Amendment critics oppose lawmakers’ request to end 6-year-old legal battle

Critics of two state constitutional amendments North Carolina voters approved in 2018 oppose state legislative leaders’ latest request in a six-year-old legal battle. Lawmakers have asked a three-judge panel to end the case.

It’s a dispute that prompted the John Locke Foundation to launch the “Extreme Injustice” podcast.

One amendment enshrined a photo identification requirement for voters within the state constitution. The other lowered the state’s income tax cap from 10% to 7%. Plaintiffs in the case, NC NAACP v. Moore, attacked both amendments in court.

Amendment critics filed new paperwork Friday opposing a request to resolve the case in favor of legislative leaders. The plaintiffs hope to prove that the amendments should be struck down based on guidance provided by the state Supreme Court.

“In August 2022, the North Carolina Supreme Court remanded this case with clear instructions: allow additional factual development and conduct an evidentiary hearing to determine if the tax-cap and photo voter-ID amendments met any one of three factors established by the Court,” according to the plaintiffs’ court filing. “Disregarding this clear and unambiguous order, Defendants, stunningly, seek to erase not only the Supreme Court’s mandate but everything that has occurred in this case over the past six-and-a-half years, by asking this Court to rule in their favor based only on the pleadings.”

“Requesting a judgment on the pleadings at this late juncture appears, from Plaintiff’s research, to be unprecedented in North Carolina’s legal history,” the court filing continued.

“This Court should swiftly deny Defendants’ ill-timed and improper motion,” the plaintiffs argued.

In an Aug. 19 memorandum, lawyers for top lawmakers explained why they believe the three-judge Superior Court panel should end the case.

“This matter is on remand to determine whether two amendments proposed by the 2018 North Carolina General Assembly and adopted overwhelmingly by the people of North Carolina should be erased from the Constitution,” lawmakers’ lawyers wrote. “In order for the Court to take such an extraordinary step, Plaintiff must prove … that the amendments have ‘a substantial risk’ of (1) immunizing legislators from democratic accountability; (2) perpetuating the continued exclusion of a category of voters from the democratic process; or (3) constituting intentional racial discrimination.”

“Both amendments at issue here must be left in place because neither amendment meets these factors,” lawmakers’ lawyers argued. “This three-factor equitable test is not adjudicated in a vacuum. Rather, to prevail, Plaintiff must show ‘that there are no circumstances under which the[se] statute[s] might be constitutional.’”

“Newer precedent from the North Carolina Supreme Court regarding photographic identification to vote bears on this Court’s analysis, as does the traditional principles of constitutional review,” the memo added. “It is for these legal reasons that Defendants submit that Plaintiffs claim to invalidate the tax cap amendment … and the voter ID amendment … presently fails as a matter of law.”

Lawmakers initially filed paperwork in July seeking a final ruling from the three-judge panel. That panel issued an order in April rejecting plaintiffs’ request to transfer the case back to a single Wake County judge.

The state Supreme Court returned the case to the trial-court level in August 2022. In a party-line 4-3 vote, the court’s then-Democratic majority ruled that a trial judge could toss out the amendments under certain circumstances.

State Supreme Court Democrats agreed that amendments placed on the election ballot by a racially gerrymandered General Assembly could be deemed invalid, regardless of voters’ response to those amendments.

“Plaintiff cannot meet the new test espoused by the North Carolina Supreme Court in this case under any set of circumstances and Defendants are entitled to judgment as a matter of law in this facial challenge” to the two amendments, lawmakers’ lawyers wrote in July.

Superior Court Judges Gregory Bell, Michael Duncan, and Cynthia Sturges oversee the amendments case. The panel took over after an August 2023 transfer order from fellow Superior Court Judge Graham Shirley. Bell is a Democrat based in Robeson County. Duncan of Wilkes County and Sturges of Franklin County are both Republicans.

The case returned to Wake County Superior Court after a 4-3 ruling in August 2022 from the NC Supreme Court. In a party-line vote, the court’s then-Democratic majority determined that the amendments could be tossed out because a “gerrymandered” legislature had placed them on the ballot.

Plaintiffs led by the North Carolina State Conference of the NAACP labeled the Republican-led General Assembly a “usurper.”  High court Democrats endorsed much of the plaintiffs’ argument but left the final decision about the amendments’ fate in the hands of the Wake Superior Court.

Eight months later, after the state Supreme Court had shifted to a 5-2 Republican majority, the new court upheld the state’s voter ID law. Lawmakers had approved the law in 2018, just weeks after voters endorsed the ID constitutional amendment.

That April 2023 state Supreme Court decision prompted the North Carolina State Board of Elections to implement the voter ID requirement. Elections officials first requested ID from voters during 2023 municipal elections.

Wake County Superior Court Judge Bryan Collins rejected both constitutional amendments in February 2019. The NC Court of Appeals later reversed Collins’ ruling. The 4-3 Democrat-led Supreme Court’s August 2022 decision reversed the Appeals Court’s decision.

“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 then-Democratic majority.

“We conclude that article I, sections 2 and 3 of the North Carolina Constitution impose limits on these legislators’ authority to initiate the process of amending the constitution under these circumstances,” Earls added. “Nonetheless, we also conclude that the trial court’s order in this case invalidating the two challenged amendments swept too broadly.”

Republican justices objected. “[T]he majority nullifies the will of the people and precludes governance by the majority,” according to dissenters.

“At issue today is not what our constitution says. The people of North Carolina settled that question when they amended the constitution to include the Voter ID and Tax Cap Amendments,” Justice Phil Berger Jr. wrote in dissent. “These amendments were placed on the November 2018 ballot by the constitutionally required three-fifths majority in the legislature. On November 6, 2018, the citizens of North Carolina voted overwhelmingly to approve the North Carolina Voter ID Amendment and the North Carolina Income Tax Cap Amendment. More than 2,000,000 people, or 55.49% of voters, voted in favor of Voter ID, while the Tax Cap Amendment was approved by more than 57% of North Carolina’s voters.”

“Instead, 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 added. “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.”

The John Locke Foundation’s then-CEO, Amy Cooke, also criticized the 4-3 decision in August 2022.

“The ‘Usurper Four’ Democrat majority has gone scorched earth on the state constitution and the will of millions of North Carolina voters,” Cooke said in a prepared statement. “This decision, crafted by notorious progressive idealogue Anita Earls, is designed to appease the Democrats’ far-left activist base — a small but well-funded base that openly rejects the very popular voter ID law and taxpayer protections. These four justices — Anita Earls, Sam Ervin, Michael Morgan, and Robin Hudson — are guilty of voter suppression.” 

Hudson retired from the court when her term expired in 2022. Voters ousted Ervin in the 2022 election. Morgan retired from the court in 2023 and ran for the Democratic nomination for governor. He lost in the March primary. Only Earls remains on the state Supreme Court from the “Usurper Four.”

The voter ID amendment has generated more interest than the tax cap amendment. North Carolina’s current 4.5% income tax rate falls below either the old 10% cap or the 7% cap tied to the amendment.

NC NAACP v. Moore was the subject of season one of the John Locke Foundation’s “Extreme Injustice” podcast. The case is documented at ExtremeInjustice.com. The podcast focused on efforts to disqualify Berger and fellow Republican Justice Tamara Barringer from taking part in the case. The state Supreme Court ultimately decided to allow Berger and Barringer to decide themselves whether to take part in the case.

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