NC NAACP v. Moore: The Impact of Unconstitutional Legislative Maps on a State Legislature's Ability to Propose Constitutional Amendments

[Music and Narration]

 

Jack Derwin:  Hello, and welcome to this Federalist Society virtual event. My name is Jack Derwin, and I’m Associate Director of Practice Groups at The Federalist Society. Today, we’re very excited to host a panel discussion sponsored by our Federalism and Separation of Powers Practice Group titled “North Carolina NAACP v. Moore: The Impact of Unconstitutional Legislative Maps on a State Legislature’s Ability to Propose Constitutional Amendments.”

 

      Joining us today is a great panel of legal experts who bring a range of views to the topic. In the interest of time and to get right to the discussion, we’ll keep intros very brief. You can view our speakers’ full bios at FedSoc.org. Our moderator today, Judge Robert Numbers, is a United States Magistrate Judge in the Eastern District of North Carolina.

 

      After discussion between our panelists and audience Q&A -- excuse me -- we’ll go to audience Q&A, as time allows, so please enter any questions for our speakers at the Q&A function at the bottom right of your Zoom window. Finally, I’ll note that, as always, all expressions of opinion on today’s program are those of the speakers joining us. With that, I will pass it over to you, Judge Numbers.

 

Hon. Robert T. Numbers:  Great. Thank you, Jack, for that introduction. It’s a pleasure to be with everyone today to discuss the Supreme Court of North Carolina’s recent decision in North Carolina State Conference of the NAACP v. Moore. In that case, the state supreme court decided that the North Carolina General Assembly may have lost its power to propose amendments to the state constitution because several of its legislative districts were held to be the result of an unconstitutional racial gerrymander.

 

      Now, for some background, the North Carolina constitution contains a two-step amendment process. To begin with, three-fifths of the membership of each house of the general assembly must approve any proposed amendments. If a proposed amendment meets that standard, it’s then placed before the voters for ratification. If a majority votes in favor of a proposed amendment, it is then added to the state constitution. In the waning days of its 2018 regular session, the general assembly passed six bills placing various constitutional amendments before the voters. Those bills included a proposed amendment requiring voters to show identification before voting, and another capped the state income tax rate.

 

      The proposed voter ID amendment passed with two votes more than necessary in the house and three votes more than necessary in the senate. The proposed tax cap amendment passed by a similarly narrow margin, receiving just one more vote than necessary in the house and only four votes more than necessary in the senate. The voters then approved both the voter ID amendment and the tax cap amendment.

 

      As all this was going on, the North Carolina NAACP sued to challenge the amendment’s constitutionality. The organization’s suit was based on the conclusion by the federal courts in Covington v. North Carolina that the maps used to draw the general assembly’s legislative districts were the result of an unconstitutional gerrymander. The plaintiffs argued that a general assembly that was the result of an unconstitutional racial gerrymander lacked the authority to place constitutional amendments on the ballot for public ratification. The trial court agreed with the plaintiffs, holding that “an illegally constituted general assembly does not represent the people of North Carolina and is, therefore, not empowered to pass legislation that would amend the state’s constitution.” It declared the voter ID and tax cap amendments void ab initio. And after a divided panel of the North Carolina Court of Appeals reversed the trial court, the case eventually ended up before the state supreme court.

 

      A four-justice majority began its analysis by discussing principles of popular sovereignty and democratic self-rule that informed its decision. It noted that, under the North Carolina Constitution, “Individuals can only exercise the sovereign power that the people have transmitted to the legislature if they validly hold legislative office.” The majority then went on to say that “the constitution defines and structures the processes by which individuals assume offices that permit them to exercise sovereign power, and sovereign power can only be lawfully exercised by individuals who have come into office through the processes established by the constitution for that very purpose.” As a result, “The legitimacy of any individual officer’s claim to exercise sovereign power depends on the legitimacy of the process by which that individual came to assume the office to which the sovereign power has been delegated.”

