Lawmakers call for end to fight to change laws on ‘extreme injustice’

North Carolina Republican lawmakers are renewing their bid to end a nearly six-year-old legal battle over two state constitutional amendments that voters passed in 2018. One of those amendments requires photo ID for voters, and the other lowers the state's income tax cap.

The case prompted the John Locke Foundation to put together the podcast “Extreme Injustice.”

In a memorandum filed Monday, lawyers for top lawmakers explained why a three-judge Supreme Court panel should end the NC NAACP v. Moore case. The panel is overseeing the lawsuit after a state Supreme Court ruling in 2022.

“This matter is remanded to determine whether two amendments proposed by the North Carolina General Assembly in 2018 and overwhelmingly approved by the people of North Carolina should be struck from the Constitution,” the latest court filing states. “For the Court to take such an extraordinary step, plaintiff must prove that the amendments pose 'a substantial risk' of (1) shielding legislators from democratic accountability, (2) perpetuating the ongoing exclusion of a category of voters from the democratic process, or (3) constituting intentional racial discrimination.”

“Both amendments at issue here must remain in effect because neither amendment satisfies these factors,” the lawmakers' lawyers argued. “This three-factor equitable test is not decided in a vacuum. Rather, to prevail, the plaintiff must show that there are no circumstances under which the[se] Statutes[s] could be constitutional.'”

“Recent North Carolina Supreme Court precedents regarding the presentation of photo identification to vote are relevant to this Court's analysis, as are traditional principles of constitutional review,” the memo continues. “For these legal reasons, defendants allege that plaintiffs seek to invalidate the tax cap amendment and the voter ID amendment, which currently have no legal standing.”

In July, lawmakers first filed papers seeking a final decision from the three-judge panel. That panel issued an order in April denying the plaintiffs' request to send the case back to a single judge in Wake County.

The state Supreme Court remanded the case to the trial court in August 2022. In a 4-3 vote along party lines, the court's then-Democratic majority ruled that a trial judge could reject the amendments under certain circumstances.

Democrats on the state Supreme Court agreed that changes to the ballot made by a General Assembly rigged by racism could be invalidated, regardless of voters' response to those changes.

“Plaintiff cannot under any circumstances meet the new test endorsed by the North Carolina Supreme Court in this case, and defendants are entitled to judgment in this prima facie challenge to the two amendments,” lawyers for the lawmakers wrote in a July court filing.

Superior Court Judges Gregory Bell, Michael Duncan and Cynthia Sturges are overseeing the amendment case. The panel took over the work from colleague Graham Shirley following an August 2023 transfer decision. Bell is a Democrat from Robeson County. Duncan of Wilkes County and Sturges of Franklin County are both Republicans.

The case was remanded to Wake County Superior Court following a 4-3 ruling by the North Carolina Supreme Court in August 2022. In a caucus vote, the court's then-Democratic majority ruled that the amendments could be thrown out because they had been placed on the ballot by a “rigged” legislature.

The plaintiffs, led by the North Carolina State Conference of the NAACP, called the Republican-led General Assembly a “usurper.” Democrats on the Supreme Court supported much of the plaintiffs' argument but left the final decision on the fate of the amendments to the Wake Superior Court.

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

This Supreme Court decision in April 2023 prompted the North Carolina State Board of Elections to prepare for the implementation of voter ID requirements. Election officials required voters to show ID for the first time in the 2023 local elections.

Wake County Superior Court Judge Bryan Collins rejected both constitutional amendments in February 2019. The North Carolina Court of Appeals later overturned Collins' ruling. The Democratic-led Supreme Court's August 2022 decision (4-3) overturned the appeals court's decision.

“The question is whether the representatives elected in districts that were unconstitutionally racially gerrymandered possess the unreviewable authority to initiate the process of amending the North Carolina Constitution, including in a manner that would enable those same representatives to consolidate their own power, evade political responsibility, or discriminate against the same racial group that was excluded from the democratic process by the unconstitutionally racially gerrymandered districts,” Justice Anita Earls wrote for the then-Democratic majority.

“We conclude that Article I, Sections 2 and 3 of the North Carolina Constitution limit the authority of these legislatures to initiate the process of amending the Constitution under these circumstances,” Earls added. “Nevertheless, we also conclude that the Court's decision in this case to invalidate the two challenged amendments was overbroad.”

Republican judges objected.”[T]“The majority nullifies the will of the people and prevents government by the majority,” say the dissidents.

“Today is not about what is in our Constitution. The people of North Carolina settled that question when they added the voter ID and tax cap amendments to the Constitution,” Justice Phil Berger Jr. wrote in his dissent. “These amendments were placed on the November 2018 ballot by the constitutionally required three-fifths majority in the House. On November 6, 2018, the people of North Carolina voted overwhelmingly in favor of the voter ID amendment and the North Carolina income tax cap amendment. More than 2,000,000 people, or 55.49% of voters, voted for the voter ID amendment, while the tax cap amendment was approved by more than 57% of North Carolina voters.”

“Instead, the majority is conducting an investigation that is legally prohibited – what is our Constitution supposed to say? This question is for the people and the legislature to decide,” Berger added. “The majority acknowledges that constitutional procedures were followed, but invalidates over 4.1 million votes and disenfranchises over 55% of North Carolina voters.”

The then executive director of the John Locke Foundation, Amy Cooke, also criticized the 4-3 decision in August 2022.

“The Democratic majority of the 'Usurper Four' trampled 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 ideologue Anita Earls, is designed to appease the Democrats' far-left activist base – a small but well-funded base that openly opposes the highly 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 unseated Ervin in the 2022 election. Morgan retired from the court in 2023 and ran for the Democratic nomination for governor. He lost the primary in March. Of the “Usurper Four,” Earls is the only one remaining on the state Supreme Court.

The voter ID change has generated more interest than the tax cap change. North Carolina's current 4.5% income tax rate is below either the old 10% cap or the 7% cap associated with the change.

The constitutional amendment case, titled NC NAACP v. Moore, was the subject of the first season of the John Locke Foundation's Extreme Injustice podcast. The case is documented on ExtremeInjustice.com. The podcast focused on the effort to bar Berger and fellow Republican Tamara Barringer from participating in the case. The state Supreme Court ultimately decided to let Berger and Barringer decide for themselves whether they wanted to participate in the case.