N.C. State Conference of the Nat'l Ass'n v. Moore

• Decision Date: 15 September 2020
• Docket Number: No. COA19-384,COA19-384
• Citation: 849 S.E.2d 87
• Parties: NORTH CAROLINA STATE CONFERENCE OF the NATIONAL ASSOCIATION FOR the ADVANCEMENT OF COLORED PEOPLE and Clean Air Carolina, Plaintiffs. v. Tim MOORE, in his official capacity, and Philip Berger, in his official capacity, Defendants.
• Court: North Carolina Court of Appeals

849 S.E.2d 87

NORTH CAROLINA STATE CONFERENCE OF the NATIONAL ASSOCIATION FOR the ADVANCEMENT OF COLORED PEOPLE and Clean Air Carolina, Plaintiffs.

v.Tim MOORE, in his official capacity, and Philip Berger, in his official capacity, Defendants.

No. COA19-384

Court of Appeals of North Carolina.

Filed: September 15, 2020

Southern Environmental Law Center, by Kimberley Hunter and David Neal, and Forward Justice, by Irving Joyner, Durham, and Daryl V. Atkinson, for Plaintiffs.

Nelson Mullins Riley & Scarborough LLP, Raleigh, by D. Martin Warf and Noah H. Huffstetler, III, for Defendants.

DILLON, Judge.

The people reserved for themselves the sole right to amend our state constitution, N.C. CONST. art. I, § 3, but granted to our General Assembly the authority to pass bills proposing amendments for the people's consideration, N.C. CONST. art. XIII, § 4.

Plaintiff¹ commenced this action, seeking an order to void two of the four amendments ratified by the people during the November 2018 election. These amendments were proposed by our General Assembly during its 2017-18 Session. Plaintiff argues that the people should never have been allowed to vote on the amendments based on a 2017 decision in a federal case which declared that 28 members of our 170-member General Assembly had been elected from districts that were illegally gerrymandered based on race. Covington v. North Carolina , 316 F.R.D. 117 (M.D.N.C. 2016), aff'd per curiam , ––– U.S. ––––, 137 S. Ct. 2211, 198 L.Ed.2d 655 (2017).

The superior court agreed and granted Plaintiff's motion for summary judgment, declaring the two challenged amendments ratified by the people void ab initio.² In its order, the superior court concluded that our "General Assembly lost its claim to popular sovereignty," did "not represent the people of North Carolina," and therefore was "not empowered to pass legislation that would [propose, for the people's consideration, amendments to] the state's constitution." The superior court, though, did not declare that our General Assembly was totally powerless to exercise powers granted by our state constitution to the legislative branch, but only the power to pass bills proposing amendments to the people.

On appeal, Defendant argues that the superior court erred. We agree and reverse the order of the superior court.

I. Background

During the 2017-18 Session, our General Assembly passed a number of bills, including six bills proposing various amendments to our state constitution. Two of those six bills proposed (1) an "income tax cap amendment," lowering the maximum income tax rate that could be imposed by our General Assembly from 10% to 7% and (2) a "voter ID amendment," which would allow our General Assembly to enact legislation requiring voters to present a valid photo ID in order to vote, but which would also allow our General Assembly to create exceptions to this requirement.

All six proposals were placed on the November 2018 ballot for the people's consideration. Over $9 million was raised by groups opposing all six proposed amendments, approximately $675,000 was raised to support the voter ID amendment, and no money was raised to support the income tax cap amendment.³

On 6 November 2018, the people ratified the income tax cap amendment by a margin of approximately 538,000 votes, with 57.35% voting in favor and 42.65% voting against. And the people ratified the voter ID amendment by a margin of approximately 405,000 votes, with 55.5% voting in favor and 44.5% voting against. The people also ratified two of the other four proposals.⁴

Plaintiff commenced this present action challenging the income tax cap amendment and the voter ID amendment based on Covington . The issue before the superior court and which is now before us is not whether our General Assembly engaged in illegal gerrymandering. That issue was resolved in Covington. Rather, the issue here is whether, based on Covington , our General Assembly immediately lost its authority to exercise the power granted by our state constitution to our legislative branch to propose amendments to the people. However, a proper understanding of the issue before us requires an understanding of the gerrymandering issue resolved by Covington , which we now address.

Gerrymandering is the process by which the political party in control draws districts for some advantage.⁵ The two main forms of gerrymandering practiced in our history are partisan gerrymandering and racial gerrymandering.

Partisan gerrymandering occurs when the majority party draws districts for the purpose of increasing a party's political advantage in the legislature; for example, where districts are drawn to allow that party's candidates to win a supermajority (over 60%) of the seats even though their candidates in the aggregate statewide receive a bare majority of votes.

