RALEIGH, N.C. (WGHP) – The amendments passed by voters in 2018 to be added to the North Carolina constitution – one for voter identification, the other to cap income tax rates – soon could be dead for good.

The North Carolina Supreme Court on Friday sent back to a trial court the case that had invalidated both constitutional amendments that voters had approved, asserting they were created by a legislature that didn’t have the authority to do so.

That’s essentially the outcome of the court’s 4-3 ruling – with the Democratic majority voting together – in North Carolina NAACP v. Moore, a case brought in 2018 that argued the legislature, which is responsible for placing constitutional amendments on the ballot, couldn’t exercise that authority because it had been created by an illegal racial gerrymander.

The voter ID law sought to require picture IDs for voters and replaced a law passed earlier by the General Assembly but ruled unconstitutional in federal court. The other amendment set a 7% cap on state income tax.

Both those measures were approved by the General Assembly that at the time held a supermajority, but Wake County Superior Court Judge G. Bryan Collins Jr. agreed with the NAACP that the legislature couldn’t take that action because the courts had found its makeup to be illegal along racial lines.

The state Court of Appeals had overturned Collins’ decision, which was appealed to the Supreme Court by the NAACP, the Southern Environmental Law Center and Forward Justice, a nonpartisan organization that pursues racial, social and economic justice.

Neither law was implemented during this process, and Friday’s ruling doesn’t overturn them. But it requires Collins to review three additional questions to reinforce his ruling.

In their opinion justices ordered the court to determine “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 discrimination against the same category of voters discriminated against in the reapportionment process that resulted in the unconstitutionally gerrymandered districts.”  

Differing opinions

Phil Berger Jr.

Associate Justice Phil Berger Jr., son of Senate Leader Phil Berger, a defendant in the case, wrote a dissent in which he said, in part, that the ruling “unilaterally reassigns constitutional duties and declares that the will of the judges is superior to the will of the people of North Carolina.”

But Caitlin Swain of Forward Justice, in a release said that the ruling “is the perfect illustration of how the concept of checks and balances in our democracy is supposed to work.”

Sen. Phil Berger Sr. (R-Eden), whose district includes Guilford and Rockingham counties, did not respond immediately to the ruling. Neither did House Speaker Tim Moore (R-Cleveland), the other named defendant.

But Sen. Paul Newton (R-Cabarrus) spoke from the Republicans’ perspective.

“Four Democratic justices have all but thrown out the legitimate votes of millions of North Carolinians in a brazen, partisan attempt to remove the voter ID requirement from our Constitution and deny the people the ability to amend their own Constitution,” Newton said in a statement distributed by the Senate. “This is a direct attack on our democratic form of government from the most activist court in the state’s history.”

‘Big question’

Legislative gerrymandering along racial and political lines was thrown out by various federal and state courts between 2014 and 2021, most recently earlier this year, when maps passed by the General Assembly in November were deemed to be unconstitutional.

The U.S. Supreme Court had ruled during that time that states had the power through courts to review their own gerrymandering cases, but that appears about to change. SCOTUS in its next term is taking up a case from North Carolina to decide the ultimate authority of legislatures in drawing voter maps.

Voter ID and the tax cap were two of six amendments on the ballot in 2018. Those two and Marsy’s Law, which expanded the rights of crime victims, and the right to hunt and fish were passed. Amendments about legislative appointments and judicial selection failed. Forward Justice built a timeline for the voter ID issue.

NAACP President Deborah Maxwell in a statement said that “today’s decision sends a watershed message in favor of accountability and North Carolina democracy. Rigging elections by trampling on the rights of Black voters has consequences. No legislature has the right to use racially gerrymandered maps — infecting more than 2/3 of the districts of this state — to steal power from the people to change our state’s constitution.”

Michael Bitzer, a political science and government professor at Catawba College in Salisbury, posted this comment on his Twitter account:

“This NC Supreme Court opinion seeks to answer a basic, yet fundamental question: Can a legislature (#ncga), which has been held to be unconstitutionally formed due to unlawful gerrymandering, act to amend the NC Constitution? Big question.”