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Appellate judges considering whether unconstitutionally-elected lawmakers could propose constitutional amendments

Once a General Assembly is declared by a court to be unconstitutionally constituted and not representative of its voters, does it have the power to rewrite a state’s constitution?

That was the question before a three-judge panel Thursday morning at the state Court of Appeals. A lower court already ruled specifically that the North Carolina General Assembly — after extreme racial gerrymandering — lost popular sovereignty and did not have the authority to propose two constitutional amendments last year, one requiring a photo ID to vote and another lowering the income tax cap from 10 percent to 7.5 percent.

The case was brought by the North Carolina NAACP against Republican legislative leaders, who appealed the lower court’s decision. Their attorney, Martin Warf, argued Thursday that an unconstitutionally elected General Assembly can still serve and carry out their duties.

“If you affirm the rationale of the trial court, which is that the General Assembly lost popular sovereignty, there’s no way to put that back in the box,” he said.

Warf compared it to opening Pandora’s Box and said if the judges threw out the constitutional amendments based on the popular sovereignty argument, it could lead to people trying to get all acts by the General Assembly thrown out.

“It would literally infect and impact every act that was passed,” he said.

The plaintiffs’ attorney, Kym Hunter of the Southern Environmental Law Center, disagreed. She said the process of proposing and enacting a constitutional amendment is very specific and different from the process of just enacting a law. It is a two-step process that requires a 3/5 majority vote and then a vote from the people of the state, and it’s a lot more difficult to undo by the next elected legislature.

She said the federal court that found the elections had been unconstitutionally racially gerrymandered determined that a new election was necessary to re-establish popular sovereignty but that there wasn’t time at that time. The question of whether lawmakers had power in the interim was an unsettled question of state law.

Hunter said the facts of the case were so extreme and so egregious and asked if there was any limit to what an unconstitutional General Assembly could do.

“To rule in favor of the defendants is to say, ‘however gerrymandered a General Assembly is, however egregious, they can do whatever they like,'” she said.

She added that Warf wanted the judges to believe a ruling in the plaintiffs’ favor would be a slippery slope to tossing all laws enacted by the General Assembly, but pointed out the lower court ruling is very specific to the two constitutional amendments the case is about.

“It’s actually quite a straight-forward question,” she said. “We’re not talking about the legislature here, we’re talking about what is required to change our constitution.”

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