If American states are laboratories of democracy, they’re also laboratories of democratic decay. North Carolina — close to the median state by party vote share — is offering a grim lesson in how polarization can lead to the partisan nullification of democratic outcomes. This time, it’s Democrats striking while they have the chance.
There’s no violent mob involved in North Carolina’s election nullification; the process is far more respectable than that. Last Friday, a four-justice Democratic majority on North Carolina’s Supreme Court (justices in the state are elected in partisan contests) invented a new constitutional theory that could allow for the invalidation of two Republican-supported constitutional amendments that passed in 2018.
Both amendments were approved by the requisite 60 percent of the state legislature. One, a voter-identification measure, was then ratified by voters with more than 55 percent of the state’s popular vote; another, a limit on the state’s top income-tax rate, was ratified with more than 57 percent support.
How could amendments passed according to the process prescribed in the North Carolina Constitution violate that same constitution? North Carolina’s Supreme Court majority claims in NAACP v. Moore that because the state legislature was gerrymandered in 2011, it likely lacked the authority to submit one or both amendments to voters. Legislators “can only exercise the sovereign power that the people have transmitted to the legislature if they validly hold legislative office,” the majority says.
But North Carolina’s legislators did validly hold their offices. A federal lawsuit filed in 2015 established that the state impermissibly took race into account in redistricting, with the U.S. Supreme Court weighing in twice (in 2017 and 2018). The resulting remedy was to put in place new district lines for the 2018 elections. The elections for representatives in the 2011 districts were never invalidated, and North Carolina officials “hold their positions,” the state constitution says, “until their successors are chosen and qualified.”
The U.S. Supreme Court, in a 1962 redistricting case, wrote that “a legislature, though elected under an unfair apportionment scheme, is nonetheless a legislature empowered to act.” North Carolina’s liberal justices are creating a novel exception — that legislatures adjudicated to contain gerrymanders can pass ordinary legislation, but not advance certain constitutional amendments.
This is an arbitrary distinction with extraordinary implications. “The door has been opened,” the three-justice dissent notes, “for judicial dissolution of legislative authority in the future.” Gerrymandering has been a feature of American politics since the founding. What other laws, in North Carolina or elsewhere, might be called into question if lawyers can excavate a role for redistricting mischief in their passage?