring – the Classified Documents narrative, which, like its predecessor, is heavy on innuendo and light on fact. Images: Shutterstock/AFP/Getty Images Composition: Mark Kelly

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