Sunday, August 21, 2022

What Happened at the NC Supreme Court RE the Voter ID Amendment?


Justice Anita Earls

No, the North Carolina Supreme Court did not overturn the voter ID amendment to the state's constitution (which has never been enforced anyway, because of legal challenges). The Court, voting 4-3 along partisan lines, suspended a final decision on the legality of not one but two amendments -- voter ID and an income tax cap -- and sent the case back to the original Wake Superior Court judge who heard it (and who had found the voter ID amendment was unconstitutional because some 28 legislators who wrote it and passed it had been racially gerrymandered into their districts, which were guaranteed to elect them and then to keep them in Raleigh 'til the ending of time). 

The original Superior Court judge has now been ordered to find more facts:

If the answer to any of these questions is “yes,” the amendment should be invalidated:

Does the voter ID amendment immunize legislators from democratic accountability?

Does the voter ID amendment perpetuate the ongoing exclusion of a category of voters from the political process?

Does the voter ID amendment intentionally discriminate against a particular category of citizens who were also discriminated against in the political process leading to the legislators’ election (redistricting of House and Senate seats)?

If the answer to all the questions is “no,” or if there were not enough legislators elected in unconstitutionally gerrymandered districts to make a difference in getting proposed changes to voters, the amendment must stand. (Lynn Bonner)

In other words, the Democratic majority on the NC Supreme Court, led by Associate Justice Anita Earls, is perfectly prepared to make a new, shattering precedent.

According to law professor Rick Pildes, the Court held that the House and Senate legislators in office due to racial gerrymandering (already identified by district in the Federal law suit against voter ID that went to the 4th Circuit Court of Appeals in 2020), they absolutely can enact legislation, anything they want to dream up, any repugnant insult to basic human decency. They can also propose constitutional amendments (as the Republican super-majority did in 2018, proposing a total of six constitutional amendments). The one thing they cannot do, according to the Court, is propose amendments that earn a "yes" on the three questions above.

Unprecedented Court action? (if the voter ID amendment ends up invalidated by this court, as seems likely), a big Yes. Professor Nick Stepanopoulos, 'nother law school professor: "This [Earls' opinion] is the remedy that redistricting violations have always logically required — but that courts have been too timid, until now, to impose. An unlawfully constituted legislature shouldn’t be able to make law (at least not law that depends on that illegal composition)."

“We now have a North Carolina Supreme Court decision declaring that our legislature does not have unlimited authority to amend the constitution,” Kym Meyer, a lawyer representing the NAACP, said in an interview. “It’s a huge win on that point.”

So, yeah, it's important what came out of the NC Supreme Court this week, but it ain't over. (And the Republicans are going ape-shite. BergerMoore will manage to get the case in front of the conservatives on the US Supreme Court, you watch!)

NOTE: The case is NAACP v. Moore/Berger. You might remember that the NAACP wanted Justice Phil Berger Jr., defendant Phil Berger’s son, and Justice Tamara Barringer, who voted to approve the constitutional amendments when she was a member of the state Senate, to recuse themselves or be disqualified from hearing the case (see "The Berger Dominion"). In the end, all seven justices participated.

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