 

      The supreme court then went on to consider whether the legislators who passed the bills submitting the two amendments to the voters could validly exercise the authority conferred on the legislature by the people to propose constitutional amendments for public ratification. But before reaching that question, the supreme court considered whether the fact that the people had ratified the amendments rendered moot any concerns over the process that led to the amendments being placed on the ballot. It concluded that the ratification did not because the state constitution requires actions by both the general assembly and the people before an amendment can be adopted. And since the state constitution incorporated “a particular procedural mechanism for exercising the people’s sovereign power to alter or abolish their chosen form of government,” a flaw in that process could render an amendment improper.

 

      So the court then turned to the question of whether the general assembly had the authority to propose constitutional amendments when several of its members were elected from districts that the federal courts had determined were “either unconstitutionally racially gerrymandered or from districts that needed to be redrawn to cure those racial gerrymanders.” This involved consideration of whether the members of the general assembly were considered de jure officers—those who lawfully held their offices and could legitimately exercise the offices power as a matter of right—de facto officers—those who are in office and can exercise the power of the office but are later determined to have been ineligible to hold the office—or whether they were usurpers—those improperly in office and thus lacking the authority to exercise the power of that office.

 

      The supreme court concluded that until the United States Supreme Court issued its opinion in Covington, the members of the general assembly were de facto officers, and the validity of their actions taken during this time was not subject to collateral attack. But the majority believed that after Covington, the legislators’ status was less certain. The plaintiffs argued that the members of the general assembly were usurpers who no longer had the authority to act, while the defendants argued that they were, at worst, de facto officers who still retained the power to legislate.

 

      Instead of accepting either side’s argument, the supreme court held that after Covington, the general assembly had the power to enact general legislation, but it may have lost the ability to propose amendments to the state constitution. This was because “constitutional amendments, unlike ordinary statutes, have the potential to transform North Carolina’s theory of government and restructure its political processes.” According to the majority, the supreme court “cannot and need not blind itself to the chaos that would ensue if a body composed of a substantial number of office holders who assumed office in violation of the United States and North Carolina Constitutions was afforded free reign to initiate the process of transforming North Carolina’s fundamental law.”

 

      The supreme court did not conclude, however, whether the voter ID and tax cap amendments were unconstitutionally adopted. Instead, it remanded the case to the trial court to consider several questions. First, the trial court must consider whether the votes of the legislators who were elected as a result of unconstitutional gerrymandering were potentially decisive. If so, then the trial court must examine three further factors to determine whether the challenged constitutional amendments “so gravely threatened principles of popular sovereignty and democratic self-rule as to require retroactive invalidation.”

 

      Those factors are whether there is a substantial risk that the challenged amendments will, first, immunize legislators from democratic accountability; second, perpetuate the ongoing exclusion of a category of voters from the political process; or three, intentionally discriminate against a particular category of citizens who were also discriminated against in the political process leading to the legislators’ election. The supreme court explained that if any of these factors are present, then the balance of equities require the court to invalidate the challenged amendment.

 

      Three dissenting justices argued that there was no legal basis for the majority’s hybrid approach to legislative authority after the Covington decision. The dissenters maintained that no state or federal court had recognized limitations on the power of officials exercising de facto authority—like those in the majority opinion. And it noted that the majority had so restricted legislative authority “that it had effectively dissolved the legislature regarding its constitutionally defined role in proposing constitutional amendments.”

 

      And the dissent contended that the majority opinion would create chaos and confusion about past acts, such as votes to override gubernatorial vetoes and votes to approve federal constitutional amendments and create confusion about actions taken by future general assemblies that may eventually be found to be the result of unconstitutional maps. The dissenters also suggested that by allowing a court to toss out constitutional amendments ratified by the public, the majority’s decisions may violate the United States Constitution’s Republican Form of Government Clause as well as the Fourteenth Amendment’s Due Process Clause.

