In North Carolina State Conference of National Association for the Advancement of Colored People v. Moore, the North Carolina Supreme Court considered whether the General Assembly, which was comprised of legislators who were elected in legislative districts that had been held to be unconstitutionally racially-gerrymandered, had authority under the state constitution to refer constitutional amendments to the ballot for voters to approve.[1]

Before the end of the regular legislative session preceding the 2018 general election, the General Assembly narrowly enacted legislation by the required three-fifths supermajority to present six constitutional amendments to the voters.[2] Prior to this, however, the United States Supreme Court had determined a substantial number of the sitting General Assembly’s members had been elected from districts that were unconstitutionally racially-gerrymandered.[3]

The North Carolina Supreme Court examined the viability of two of the amendments––one that would cap the state income tax at seven percent and one that would require voters to present identification to vote––and whether the General Assembly had power under the state constitution to refer them to the ballot considering the aforementioned circumstances.[4] Both amendments were ultimately ratified by a majority of voters in the 2018 general election.[5]

The North Carolina Supreme Court ruled 4-3 that the state constitution imposes limits on the authority of the legislature to initiate the process of amending the constitution where a substantial number of its members are elected from unconstitutionally gerrymandered districts.[6] However, the court did not move to strike the amendments altogether, finding that the trial court’s order to invalidate the two challenged amendments swept too broadly.[7]

Justice Anita Earls’ majority opinion was joined by Justices Michael Morgan, Robin Hudson, and Samuel Ervin. Relying on the “principles of popular sovereignty and democratic self-rule” as embodied in the state constitution,[8] the court considered whether the legislators who passed these constitutional amendments had the authority to do so when most were elected from districts whose maps were determined to have been unconstitutionally racially-gerrymandered.[9]

This required the court to examine the status of the legislators who were elected from districts that were either unconstitutionally racially-gerrymandered or from districts that needed to be redrawn to cure those racial gerrymanders. They categorized them into one of three classes: de jure officers,[10] de facto officers,[11] and usurpers.[12]

The court found that, prior to the United States Supreme Court’s decision in Covington, the legislators elected from these contested districts were de facto officers whose actions before the Supreme Court’s decision were not subject to attack.[13] Yet because the court had not previously addressed a situation in which a party challenged actions undertaken by an officeholder after the law under which that official assumed office was conclusively determined to be unconstitutional, the court was hesitant to classify the legislators as usurpers with no authority to act in any official capacity. Doing so would invalidate every legislative act and invite chaos and confusion.[14]

The court was equally hesitant to label the legislators as de facto officers who possessed all power delegated to their office under the constitution.[15] While the court recognized that the General Assembly still possessed some power after Covington, it was not willing to hold the legislature could propose constitutional amendments.[16] The court relied on the different, heightened procedural requirements under the constitution that the legislature must satisfy to validly initiate the constitutional amendment process as justification to differentiate these acts from passing ordinary statutes.[17]

Because the votes of those legislators who put forth the constitutional amendments could have been decisive, the court tasked the trial court with considering three additional questions on remand: whether there was a substantial risk that each challenged constitutional amendment would (1) immunize legislators elected due to unconstitutional racial gerrymandering from democratic accountability going forward; (2) perpetuate the continued exclusion of a category of voters from the democratic process; or (3) constitute intentional discrimination against the same category of voters discriminated against in the reapportionment process that resulted in the unconstitutionally gerrymandered districts.[18] This three-pronged test is an entirely new one for the lower courts to grapple with since no part of it came from precedent.

Should any of these factors be present, the court reasoned that the balance of equities required the trial court to invalidate the challenged amendments.[19] The court reversed the decision of the court of appeals that reversed the trial court’s order declaring the Voter ID and Tax Cap Amendments void and remanded the case to the trial court to conduct such analysis.[20]

The dissent was written by Justice Phil Berger and joined by Chief Justice Paul Newby and Justice Tamara Barringer. They asserted that the voters of North Carolina possessed the ultimate authority to amend their constitution and that they utilized this authority to pass the two amendments at issue by wide margins.[21] Because the majority’s decision threatened voters’ authority to amend their state constitution, the dissent vehemently disagreed with the majority’s decision and argued that the will of the judiciary was being prioritized over the will of the voters.[22]

Relying on separation of powers principles in the constitution,[23] the dissent warned the court against undertaking questions of policy that are constitutionally committed to the other branches of government.[24] Because the state constitution details the General Assembly’s exclusive power to propose amendments to the constitution, the dissent opposed the majority’s decision  allowing the judiciary to intrude on the legislature’s authority.[25]

The dissent also challenged the majority’s new test. The dissenters argued it would require the judiciary to make policy choices and value determinations as courts would have to investigate the substance of each legislative action and weigh the policy implications of those actions.[26]  This, according to the dissent, would require courts to answer political questions that are better reserved to the voters and their representatives.[27]

After recognizing the majority’s desire to avoid chaos and confusion by not invalidating every action by the General Assembly after Covington, the dissent argued the majority’s “exercise of judicial selectivity creates greater chaos and confusion.”[28] The dissent argued it “defies logic” to suggest that legislation passed by the 2018 General Assembly, which is not reviewable by the people, is beyond the reach of this decision, while acts of the legislature which are passed upon by the people are suspect.”[29] 


[1] North Carolina State Conference of National Association for the Advancement of Colored People v. Moore, 876 S.E.2d 513 (N.C. 2022).

