N.C. State Conference of The Nat'l Ass'n v. Moore, 261A18-3

Docket Nº261A18-3
Citation2022 NCSC 99
Case DateAugust 19, 2022
CourtUnited States State Supreme Court of North Carolina

2022-NCSC-99

NORTH CAROLINA STATE CONFERENCE OF THE NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE
v.

TIM MOORE, in his official capacity, and PHILIP BERGER, in his official capacity.

No. 261A18-3

Supreme Court of North Carolina

August 19, 2022


Heard in the Supreme Court on 14 February 2022

Appeal pursuant to N.C. G.S. § 7A-30(2) from the decision of a divided panel of the Court of Appeals, 273 N.C.App. 452 (2020), reversing an order entered on 22 February 2019 by Judge G. Bryan Collins, Jr. in Superior Court, Wake County.

Southern Environmental Law Center, by Kimberley Hunter and David Neal; and Irving Joyner; and Forward Justice, by Daryl V. Atkinson, Caitlin Swain, and Kathleen E. Roblez, for plaintiff-appellant.

Nelson Mullins Riley &Scarborough LLP, by D. Martin Warf and Noah H. Huffstetler, III, for defendant-appellees.

ACLU of North Carolina Legal Foundation, by Jaclyn Maffetore, Leah J. Kang, and Kristi L. Graunke, for American Civil Liberties Union of North Carolina, amicus curiae.

Paul Hastings, LLP, by Lindsey W. Dieselman, for Brennan Center for Justice at New York University School of Law, amicus curiae.

Appellate Advocacy Clinic, Wake Forest University School of Law, by John J. Korzen, for Democracy North Carolina, amicus curiae.

Womble Bond Dickinson (US) LLP, by Pressly M. Millen, for Former Chairs of the North Carolina Judicial Standards Commission, amici curiae.

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Abrams &Abrams, by Douglas B. Abrams and Noah B. Abrams; and Whitfield Bryson LLP, by Matthew E. Lee, for North Carolina Advocates for Justice, amicus curiae.

Jeanette K. Doran for North Carolina Institute for Constitutional Law and John Locke Foundation, amici curiae.

Robinson, Bradshaw &Hinson, P.A., by Robert E. Harrington, Adam K. Doerr, Erik R. Zimmerman, and Travis S. Hinman, for North Carolina Legislative Black Caucus, amicus curiae.

Wallace &Nordan, L.L.P., by John R. Wallace and Lauren T. Noyes; and Freshfields Bruckhaus Deringer U.S. LLP, by Aaron R. Marcu, pro hac vice, and Shannon K. McGovern, pro hac vice, for North Carolina Legislative Black Caucus, amicus curiae.

Tharrington Smith, LLP, by Colin A. Shive and Robert F. Orr, for North Carolina Professors of Constitutional Law, amici curiae.

Stam Law Firm, PLLC, by R. Daniel Gibson; and John V. Orth, pro se, for Professor John V. Orth, amicus curiae.

Ellen Murphy for North Carolina Professors of Professional Responsibility, amici curiae.

Michael G. Schietzelt for Robert H. Edmunds Jr., Barbara A. Jackson, and Mark Martin, Retired Former Justices of the Supreme Court of North Carolina, amici curiae.

Brooks, Pierce, McLendon, Humphrey &Leonard, L.L.P., by Daniel F. E. Smith, Jim W. Phillips, Jr., Eric M. David, and Kasi W. Robinson, for Roy Cooper, Governor of the State of North Carolina, amicus curiae.

Law Office of Christopher J. Heaney, PLLC, by Christopher J. Heaney, for Scholars of Judicial Ethics and Professional Responsibility, amici curiae.

EARLS, JUSTICE

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¶ 1 This case involves completely unprecedented circumstances that give rise to a novel legal issue directly implicating two fundamental principles upon which North Carolina's constitutional system of government is predicated: the principles of popular sovereignty and democratic self-rule. The issue is whether legislators elected from unconstitutionally racially gerrymandered districts possess unreviewable authority to initiate the process of changing the North Carolina Constitution, including in ways that would allow those same legislators to entrench their own power, insulate themselves from political accountability, or discriminate against the same racial group who were excluded from the democratic process by the unconstitutionally racially gerrymandered districts.

