Let me preface this writing with the acknowledgment that I am not a lawyer. Everything written here is just analysis based upon personal research on what is publicly available.
The past few days have been a whirlwind in North Carolina politics. Just Thursday, which seems like ages ago, Mark Harris delivered his testimony before the North Carolina State Board of Elections which, ultimately, resulted in his calling for a new election and stepping down from the stand.
That story took up most of our collective bandwidth over the course of the week, but then on Friday afternoon a Wake County Superior Court Judge ruled that both the Income Tax and the Voter ID Amendments were unconstitutional. The kicker, though, was part of the rationale in his ruling: the North Carolina General Assembly legislative districts were declared unconstitutional in 2017, making the amendments themselves void ab initio, unenforceable.
A lot of #ncpol observers, myself included, quickly took that ruling to suggest that anything enacted by the incumbent General Assembly might be ruled null and void simply because the body itself is illegitimate, as this ruling claims. Part of the ruling reads:
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.
Part of the logic behind that line is that it requires three-fifths majorities in both the House and the Senate to approve amendments to be placed on the ballot. This did occur with the six amendments ultimately put before the voters in the November 2018 elections. However, the number of seats affected by the 2017 decision finding the legislative districts unconstitutional numbered high enough to call into question the validity of that vote. Simply put, more legislators represent districts that are unconstitutional than exist to pass an amendment proposal in either chamber.
So, the logic behind the court ruling is that the NCGA, as it exists now and when the ballot amendments were approved, did not have the legal authority to do so. But then, there’s the question of why this would not apply to all other legislation passed by the same body of apparent usurpers.
The defendants posited that “the General Assembly maintained authority to enact legislation so as to avoid ‘chaos and confusion,'” which cites a fascinating case from the 1960’s called Dawson v. Bomar. The crux of that precedent is that, generally speaking, if an illegitimate state legislature passes legislation, they still carry the weight of law. As those jurists wrote:
Further, since to hold the acts of our Legislature since 1901 invalid because of malapportionment would cause a state of chaos and confusion to exist, we will balance the equities between the individual complaint in this case and the public at large and refuse to hold the acts of our malapportioned Legislature invalid, because to do so would destroy our State government.
That sentiment seems to hold true. It would be ridiculous, on its face, to discard all legislation passed by what has been the de facto legislature in this state since 2013, even if it existed in a sort of quasi-legal state. Legislation cannot be overturned if it were to inject “chaos and confusion” into the state. That metric is what Judge Collins decided did not apply to the two amendments which were overturned on Friday.
That information is interesting enough by itself, but what makes this case truly compelling, to me at least, is the fact that the amendments were voted on and approved by North Carolinians. Judge Collins takes a decidedly bold stand on the question, and although it has drawn immediate criticism from Republicans in the state, it does present a fascinating bit of political theory to consider: if an illegal body presents a constitutional ballot amendment that is approved by the electorate, should that amendment stand? For now, the answer appears to be no.
Kirk Kovach is a native North Carolinian interested in writing about politics, communication and culture.