Fascinating decision of NC Supreme Court that requires a bit of unpacking: federal courts held that 28 NC legislators were elected from unconstitutional, racially-gerrrymandered districts. Courts permitted them to retain their seats until the next election. The NC legislature can propose constitutional amendments with 60% support, which voters then vote on. In waning days of the legislative session, the legislature voted to endorse six constitutional amendments.

The two amendments at issue in this case required the support of those elected from these unconstitutional districts to pass. (1) a Voter ID amendment and (2) an amendment capping taxes. Voters passed both. NC Supreme Court held that the legislature might not have had the power to propose these particular amendments, due to the critical role legislative votes to propose the amendments from members in unconstitutional districts had played. Thus: the amendments might be invalid.

What about legislation that had been enacted by this legislative body over the prior two years? The court held that this legislation is still valid, based on something called the “de facto” officer doctrine. That’s a typical result. But the court concluded constitutional amendments are different: they change fundamental law. On the other hand, the court also held that not even all constitutional amendments from an unconstitutionally constituted legislature are potentially invalid.

The court distinguished constitutional measures that adopt particular policies from those that “alter the way the people’s sovereign power is allocated, channeled, and exercised by the people’s representatives.” The court held the latter uniquely threaten democratic self-rule.

More specifically, the court sent the case back to the trial court to apply three main factors to these two amendments: (1) the factor I just noted; (2) whether the relevant legislators’ votes were potentially decisive (which is a clear yes here, as the court says); 3) whether the provisions involve “policy choices that intentionally discriminate against a particular category of citizens who were also discriminated against in the drawing of the districts from which the legislators who initiated the amendment process were elected.”

I’m not aware of any court that has issued a comparable decision.

Is this case likely to go to the US Supreme Court? First, there’s a procedural issue: the Court typically only takes cases after a final judgment, which is absent here. This case is back in the trial court.

Second, the case is sui generis. The Court typically takes cases only when they present some recurring problem of national importance or a conflict in the lower courts. But what would the substantive claims be a cert. petition would raise? The dissent suggested the court’s decision violated the “republican form of government clause.” But long-established doctrine makes that non-justiciable, ie, courts would dismiss that claim.

Most likely, petitioners would invoke federal constitutional protections for the right to vote. The argument would be that voters who voted for that state legislature were denied the proper full effect of their vote if legislature cannot exercise all its normal powers.

Not saying the Court would or should take the case. But if an effort is made to go to the Court, I would expect that to be the basis. By the way, this case does not implicate the independent state legislature theory: provisions do not apply to federal elections.