 

      Today, we’re joined by a distinguished panel of experts to discuss this case and its implications. To begin with, we are joined by Jeanette Doran, the President and General Counsel of the North Carolina Institute for Constitutional Law. NCICL is an organization focused on enhancing individual liberty, promoting a thriving and innovative economy within North Carolina, and ensuring that state and local governments are committed to following the state and federal constitutions.

 

      Next, we’re joined by Rick Glazier, the Executive Director of the North Carolina Justice Center. The Justice Center focuses on anti-poverty work in the areas of education, immigration, healthcare, housing, workers’ rights, consumer law, and budget and tax policy. Prior to his position as Executive Director of the Justice Center, Mr. Glazier served seven terms from 2003 to 2015 as a State Representative from Cumberland County, North Carolina, in the state’s general assembly.

 

      And the final member of our panel is Professor Derek T. Muller. Professor Muller holds the Ben V. Willie Professorship in Excellence at the University of Iowa College of Law, and he is a nationally recognized scholar in the field of election law. His research focuses on the role of states in the administration of federal elections, the constitutional contours of voting rights and election administration, limits of judicial power in the domain of elections, and the electoral college.

 

      We’ll begin by hearing from Ms. Doran.

 

Jeanette Doran:  Thank you very much, Judge Numbers, and thank you to The Federalist Society for hosting this event. I think you did an excellent job recapping a pretty complicated case, so I’ll just dive in on where I have some concerns and where I think members of the public either have concerns or should have some concerns. One, I think, is we need to consider the other amendments passed at this same time in 2018. This case only involves the voter ID amendment and the tax cap amendment, but there were two other amendments that passed—there were two more which were rejected by the people. But we need to consider what’s the status of those two additional amendments—the Marsy’s Law and the Hunting and Fishing Law.

 

      But we also should consider what this case opens the door to in terms of challenging the amendments that we’ve had over the course of many decades. North Carolina is on its third constitution, the constitution of 1971. Since 1971, we’ve had something like 40 or 42 amendments to the state constitution. But we’ve also been in this almost perpetual cycle of redistricting litigation, and at various points over the decades, we had maps which have been valid in part, invalid in other parts. So I’m curious to see what enterprising attorneys are going to do when they are unhappy with things like the 2004 amendment on tax increment financing -- what all sorts of amendments over the years -- are they going to be subject to attack on the basis that, at various points, legislatures proposing those amendments may or may not have been valid? I think that’s something we really need to brace ourselves for—a flood of that kind of litigation.

 

      It’ll be interesting to see what kind of academic publishing we see—scholarly writing on that subject. I think that’s something the public should be looking forward to, bracing for, but I’m also interested in looking at this prospectively—its impact. There is a concern that I’ve heard from some friends of mine in both the legal community and the general policy community that what the supreme court was doing -- when this case is read up against the redistricting case from earlier this year, where the supreme court really thrust itself, exceptionally, actively, into redistricting -- is what the state supreme court doing is setting up itself to be a supreme decider not only of what the constitution is but what it ought to be by saying, “All right, we get to decide whether the legislature’s valid in the first place, and then after that, we get to decide what its actions -- which of its actions were or were not valid?”

 

      I think voters are going to be left very confused by the efficacy of their vote. Remember, in 2018, when North Carolinians elected the -- or in 2016, when North Carolinians elected the general assembly which put forth the 2018 amendments -- voters in 2016, when they picked their representatives, had no way of knowing that they were not going to have full legislative authority, which our constitution contemplates includes the constitutional authority to propose amendments. So voters went to the ballot box, and there was no asterisk on the ballot saying, “Oh, and by the way, these folks aren’t really going to have full authority.” And it’s also important, along that line, to keep in mind that the plaintiffs in the redistricting case had asked the federal court to shorten the term of the legislators, and the court declined to do that.

