State Supreme Court debates future of voter ID, tax cap amendments

By Mitch Kokai, Carolina Journal

The fate of two approved amendments to North Carolina's Constitution now sits in the hands of the state Supreme Court. The court spent an hour Monday morning questioning lawyers who argued for and against the amendments.

One amendment would enshrine a voter identification requirement into the state's governing document. The other would lower the state's existing cap on the income tax rate.

Voters approved each amendment in 2018 with at least 55% of the vote. But critics say the amendments never should have reached the ballot. They say an illegally racially gerrymandered General Assembly had no authority to place the amendments before the voters.

"Where is it most important that the court step in and protect our democracy?" asked Kym Hunter, representing the N.C. NAACP. That group is challenging both amendments in the lawsuit N.C. NAACP v. Moore. "A constitutional amendment is just so clearly distinct."

"It is there to protect fundamental rights, to set the fundamental laws of our state," Hunter added. "Once it is in place, unlike regular legislation, it can't be declared unconstitutional under state law."

Hunter argued for the Supreme Court to strike down both amendments. On the other side of the argument, attorney Martin Warf called that possible outcome "unprecedented and wrong."

"The General Assembly never lost its authority to act, and its acts are not subject to an institutional attack," said Warf, representing legislative leaders in the case. "Whether the General Assembly has popular sovereignty is a political question — one that courts abstain from resolving."

Six of the seven justices peppered Hunter and Warf with questions. Chief Justice Paul Newby, a Republican, wondered why the court should throw out amendments approved in a statewide popular vote.

"Why is it inappropriate to say that the will of the people was determined at the ballot box?" Newby asked Hunter. "In fact, six amendments were proposed. People rejected two and adopted four. Why can't we assume that the will of the people has been decided by the ballot box?"

Justice Anita Earls, a Democrat, pointed to the original trial court's ruling against the amendments. She emphasized the court's findings that the two challenged amendments could hurt black voters.

"Don't those findings of fact relate to the question of whether or not a General Assembly that was elected from districts that were found to be intentionally racially discriminatory against black voters should be able to pass constitutional amendments that also discriminate against black voters?"

Plaintiffs in the case limit their attack to two constitutional amendments. Justice Phil Berger, a Republican, asked why legal challenges against the 2018 General Assembly would end there.

"I'm trying to figure out where the law goes if we make your distinction," Berger said to Hunter, the plaintiff's lawyer. He pointed to criminal laws passed by the same General Assembly. "Would not a criminal defense attorney be engaged in malpractice if he didn't advance an argument that the legislation for which his client was being tried fell into the same category that you're arguing today?"

Questions from Justice Michael Morgan, a Democrat, appeared to accept a distinction between general laws and constitutional amendments. He asked the legislative defendants' attorney about the impact of the federal courts ruling that the General Assembly's election maps were invalid.

"Doesn't that somehow important a concern as to the actions of doing something as extreme as constitutional amendments being placed on the ballot?" Morgan asked.

All seven justices will decide the case. Attempts to remove multiple justices helped lead to months of debate and argument Carolina Journal has reported at ExtremeInjustice.com.

The outcome of that discussion was a decision that each justice will make the ultimate decision about whether to take part in a particular case. The rest of the court cannot vote to remove a justice from a case against his or her will.

Democrats outnumber Republicans, 4-3, on the state's highest court. The same 4-3 Democratic majority recently struck down new election maps drawn for the 2022 elections.