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Wednesday December 7th

NC court limits power of racially gerrymandered legislature to amend state constitution

<p>Graphic by Carson Elm-Picard.</p>
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Graphic by Carson Elm-Picard.

A racially gerrymandered legislature cannot propose amendments to the North Carolina Constitution, according to an Aug. 19 ruling from the N.C. Supreme Court.

The case, NC NAACP v. Moore, was decided by a 4-3 vote along party lines. The decision stems from a U.S. District Court decision in 2016, which said that North Carolina’s state district maps were illegally racially gerrymandered. 

In June 2018 following the initial decision, the Republican supermajority in the N.C. General Assembly placed six constitutional amendments on the ballot, and two passed a state-wide referendum — a requirement for photo identification to vote and a cap on the state's income tax rate at 7 percent.

The voter ID amendment was struck down soon after it was passed in a separate decision. The court said the provisions "target African Americans with almost surgical precision."

Soon after these amendments were voted on by the General Assembly, the North Carolina National Association for the Advancement of Colored People sued, attempting to limit the power of a racially gerrymandered legislature to propose amendments. 

A lower court judge eventually struck the two amendments down in 2019 but they were reinstated by the N.C. Court of Appeals, prompting the NAACP to appeal the case again in 2020.

This instance of gerrymandering — the practice of packing a group of voters into a single district or diluting a group of voters by cracking them into several districts — originates from the redistricting process led by Republicans in 2011. 

Twenty-eight districts across the state drawn during that process were ruled unconstitutional because race was "the predominant factor motivating the drawing of all challenged districts," with little evidence that such usage was "reasonably necessary to further a compelling state interest."

N.C. House Speaker Tim Moore, R-Cleveland, is named a defendant in the 2022 case. In a statement, Moore said the N.C. Supreme Court's decision was "subverting the will of North Carolina voters" by overruling amendments North Carolinians voted for.

Irving Joyner, who provides legal counsel for the state's NAACP and was a lawyer in the case, said Moore's statement was hypocritical.

"Creating racially gerrymandered political districts subverts the will of the people," Joyner said. "That was the error, that was the problem, that was the constitutional qualm that we were dealing with. Those acts occurred by the General Assembly long before there was the NAACP v. Moore case."

Moore did not respond to The Daily Tar Heel's request for comment.

Jack Boger, a former UNC Law School dean, co-authored a brief in support of the NAACP with several other N.C. constitutional law professors in 2019.

Boger said one of the main issues was that the General Assembly attempted to amend the state constitution to include voter ID — a practice deemed racially discriminatory by a federal court — even though it had been illegally elected. 

"Once you've been caught in racially discriminatory districting, before you redistrict, you say, 'let's put in voter ID and that will entrench a disadvantage to African American voters,'" he said.

Republicans could not maintain their supermajority in 2018 in the General Assembly after they were required to re-draw districts for that year's elections.

Boger said the failure to keep a supermajority is evidence of gerrymandering impacting North Carolinian voters.

"They couldn't get a supermajority once they had reframed the legislature, and they could before, so that's one acid test," Boger said.

The NAACP asked two Republican justices on the state Supreme Court — Tamara Barringer and Philip Berger, Jr. — to recuse themselves from the case in July 2021 due to potential conflicts of interest. Barringer was elected to the General Assembly in 2012 under the gerrymandered map, and Berger is the son of N.C. Senate President Pro Tempore Phil Berger, a named defendant in the case.

A lawyer for the NAACP, Kym Meyer, said the case's oral arguments were delayed because of the request for recusal, for which the legal team had to submit more paperwork.

Neither justice stepped away from the case, and both dissented.

Meyer said she was frustrated with the length of time the case took from filing to N.C. Supreme Court decision — a timeframe lasting from August 2018 to August 2022.

"There have just been a lot of twists and turns along the way," Meyer said. "It's obviously a case that really strikes to the heart of, what does our democracy look like, and who has power, and how can that power be used, and so it's been a struggle at every moment."

Some people on social media have suggested the ruling should apply to all laws passed by the General Assembly, Meyer said.

She added, though, that both the lawsuit and the state Supreme Court's decision are limited to constitutional amendments.

"All of our arguments have been careful to limit the argument to constitutional amendments," Meyer said. "But I think it does at least start the conversation about what power should a legislature have in this space, and hopefully would force a legislature to think more carefully about gerrymandering if it knows its power is not going to be unlimited."

CORRECTION: An earlier version of this story said the N.C. National Association for the Advancement of Colored People filed their lawsuit before the amendments to the state's constitution mentioned in the story were put on the ballot. The organization filed their suit before this, doing so after the N.C. General Assembly voted on them. The Daily Tar Heel sincerely apologizes for this error.

@ethanehorton1

@DTHCityState | city@dailytarheel.com

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