 

      So we had no indication -- we—members of North Carolina’s voting public—we had no idea that we were electing a general assembly that years down the line was going to be partially castrated by a supreme court saying, “Well, maybe you can do everything and maybe you can’t.” So those are things -- those are all the different kind of thought clouds going around in, I think, legal and policy circles. So with that, I will turn it over to my co-panelist. I’m interested to hear what they have to say on my thoughts and the case in general.

 

Hon. Robert T. Numbers:  Thank you. We’ll hear from Mr. Glazier next, and I would note, if you have questions for the panelists, you can enter them in the Q&A box, which should be available at the bottom of your screen.

 

Rick Glazier:  Thank you, Judge, and good afternoon, everyone. I think I was also invited to the panel to provide a slightly different perspective, but I think people are going to find that actually, Jeanette and I have some significant agreement on this on a number of issues here.

 

      And I have to give the transparent background. When this was being thought of as a theory to attack the constitutional amendments, my organization was asked to participate in that litigation, attempting to suggest that the legislators who voted on this—who were from, what was later deemed to be, unconstitutional redistricting—were usurpers. I did a lot of research at that time, along with another lawyer in my office, and we determined that we did not think that theory was the most established theory upon which one could argue this case and had some real concerns about that—as a matter of law but also as a matter of pragmatics—about how to govern the State of North Carolina. We chose, in the end, to not join that lawsuit on the basis that we didn’t think the cause of action was likely to prevail. I was wrong. Apparently, it is likely to prevail.

 

      But I want to highlight a couple of the thoughts. I don’t agree fully with all of Jeanette’s points, but I do think that there are real issues. The first question is—and I’m going to approach it from a very pragmatic basis of having been a legislator for thirteen and a half years—where do you draw the line, number one? And the argument has to be, as the court made, that there’s a difference between constitutional amendments that could restructure the essence of government and pragmatic decisions day-to-day on public and local laws. I think one could make that argument, as the court did, but I think it is a very slippery slope, and in that regard, my thoughts turn to budget.

 

      Government’s chief role is formulating a budget. It is what sets out the policy and the framework for the government of the state for the next two years, every biennium. I think it is a little harder to argue that you can do a 25 to 30-billion-dollar budget enactment, but you cannot do a constitutional amendment capping a revenue source for that budget. And so, I think it is hard for me to articulate the fundamental basis that the most quintessential act of the government in formulating the budget is okay, but the constitutional amendment may not be. And that leads to Jeanette’s question of, “And what’s the hierarchy of constitutional amendments?” We’ve got the voter ID amendment and the tax cap amendment challenged, but Marsy’s Law and the hunting and fishing issue not. No one can claim what plaintiffs are going to argue, but it seems to me an amendment’s an amendment is an amendment, and so, how you handle that is really important.

 

      But I think there’s a real pragmatic issue involved. I think there’s a secondary issue, which I think will actually -- could resolve this case and many cases that might be brought as a result of it. Jeanette talked about, I think, 42 constitutional amendments over the time that she was referring to—post the most recent constitution. The vast amount of constitutional amendments that were proposed during that time and passed and sent on to voters were not deeply partisan splits. There wasn’t for a long period of time a big partisan split in the legislature in the ‘70s and ‘80s for there to be a deep partisan split. They were generally sent on with large votes.

 

      Getting to the court’s first question of did some of the unconstitutionally elected legislators -- are their votes dispositive in sending this measure on to the public? Well, in this case, I think there’s an argument they were—just as a matter of the deep partisan divide on the issues that went to the ballot. But on most of the prior constitutional amendments, very little division—with exceptions, but very little division. So you wouldn’t get past the triggering question on attacking prior constitutional amendments for the most part. 

 

      Secondly, I think the court has set up—and tried to say, in some ways—a deterrence from ever seeing this happen again that if you have district challenges and you are a deeply partisanly divided legislature, don’t be passing constitutional amendments under those circumstances where you’re going to use one or two or three-vote margins to enable that to happen. But they’ve given an out to the trial court in the three questions that were asked, and particularly, I think it’s hard to -- I think the trial court has the ability—based on the facts of this case and, fundamentally, the voter approval of those amendments that followed—to find an off-ramp to this particular challenge. Whether I’m right and whether [inaudible 22:53], I think is an open question. But I think the court—more than dealing with the current amendments—was setting out a standard for this not to happen again. And I think that if one looks at it from that perspective, it’s different than saying the court’s just restructuring and impeding sovereignty and affecting voter’s approval.

