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Split North Carolina appeals court retains two amendments

By Gary D. Robertson, Associated Press

A North Carolina appeals court panel overturned on Tuesday a court ruling that voided alterations to the state constitution because legislators who put referendums on the ballot were elected from racially biased districts.

The challenge to actions by the Republican-dominated General Assembly is not over after the split decision by the Court of Appeals and will be decided by the state Supreme Court. The litigation, filed by the state NAACP, centered on a pair of amendments approved by voters in November 2018, including a photo identification requirement to vote.

The appeals panel declared that Wake County Superior Court Judge Bryan Collins got it wrong in early 2019 by declaring the legislature lacked the power to approve legislation that created the referendums. The other approved amendment reduced the cap on income tax rates to from 10% to 7%.

Collins declared the General Assembly had been “illegally constituted” at the time because it included legislators elected in 2016 from nearly 30 legislative districts struck down by federal courts as illegal racial gerrymanders.

Lawmakers elected from districts used in 2016 were ordered by federal judges to redraw those maps for the 2018 elections. That’s a directive that affirms the legitimacy of those lawmakers to act on other matters, Court of Appeals Judge Chris Dillon wrote.

Should Collins’ decision be upheld, Dillon added, there would be nothing to stop legal challenges to conventional legislation approved by that edition of the General Assembly, or other sessions in which judges declared illegal gerrymandering. That would lead to chaos and confusion, he and a colleague wrote.

“There is no North Carolina law interpreting the North Carolina Constitution in a way that could support the trial court’s conclusion,” Judge Donna Stroud wrote in a separate opinion upholding Dillon’s declaration to reverse Collins. “If the General Assembly lacked authority to pass a bill for submission of a constitutional amendment to the voters, it surely lacks authority to pass other bills as well.”

The NAACP’s lawyers contend that the General Assembly members approved under maps declared illegal were “usurpers,” and thus lacked legitimacy. While acknowledging that courts have allowed invalid legislatures to pass other laws and budgets, the plaintiffs’ attorneys argued amending the constitution had more long-term consequences that must be blocked.

Court of Appeals Judge Reuben Young, writing the dissenting opinion, said there is no need to void all legislative acts by such a General Assembly. But actions to alter the “central document of this state’s laws” are different, he said.

“For an unlawfully-formed legislature, crafted from unconstitutional gerrymandering, to attempt to do so is an affront to the principles of democracy which elevate our state and our nation,” Young wrote.

The NAACP plans to appeal the decision to the Supreme Court, group attorney Kym Hunter said.

“A racially gerrymandered General Assembly does not represent the people of North Carolina and therefore is not empowered to amend out state’s constitution,” she said in an interview.

House Speaker Tim Moore, who with Senate leader Phil Berger are defendants in the lawsuit, praised the ruling.

“It’s a great day for democracy that our citizens can have confidence their vote on critical issues for our economy and our elections systems will count and not be overridden by activist courts,” Moore said in a news release.

Democratic Gov. Roy Cooper, a voter ID opponent, wanted Collins’ ruling upheld.

The Court of Appeals had already delayed the enforcement of Collins’ order while it heard the matter. The decision does not order a photo ID requirement in this fall’s election. Lawsuits challenging the implementation of that amendment are pending in state and federal courts.

The NAACP lawsuit only addressed two of four constitutional amendments on the ballot that were approved by voters in 2018. Two additional amendments proposed were rejected by voters.

Dillon and Stroud are registered Republicans, while Young is a registered Democrat. Six of the seven Supreme Court justices are registered Democrats. Three Supreme Court seats are on the November ballot.

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