Can NC legislators elected from unconstitutional districts propose changing the constitution?

The state Supreme Court heard arguments today over whether legislators elected from illegal districts could legitimately put constitutional amendments on the ballot.

The state NAACP wants constitutional amendments requiring photo voter ID and capping state taxes invalidated.

In 2018, federal courts determined that legislators had been elected from unconstitutional racially gerrymandered districts and required new maps.

Before elections using new district lines, Republicans in the legislature had enough votes to put six proposed constitutional amendments on the ballot. Getting proposed constitutional amendments to voters requires approval by three-fifths votes in the House and Senate.

Voters approved four amendments, including those requiring voters to present photo identification before casting ballots and capping the state income tax rate at 7%. Voters rejected two other proposed amendments that would have limited the governor’s power.

The legislature cannot rely on votes from legislators elected from illegally gerrymandered districts to put proposed constitutional amendments on the ballot, said Kym Hunter, a lawyer representing the NAACP.

“The will of the people was not being represented in those districts,” she said.

Chief Justice Paul Newby noted that a majority of voters approved both of the amendments the NAACP wants invalidated.

“Why should we discount or undervalue the vote of the people?” he asked.

Martin Warf, a lawyer representing Republican legislative leaders, said the legislature had the authority to act.

“The members were elected in 2016 under valid law of that time,” he said. They “retained the constitutional authority to act until the end of their terms.”

A Wake County Superior Court judge in 2019 tossed out the two amendments. “An illegally constituted General Assembly does not represent the people of North Carolina and is therefore not empowered to pass legislation that would amend the state’s Constitution,” he wrote.

In 2020, the state Appeals Court overturned the lower court in a 2-1 decision.

Hunter said Monday that constitutional amendments, unlike other laws, are not easily undone. The NAACP is not calling for the invalidation of all laws passed while lawmakers from illegal districts were in office, she said.

“We would ask that this court declare that a North Carolina General Assembly cannot rely on votes from racially gerrymandered districts to achieve the supermajority necessary to amend the constitution,” Hunter said. Only the period after the districts were declared illegal needs to be considered,” she said.

Leading up to Monday’s oral arguments, Justices Phil Berger Jr. and Tamara Barringer, both Republicans, rejected calls for their recusal. Berger Jr. is the son of Senate leader Phil Berger, a defendant in the case. Barringer was a member of the state Senate when it voted to put the proposed constitutional amendments on the ballot.

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