The United States Supreme Court recently declared that partisan gerrymandering is legal, holding that the issue presents a "political question beyond the reach of the [judicial branch]." Rucho v. Common Cause , ––– U.S. ––––, 139 S. Ct. 2484, 2499, 204 L.Ed.2d 931 (2019).⁶ In companion cases, the high Court upheld maps designed by our General Assembly to reduce Democratic Party influence and maps designed by Maryland's legislature to reduce Republican Party influence. The high Court reasoned that "courts are not equipped to apportion political power as a matter of fairness, nor is there any basis for concluding that they were authorized to do so." Id. at 2506.⁷

Racial gerrymandering , however, occurs when a "legislature's predominant motive for the design of [certain] district[s]" is race , rather than to achieve a partisan advantage. Bethune-Hill v. Virginia , ––– U.S. ––––, 137 S. Ct. 788, 800, 197 L.Ed.2d 85 (2017) (emphasis added).

Racial gerrymandering is generally illegal. For example, a generation ago, the United States Supreme Court struck down maps designed by our General Assembly to reduce African American influence. Thornburg v. Gingles , 478 U.S. 30, 106 S.Ct. 2752, 92 L.Ed.2d 25 (1986).

But the high Court held that racial gerrymandering may be legal if the legislature can demonstrate that its "districting legislation is narrowly tailored to achieve a compelling interest." Bethune-Hill , 137 S. Ct. at 801 (citation and quotation marks omitted). But absent a compelling interest, racial gerrymandering is illegal even if designed to favor a minority race. This is because "[r]acial classifications of any sort pose the risk of lasting harm to our society [as they] reinforce the belief [ ] that individuals should be judged by the color of their skin." Shaw v. Reno , 509 U.S. 630, 657, 113 S.Ct. 2816, 125 L.Ed.2d 511 (1993) (emphasis added).

One "compelling interest" justifying racial gerrymandering is drawing districts to comply with Section 2 of the Voting Rights Act of 1965 ("VRA"), which prohibits districts that prevent a large group of minority voters living near each other from casting sufficient votes to elect a candidate of their choice. Accordingly, the VRA may require some "majority-minority" districts, where minority voters living near each other make up a majority in that district. See Thornburg , 478 U.S. at 50-51, 106 S.Ct. 2752. But the VRA does not generally require a legislature to maximize the number of majority-minority districts that are possible when developing maps. Johnson v. De Grandy , 512 U.S. 997, 1016-22, 114 S.Ct. 2647, 129 L.Ed.2d 775 (1994). And a plan which maximizes majority-minority districts is unconstitutional if the VRA can be complied with by creating fewer such districts, especially where minority voters in an area have the opportunity to elect a candidate of their choice through some compromise with other voters (where a minority group does not quite make up a majority of voters in the district).

[Though] society's racial and ethnic cleavages sometimes necessitate majority-minority districts to ensure equal political and electoral opportunity, that should not obscure the fact that there are communities in which minority citizens are able to form coalitions with voters from other racial and ethnic groups, having no need to be a majority within a single district in order to elect the candidate of their choice. Those candidates may not represent perfection to every minority voter, but minority voters are not immune from the obligation to pull, haul, and trade to find common political ground, the virtue of which is not to be slighted in applying a statute [ (the VRA) ] meant to hasten the waning of racism in American politics.

Id. at 1019-20, 114 S.Ct. 2647.

Our General Assembly has a robust history of gerrymandering – both political and racial. Democrats engaged in gerrymandering when they controlled our General Assembly.⁸ And Republicans have engaged in gerrymandering since regaining control in 2011.⁹ Indeed, gerrymandering designed to protect incumbents has resulted in fewer truly competitive races: in every election since 1996, over 90% of state legislative races have been decided by greater than 5% of the vote.¹⁰

Until 1968, no African Americans had served in our General Assembly in the 20th century.¹¹ However, with the passage of the VRA in 1965, more African Americans began voting. As a result, in 1968, Henry E. Frye (later our Chief Justice) became the first African American elected to our General Assembly in the 20th century. But no more than six (6) African Americans (or 4% of the General Assembly) served at any one time over the next 15 years. This underrepresentation was due in large part to illegal racial gerrymandering designed to suppress minority influence, a scheme which continued into the 1980s. Thornburg , 478 U.S. at 80, 106 S.Ct. 2752. Specifically, our General Assembly divided concentrations of black voters into separate districts or lumped them with a larger contingent of white voters in multi-member districts. Id. at 38, 106 S.Ct. 2752. The few African American members serving during this period fought against...