Progressive Judges Threaten to Override Will of Millions of North Carolina Voters

O n August 19, the four Democrats on the North Carolina supreme court outvoted their three Republican colleagues in a case that could end up nullifying millions of votes.

The case has its origins in events that happened four years ago, in 2018. Back then, North Carolina’s Republican-led legislature placed six proposed state constitutional amendments on the November ballot, each one approved by the required three-fifths majorities in the state House and Senate. Voters approved four of the six amendments, despite a campaign by Democrats and their allies urging the electorate to “nix all six.”

Among the successful amendments was a measure mandating photo identification for voters. Out of nearly 3.7 million ballots cast, more than 2 million voters — 55 percent of them — said yes to that amendment. Another amendment lowering North Carolina’s cap on income-tax rates proved even more popular, passing with almost 2.1 million votes, 57 percent of the total.

The N.C. State Conference of the NAACP objected to both of these amendments, and filed suit to block them from taking effect. Despite the fact that clear majorities of voters had supported both measures, NAACP plaintiffs argued that voters never should have had an opportunity to cast a ballot on either issue.

At the time that the amendments were put to voters, federal courts had ruled against Republican legislators in partisan fights over redistricting. Despite the fact that judges had taken no action to block the General Assembly from conducting regular business in connection with the redistricting fights — lawmakers could still hold hearings, make appointments, and vote on bills — NAACP plaintiffs argued that the gerrymandered legislature had no legal right to approve constitutional amendments for inclusion on the ballot.

The NAACP’s suit ignored the fact that voters make the ultimate decision about constitutional amendments: If gerrymandered election districts somehow skew a General Assembly’s priorities, voters can reject legislators’ bad ideas at the polls. It also ignored two other amendments approved by the electorate through the same process used for the voter-ID and tax-cap-lowering amendments. Those amendments guaranteed crime victims’ rights and protected hunting and fishing, and were thus less objectionable to the political left.

The lawsuit, N.C. NAACP v. Moore, attracted little attention until February 2019, when a Superior Court judge surprised many observers by siding with the plaintiffs, ruling that the two challenged amendments should be stricken from the state constitution. In September 2020, in a split 2–1 ruling, the state’s intermediate court of appeals reversed that decision, concluding that the legislature had had the right to put the amendments before voters in 2018, regardless of what courts had said about election maps.

NAACP plaintiffs then appealed to the state supreme court, North Carolina’s highest legal authority. The case proceeded on a standard course until August 2021, when, days before oral arguments were scheduled to begin, it disappeared from the calendar. The court offered no explanation for this, but reports started circulating that the four Democratic justices were contemplating an unprecedented move: Forcibly removing two Republican justices from the case based on motions from the NAACP’s lawyers.

The next month, the court confirmed those reports when it issued an order asking both parties for guidance about dealing with the NAACP’s requests for the Republican justices to be disqualified. The order suggested that the court’s Democratic majority was open to the idea of removing the two Republicans from the case. The controversy prompted my boss, John Locke Foundation CEO Amy O. Cooke, to apply a new label to the four Democratic justices: “The Usurper Four.”

By Christmas, the court had ceased discussion of forcibly removing justices from this case or any other. N.C. NAACP v. Moore eventually returned to the court’s calendar in February, more than five months after its mysterious disappearance. The case proceeded as normal, until finally, last Friday, the court issued its ruling.

“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,” wrote Justice Anita Earls for the majority.

Earls’s opinion concluded that the state constitution limited the ability of lawmakers from gerrymandered districts to place amendments before voters, never mind the fact that voters themselves make the ultimate decision about amendments, regardless of how those amendments reach the ballot. But instead of striking down the challenged amendments, the ruling returned the case to the original trial judge for further hearings, and invited the judge to kill the amendments (again) if he finds that they violate the criteria the Democratic justices devised.

A Republican justice who had been targeted for forced removal from the case, Phil Berger Jr., challenged his Democratic colleagues in dissent. “The majority engages in an inquiry that is judicially forbidden — what should our constitution say? This question is designated solely to the people and the legislature,” Berger wrote. “The majority concedes that constitutional procedures were followed, yet they invalidate more than 4.1 million votes and disenfranchise more than 55% of North Carolina’s electorate. Unwilling to accept the results of a procedurally sound election that enshrined the Voter ID and Tax Cap Amendments in our state constitution, the majority nullifies the will of the people and precludes governance by the majority.”

“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,” added Republican Paul Newton, the chairman of the state Senate’s elections committee. “This is a direct attack on our democratic form of government from the most activist court in the state’s history.”

It is true that, practically speaking, the consequences of that attack may be minimal, at least for the moment. Because the voter-ID amendment is today tied up in other federal and state lawsuits, the court’s decision in N.C. NAACP v. Moore will have no direct impact on election procedures this fall. And because North Carolina’s General Assembly has been lowering tax rates rather than raising them, the tax-cap amendment shouldn’t become a source of legislative conflict any time soon.

Yet that’s cold comfort for the millions of voters who approved both amendments in 2018: Four Democrats on the state supreme court have just told them that in the longer term, their votes might not count. In her ruling, Earls wrote that the challenged amendments could fail if they “perpetuate the continued exclusion of a category of voters from the democratic process.”

The irony was apparently lost on her.