Gerrymandering and North Carolina go hand in hand. As North Carolina News Daily recently reported, the history of gerrymandering goes back decades. And, as we also reported, technology has made gerrymandering easier and easier.
Most North Carolinians recognize the word gerrymandering. Many even understand what the concept means. Still, though, it can be difficult to understand how it impacts your everyday life. Last week, however, the North Carolina Court of Appeals issued a divided opinion showcasing its practical impact.
The Legal Background on Gerrymandering in NC
Some gerrymandering is legal. This type, “partisan gerrymandering,” occurs when the majority party draws voting districts for the purpose of increasing its political advantage.
Leading up to the 2012 election, for example, North Carolina’s Republican-majority General Assembly successfully redrew the state’s maps. In doing so, they ensured a veto-proof majority in each house. This meant that, if a majority of NC residents elected a Democratic governor, his or her decision to veto legislation would be meaningless. The United States Supreme Court has ruled that it’s perfectly legal to do so.
Some gerrymandering, however, is illegal. This type, “racial gerrymandering,” occurs when the majority party draws districts based on race. Most recently, that’s where North Carolina’s Republican-controlled General Assembly went too far.
In a lawsuit called Covington v. North Carolina during 2016 and 2017, a federal panel ruled that our General Assembly had engaged in illegal racial gerrymandering by maximizing the number of majority-minority districts. Therefore, it ordered the General Assembly to redraw the districts but permitted it to wait to do so until after the 2018 election.
The result? An illegally gerrymandered General Assembly had the ability to propose amendments to the NC Constitution on the 2018 ballot.
How Gerrymandering Impacts More than Representation
During the General Assembly’s 2017-2018 session, lawmakers passed several bills, including six that proposed amendments to our state’s constitution. One of those was an income tax cap amendment. That amendment permitted the General Assembly to lower the maximum income tax rate in NC from ten percent to seven percent.
The second was a voter ID amendment. Under that amendment, the General Assembly could enact legislation requiring voters to present a photo ID before voting in person. As we have already reported, voter ID requirements tend to disproportionately prevent low-income, minority, elderly and disabled voters from exercising their constitutional right to vote.
You likely sense the problem here. A General Assembly, who illegally gerrymandered the state’s voting districts to the detriment of minorities, was now using its ill-gotten authority to propose a constitutional amendment that was likely to harm minorities.
You might think that courts could stop an illegally gerrymandered General Assembly from proposing something as significant as a constitutional amendment. If you did, you’d be wrong.
The NC Court of Appeals Ruled that the General Assembly Acted Within its Power by Proposing Amendments
The North Carolina State Conference of the National Association for the Advancement of Colored People filed a lawsuit challenging those two proposed amendments. Specifically, the NAACP sought an order declaring the 2018 amendments void.
In doing so, it argued that the illegally gerrymandered General Assembly lost its claim to popular sovereignty and no longer represented the people of North Carolina. Therefore, the NAACP contended, it lost its power to propose constitutional amendments.
Wake County Superior Court Judge G. Bryan Collins, Jr., agreed with the NAACP. He therefore granted a judgment in its favor and ruled that the two amendments were void.
In a divided opinion issued on Sept. 15, however, the North Carolina Court of Appeals reversed Judge Collins’ decision.
According to the NC Court of Appeals, its Decision Prevents Chaos and Confusion
“We do not agree that our ‘General Assembly lost its claim to popular sovereignty’ based on the reasoning that ‘under the illegal racial gerrymandering, a large swath of North Carolina citizens lack a constitutionally adequate voice in the State’s legislature,’ ” Judge Chris Dillon wrote in the majority opinion.
According to Judge Dillon, any result to the contrary would result in chaos and confusion. “If there was a loss of popular sovereignty by our General Assembly,” it said, “then all the laws passed by that body would be subject to attack, thus creating chaos and confusion.”
“It is simply beyond our power to thwart the otherwise lawful exercise of constitutional power by our legislative branch to pass bills proposing amendments,” he concluded.
The majority opinion also emphasized the fact that the amendments were subject to another layer of scrutiny before they passed: “the approval of the people.”
Both amendments got precisely that. NC voters passed the income tax cap amendment 57 percent to 43 percent. And they passed the voter ID amendment 56 percent to 46 percent.
Judge Donna Stroud agreed with Judge Dillon but wrote separately to offer additional support their decision.
Not All of the Court of Appeals Judges Were Convinced, However
In a dissenting opinion, Court of Appeals Judge Reuben F. Young warned that the issue before the Court was “vital to our democracy.”
“Can a legislature, which has been held to be unconstitutionally formed due to unlawful gerrymandering, act to amend the North Carolina Constitution?” he asked. And his answer was clear: No.
“The ramifications of such an act are clear,” Judge Young wrote. “If an unlawfully-formed legislature could indeed amend the Constitution, it could do so to grant itself the veneer of legitimacy.” “It could seek,” he continued, “to ratify and make lawful its own unlawful existence.” According to Judge Young, “[s]uch an act would necessarily be abhorrent to all principles of democracy.”
Judge Young also dismissed the notion that such a decision would result in chaos and confusion. “Certainly, those actions taken in the ordinary course of legislative business must be permitted to stand, as to allow otherwise would create anarchy.”
But, he said, “the only relief requirement here – the very relief granted by the trial court – is that we must void only those actions taken by the legislature which sought to amendment our Constitution.” “Those actions, and only those,” Judge Young explained, “strike the heart of our democracy.”
Are North Carolinians okay with a racially—and illegally—gerrymandered General Assembly proposing something as significant as constitutional amendments? Did North Carolinians even understand that the General Assembly was illegally gerrymandered when they approved these constitutional amendments? We’ll never know the answers to those questions.
But, for now, the General Assembly may pass laws imposing an income tax cap and a voter ID requirement. And it can do so even though it had to amend our state’s constitution to be able to do so.