¶ 2 In the final week of the final regular legislative session preceding the 2018 general election, a General Assembly that was composed of a substantial number of legislators elected from districts that the United States Supreme Court had conclusively determined to have resulted from unconstitutional racial gerrymandering enacted legislation presenting six constitutional amendments to North Carolina voters. Some of these measures passed in the General Assembly by notably narrow margins. By this time, it had already been established that twenty eight legislative districts were drawn in a manner that violated the Equal Protection Clause of the United States Constitution, see Covington v. North Carolina, 316 F.R.D. 117, 124 (M.D. N.C. 2016), aff'd, 137 S.Ct. 2211 (2017), and many other districts had

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also already been redrawn to remedy this unconstitutional racial gerrymander, see North Carolina v. Covington, 138 S.Ct. 2548 (2018) (per curiam). The two amendments at issue in this case-Session Law 2018-119 (the Tax Cap Amendment) and Session Law 2018-128 (the Voter ID Amendment)-cleared the required three-fifths supermajority threshold by one and two votes in the House and by four and three votes in the Senate, respectively. Both amendments were ultimately ratified by a majority of North Carolina voters. In that same election, conducted using newly drawn legislative districts, the voters denied to any political party a three-fifths supermajority in either the North Carolina House or Senate.

¶ 3 What is extraordinary about these events is not that a legislative body was composed in part of legislators elected from unconstitutional districts. That has occurred on numerous occasions in recent years just in North Carolina alone. See, e.g., Stephenson v. Bartlett, 357 N.C. 301, 314 (2003) (affirming trial court's determination that the 2002 revised legislative redistricting plans were unconstitutional); Harris v. McCrory, 159 F.Supp.3d 600, 604 (holding that two North Carolina Congressional districts were unconstitutional racial gerrymanders) (M.D. N.C. 2016), aff'd sub nom. Cooper v. Harris, 137 S.Ct. 1455 (2017). Rather, what makes this case so unique is that the General Assembly, acting with the knowledge that twenty-eight of its districts were unconstitutionally racially gerrymandered and that more than two-thirds of all legislative districts needed to be redrawn to achieve compliance with the

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Equal Protection Clause, chose to initiate the process of amending the state constitution at the last possible moment prior to the first opportunity North Carolinians had to elect representatives from presumptively constitutional legislative districts. Indeed, neither of the parties, nor any of the amici curiae, have identified a single previous instance of a legislative body composed of a substantial number of legislators elected from unconstitutional districts attempting to exercise powers relating to the passage of constitutional amendments after it had been conclusively established that numerous districts were unconstitutional.

¶ 4 The precise legal question before us is whether a General Assembly composed of a substantial number of legislators elected due to unconstitutional gerrymandering may exercise the sovereign power delegated by the people of North Carolina to the legislature under article XIII, section 4 of the North Carolina Constitution, which authorizes the General Assembly to propose constitutional amendments "if three-fifths of all the members of each house shall adopt an act submitting the proposal to the qualified voters of the State for their ratification or rejection." The broader question is whether there are any limits on the authority of legislators elected due to unconstitutional racial gerrymandering to alter or abolish "the fundamental law of the State [that] defines the form and concept of our government." Bazemore v. Bertie Cnty. Bd. of Elections, 254 N.C. 398, 402-03 (1961). These questions cut to the core of our constitutional system of government: if legislators who assumed power in a

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manner inconsistent with constitutional requirements possess unreviewable authority to initiate the process of altering or abolishing the constitution, then the fundamental principle that all political power resides with and flows from the people of North Carolina would be threatened.

¶ 5 We conclude that article I, sections 2 and 3 of the North Carolina Constitution impose limits on these legislators' authority to initiate the process of amending the constitution under these circumstances. Nonetheless, we also conclude that the trial court's order in this case invalidating the two challenged amendments swept too broadly. Because the legislators elected due to unconstitutional racial gerrymandering retained the authority needed to avoid "chaos and confusion in government," the trial court should have considered whether invalidating both the Voter ID Amendment and the Tax Cap Amendment was necessary "upon balancing the equities" of the situation. Dawson v. Bomar, 322 F.2d 445, 447 (6th Cir. 1963).

¶ 6 In particular, the trial court should have examined as a threshold matter whether the legislature was composed of a sufficient number of legislators elected from unconstitutionally gerrymandered districts-or from districts that were made possible by the unconstitutional gerrymander-such that the votes of those legislators could have been decisive in passing the challenged enactments. If not, no further inquiry is necessary, and the challenged amendments must be left undisturbed. In this case, however, the record is clear that votes of legislators from

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unconstitutionally gerrymandered districts could have been decisive. Therefore, the trial court needed to also consider three additional questions: whether there was a substantial risk that each challenged constitutional amendment would (1) immunize legislators elected due to unconstitutional racial gerrymandering from democratic accountability going forward; (2) perpetuate the continued exclusion of a category of voters from the democratic process; or (3) constitute intentional...

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