By Mitch Kokai, Carolina Journal

A lawsuit challenging N.C. constitutional amendments for voter identification and a lower state income tax cap has been removed from today's calendar of state Supreme Court oral arguments.

As recently as Monday, the court's website listed the case NAACP v. Moore as the first item on the docket for the court's consideration today. As of this morning, the list has been revised. The constitutional amendments case no longer appears on the calendar today or Wednesday, Sept. 1.

The last court filings in the case involved a motion to disqualify two justices from considering the case. Lawyers for the NAACP want to remove the court's two newest justices — Republicans Tamara Barringer and Phil Berger Jr.

Barringer was a state senator when the General Assembly placed the challenged constitutional amendments on the ballot. She voted in favor of the amendments. The NAACP argues that those facts should help disqualify her from considering the case.

Plaintiffs target Berger because his father — Senate leader Phil Berger Sr. — is a named defendant in the lawsuit and "thus Justice Berger is within a third-degree familial relationship with a defendant."

Lawyers defending the constitutional amendments filed a brief Aug. 2 challenging the NAACP's arguments.

N.C. voters decided in 2018 that the state should require photo identification for voters in future elections. They also decided to lower a cap on state income taxes. The case will determine whether judges can overrule those voters.

Plaintiffs in the case want to throw out the results of statewide votes on two constitutional amendments in 2018. One required voter ID. The other lowered an existing constitutional cap on state income tax rates from 10% to 7%. Both secured clear majority support among voters.

But opponents argue that voters never should have had the opportunity to address either amendment. The critics say a gerrymandered General Assembly had no right to place those amendments on the ballot.

Wake County Superior Court Judge Bryan Collins accepted the critics' argument in February 2019, three months after voters approved the amendments. But the N.C. Court of Appeals reversed course, ruling 2-1 in September 2020 that the General Assembly retained authority to vote on constitutional amendments, regardless of any court rulings related to election maps.

The two challenged amendments were part of a package of six proposed changes to the N.C. Constitution on the ballot in 2018. Voters also approved measures to add more victims' rights to the constitution and to enshrine state hunting and fishing rights. The same voters rejected amendments to change state election administration and the judicial appointment process.

The NAACP's lawsuit does not challenge either of the other two amendments that won voters' approval. That's despite the fact that the same General Assembly placed those amendments on the same election ballot.

Some 2,094,924 people voted to lower North Carolina’s state constitutional cap on income taxes. With 57% support in the statewide referendum, tax cap proponents beat opponents by more than 537,000 votes.

The voter ID vote was closer. But the 2,049,121 “yes” votes amounted to 55% of the total. Voter ID advocates beat critics by more than 405,000 votes.

An election with no presidential, gubernatorial, or U.S. Senate race still attracted more than 3.7 million people, roughly 53% of all registered N.C. voters.

Both of the challenged amendments secured more "yes" votes than any candidate running for office in 2018. The highest individual vote-getter, Democratic Appeals Court Judge John Arrowood, won re-election with 1,855,728 votes. That was 193,393 fewer votes than voter ID.

One of the Supreme Court justices hearing NAACP v. Moore today, Anita Earls, won her seat in 2018 with less than 50% of the vote in a three-way race. Her 1,812,751 votes fell 236,370 votes short of support for voter ID.

Now Earls and her colleagues will decide whether to support plaintiffs' arguments. The lawsuit contends Republicans leading the General Assembly in 2018 had "usurped" power through rigged election maps.

It's an argument that fell flat last year at the Appeals Court.

“We do not agree that our ‘General Assembly lost its claim to popular sovereignty,’” Judge Chris Dillon wrote in the court's primary opinion.

“If there was a loss of popular sovereignty by our General Assembly, then all the laws passed by that body would be subject to attack, thus creating chaos and confusion,” Dillon wrote. “One might argue that our current state constitution, adopted in 1971, was void, as it was proposed by a General Assembly that had only one African-American member due to the impact of gerrymandering and voter suppression measures.”

Dillon chastised Collins, the trial judge, for attempting to “blue pencil” powers of the legislative branch. Collins appeared to pick and choose which of the General Assembly's actions to label legitimate or illegitimate.

“[I]t might make more sense that we blue pencil our General Assembly’s power to pass regular bills,” Dillon explained. “The risk of a bill becoming law is much greater, as those can become law without the consent of anyone else, through veto-override. A bill proposing an amendment, however, cannot become law without the approval of the people, the source of popular sovereignty.”

Writing separately from Dillon, Judge Donna Stroud took aim at the NAACP’s claim that Republican lawmakers exercised illegitimate authority. Stroud noted that the nation's highest court chose not to make that kind of ruling.

In a redistricting case, the U.S. Supreme Court that ruled against N.C. legislators “declined to conclude that the members of the General Assembly elected in unconstitutionally gerrymandered districts are usurpers.” Instead, the nation’s highest court “ordered the same exact General Assembly” to create new election maps, “with no limitations on the General Assembly’s authority to act.”

Stroud echoed Dillon's emphasis on the voters' important role in 2018. “Since passing a constitutional amendment requires a majority of the voters of North Carolina in a statewide election unaffected by illegal districts, plaintiff’s argument is actually weaker for a constitutional amendment than for other ordinary legislation,” she wrote.

Both Dillon and Stroud rejected the NAACP’s arguments, but Judge Reuben Young dissented. Dillon and Stroud are Republicans, Young a Democrat.

“If an unlawfully formed legislature could indeed amend the Constitution, it could do so to grant itself the veneer of legitimacy,” Young wrote. “It could seek, by offering amendments for public approval, to ratify and make lawful its own unlawful existence. Such an act would necessarily be abhorrent to all principles of democracy.”

There's no word on when oral arguments will be rescheduled.