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Opinion North Carolina justices offer a liberal roadmap for overturning elections

cigaretteman

HR King
May 29, 2001
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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.

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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?
If governors or presidents misbehave, they can be voted out of office — and if legislatures are gerrymandered, they can be redrawn. But Americans need to have confidence that the institutions that govern them do so legitimately. The certification of elections is an important process because it confers authority on elected officials.
Confidence in that authority is declining as Donald Trump attacks Joe Biden’s election and progressives denigrate the Constitution as undemocratic. Now partisan judges in a key swing state have announced that legislatures elected under the rules in place when votes were cast may be retroactively deemed to not have been real legislatures at all. We don’t want to keep pulling on this thread.


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The events in North Carolina show the complexity of majority rule in America’s federal system. Some progressives celebrated the result of Kansas’s 59 percent vote to maintain abortion rights, but worried that in certain states, gerrymandering will prevent the “true” will of the people from being expressed. Maybe so, but in North Carolina, the voting and tax measures were subject to an up-or-down plebiscite. They won convincing victories even in a strong Democratic election year.
So who is frustrating small-d democracy in America’s ninth-most-populous state: the 170-member legislature, which put the measures on the ballot, or the seven-member North Carolina Supreme Court, which may set the results aside? The answer should be clear to everyone involved.
One of the most unshakable convictions of intellectuals in Washington and the academy is that any “backsliding” of America’s democratic political system is the product of Republican norm-breaking and radicalism. But there is rarely only one mover in the dialectic process of polarization, as North Carolina’s experience shows.







At the beginning of the last decade, the legislature drew district lines aggressively to give the GOP an advantage, and in 2016 it tried to limit the powers of the incoming Democratic governor, Roy Cooper. The Democratic court’s latest usurpation of the legislature is best understood as another partisan escalation that is straining the foundations of state government.
As Princeton’s Keith E. Whittington notes, the dissent “practically begged the U.S. Supreme Court to overturn this case.” But Democrats might lose their one-vote majority on the North Carolina Supreme Court in November’s election, and a Republican-controlled court could reverse the decision. Pressure is building in American democracy’s North Carolina “laboratory” — but Washington, rather than stepping into the breach, may be wiser to step back and let the experiment proceed.

 
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