 

[2] Id. at 518.

 

[3] See Covington v. North Carolina, 316 F.R.D. 117, 124 (M.D.N.C. 2016), aff’d, –– U.S. ––, 137 S. Ct. 2211, 198 L.Ed.2d 655 (2017). In Covington, a three-judge panel of the federal district court held that all twenty-eight challenged districts were unconstitutionally racially-gerrymandered after finding “overwhelming and consistent evidence” that the drafters of the enacted plans intentionally prioritized race over traditional neutral districting criteria. Id. at 130. The district court concluded that the legislative defendants “[did] not carr[y] their burden to show that each of the challenged districts was supported by a strong basis in evidence and narrowly tailored to comply with either Section 2 or Section 5” and ordered the General Assembly “to draw remedial districts in their next legislative session.” Id. at 176-77. The legislators who referred these constitutional amendments to the ballot were elected under the challenged maps.

 

[4] Moore, 876 S.E.2d at 518. 

 

[5] Id. Although a majority of voters subsequently approved the two amendments, the Court refused to entertain the argument that voter approval made the challenge moot. See id. at 528-29. The Court held that “when governmental entities fail to adhere to constitutional procedural requirements, their resulting actions are void” even if a majority of voters subsequently ratify the action. Id. Furthermore, because the amendment process requires a valid legislative majority in addition to approval by a majority of the voters, the former could not be ignored even if the voters ultimately approved the measure. Id. at 529.

 

[6] Id. at 519.

 

[7] Id.

 

[8] See N.C. Const. art. I, §§ 2, 3 (“All political power is vested in and derived from the people; all government of right originates from the people, is founded upon their will only, and is instituted solely for the good of the whole . . . The people of this State have the inherent, sole, and exclusive right of regulating the internal government and police thereof, and of altering or abolishing their Constitution and form of government whenever it may be necessary to their safety and happiness; but every such right shall be exercised in pursuance of law and consistently with the Constitution of the United States.”).

 

[9] Moore, 876 S.E.2d at 527; N.C. Const. art. XIII, § 4 (“A proposal of a new or revised Constitution or an amendment or amendments to this Constitution may be initiated by the General Assembly, but only if three-fifths of all the members of each house shall adopt an act submitting the proposal to the qualified voters of the State for their ratification or rejection. The proposal shall be submitted at the time and in the manner prescribed by the General Assembly. If a majority of the votes cast thereon are in favor of the proposed new or revised Constitution or constitutional amendment or amendments, it or they shall become effective January first next after ratification by the voters unless a different effective date is prescribed in the act submitting the proposal or proposals to the qualified voters.”).

 

[10] A de jure officer is one who “exercises the office . . . as a matter of right[,]” and “must (1) “possess the legal qualifications for the . . . office in question;” (2) “be lawfully chosen to such office;” and (3) “have qualified . . . to perform the duties of such office according to the mode prescribed by law.” Moore, 876 S.E.2d at 530 (internal citations omitted). De jure officers can legitimately exercise all the powers assigned to an office because they have assumed office in accordance with all legal requirements. Id. The court did not go so far as to hold that de jure officers alone have the capacity to exercise the authority assigned to a government office, for precedent and wisdom direct otherwise to protect the orderly administration of government and the reliance interests of those who have relied on the acts of apparent officeholders. Id.

 

[11] A de facto officer as an individual “who occupies a[n] . . . office under some color of right, and for the time being performs its duties with public acquiescence, though having no right in fact” and may exercise the powers attendant to that office in ways that bind third parties and the public. Moore, 876 S.E.2d at 530 (internal citations omitted).

 

[12] A usurper is an individual “who takes possession [of an office] without any authority.” Moore, 876 S.E.2d at 531 (internal citations omitted).  A usurper’s acts “are absolutely void[] and can be impeached at any time in any proceeding.” Id. (internal citations omitted).  

[13] Id. at 531.

 

[14] Id. at 532.

 

[15] See id.

 

[16] Id. at 533. For example, the Court recognized how the federal court in Covington had entrusted this very General Assembly to enact remedial maps. But establishing legislative districts, the Court reasoned, is an ordinary legislative act; amending the constitution is not. See id.

 

[17] Id. at 535.

 

[18] Id. at 519, 537.

 

[19] Id. at 539.

 

[20] Id. at 519-20, 540.

[21] Id. at 540

 

[22] Id.

 

[23] See N.C. Const. art. I, § 6 (“The legislative, executive, and supreme judicial powers of the State government shall be forever separate and distinct from each other.”).

 

[24] Moore, 876 S.E.2d at 544.

 

[25] Id. at 545.

 

[26] Id. at 549-50.

 

[27] Id.

 

[28] Id. at 557.

 

[29] Id.

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