The American legal system is grappling with gerrymandering in a way it never has before. This reckoning is long overdue, and there’s the potential – though not the certainty – that these new cases could make American elections dramatically fairer.
However, even in the best case scenario these cases are forward looking. Courts can’t travel back in time and institute a fairer map for elections that have already been held. This means that laws passed by gerrymandered legislatures can affect how people live their lives for decades to come.
That fundamental fact won’t change. However, a North Carolina court has launched what Huff Post legal reporter Ian Millhiser calls a “stunningly aggressive attack on illegal gerrymandering,” ruling that two amendments to the North Carolina constitution approved by voters were illegitimate because they were placed on the ballot by an illegally gerrymandered legislature.
Controversial Amendments from a Controversial Legislature
The two constitutional amendments in question advanced controversial Republican priorities. The most well-known was the amendment enshrining a voter ID requirement in the state constitution – voters approved that amendment by about ten percentage points. The other amendment capped the maximum allowable state income tax rate at seven percent – it passed by nearly 15 points.
The constitutional amendments were placed on the ballot in accordance with North Carolina law: both were approved by a 3/5 supermajority in the state legislature, then garnered a simple majority from state voters.
However, that initial legislative supermajority was elected in a controversial manner. In 2017, the US Supreme Court upheld a lower court ruling that found North Carolina’s legislative districts were illegally racially gerrymandered. That ruling ordered 117 legislative districts to be re-drawn, but those new districts weren’t in place until the 2018 election. It was the legislators elected under the illegally gerrymandered map who placed the new amendments on the ballot.
The NAACP sued, alleging that the constitutional amendments were illegitimate because the legislature that approved them did not accurately represent the people of North Carolina. Judge G. Bryan Collins of the Wake County Superior Court agreed and struck down the voter ID and income tax amendments.
Judge Collins’ Ruling
In his ruling, Judge Collins pointed out that the North Carolina constitution gives the people of the state the sole right to amend the constitution. Because a properly constituted state legislature legitimately represents the people, it is allowed to present constitutional amendments to voters for their approval.
However, because the Supreme Court ruled that the legislature’s maps were illegally racially gerrymandered, the legislature itself lost its legitimacy. Judge Collins argued that the racial gerrymander broke “the chain of popular sovereignty between North Carolina citizens and their representatives.”
Because that chain was broken, the amendments proposed by the legislature did not meet the constitution’s requirements and were thus struck down.
The Ramifications of the Ruling
To be clear, the court’s ruling struck down only the two challenged constitutional amendments. Judge Collins ‘ opinion does not affect any statutory legislation passed by the legislature – striking down all legislation passed by an illegally gerrymandered legislature would almost certainly result in chaos.
The North Carolina GOP appealed, and the Court of Appeals ordered a stay of the county court’s ruling while the appeal is being heard.
The case seems likely to eventually head to the North Carolina Supreme Court, where Democrats currently possess a commanding 6-1 majority (a justice recently appointed by the governor will be up for election in 2020). The fate of Judge Collins’ opinion remains in question – while the state’s highest court has repeatedly moved to strike down Republican gerrymanders, there’s no doubt that the county court’s ruling represents a new frontier in gerrymandering jurisprudence, so it shouldn’t be taken for granted that Democratic judges will automatically uphold the ruling.
Still, the case – North Carolina State Conference of the NAACP v. Moore – represents a fascinating new development in the ever-evolving attempt to combat gerrymandering. Whether Judge Collins’ reasoning holds up in higher courts and is adopted outside the state remains to be seen. But there’s no doubt that the case is worth following in the coming months and years.