 

      I do think that the third point to make—to me always was—if there were process problems and constitutional irregularities in the election of those legislators and they made a difference—and I think there’s an argument in both cases that’s true—did the voters, essentially, ratify that decision or give it immunization by their approval. And here, frankly, I simply disagree with the court majority and agree with the court’s dissent. I think that, in the end, whatever those errors were—and they should never be repeated -- but the public passed the constitutional amendments, and I think that there is more damage done to the system and to public confidence and integrity in the system if we seek to undo what were highly publicized and full voting capacity of the public to adopt those amendments. And it’s there where I sort of part company.

 

      I don’t think that I’m worried that the court did something outrageous. I think there’s reasonable views for exactly what they did and why they did it. I view it as more a futuristic decision than exactly and fully impacting the current one because of the off-ramp they’ve given the trial court. But I will say that, Jeanette, your point about the court -- there’s concern in the community—in parts of the community—that the court is restructuring government on its own, and vacating public reliance on decisions long-made. I would make the same argument that that’s exactly what Dobbs did at the U.S. Supreme Court level in a different way. And so, I don’t -- I disagreed with Dobbs and what it portended and its harsh diminution of stare decisis. I disagree with this court’s decision—not quite as harshly—but I think there’s an argument, in both cases, to be made that public confidence—public integrity in the process—is paramount [inaudible 0:25:41] if you look at this that their vote rendered effectively harmless error to the constitutional violation that may have underlie the general assembly’s view.

 

      And Judge, I think I’ve pontificated sufficiently and showed that I’m halfway with Jeanette and a little disagreement, but I’d love to hear what Professor Muller has to say and then open it up for discussion on what is truly, in all circles, I must say, a deeply controversial decision.

 

Hon. Robert T. Numbers:  Thank you. Professor.

 

Prof. Derek T. Muller:  Sure. I did not have a Dobbs reference on my Bingo card for today, but it’s good to think about the effect of these decisions. Usually, as I think about state court decisions, there’s a lot of controversy or struggle about really divisive ones, and I try to sometimes have some hesitation before I’m too critical of decisions. But this is a decision—I really have to say—strikes me as bananas, if I can use that word right now—to open with that.

 

      I mean, the opinion itself—let me just start with this very briefly—it’s a hard opinion to read because there are just a number of turns of phrases where it seems like the court is acknowledging that there are weaknesses in its position up front. The very first sentence of the opinion says, “This is a completely unprecedented circumstance.” I mean, are there unprecedented circumstances that are partially precedented, or how does that fit? “This case is so unique,” the court goes on. Well, unique means one-of-a-kind. It’s hard to know what “so unique” is except to say something more than that, right? 

 

      And the court seems straining throughout the opinion, openly acknowledging, repeatedly, this is a novel case and, in fact, then tacitly acknowledging this is a novel construction of law and a novel development of law placed atop this. And again, the slippery thing about it is, as the dissent points out, it really strikes at the Republican Form of Government Clause, something that the United States Supreme Court has long said is non-justiciable, something that Congress, I think, really ought to be considering evaluating, frankly, to the extent that Congress has the power to review what is or is not a Republican form of government. And whether or not the House of Representatives in 2023 chooses to do so is, in my judgment, an entirely legitimate inquiry, to the extent that the Republican Form of Government Clause means anything. 

 

      The notion that there is this power that the legislatures have and the acknowledgment that they are de facto officers -- we use de facto and de jure as flip sides of the same coin but acknowledging that there’s, again, a formal difference between them, right? There’s a legal or there’s a non-legal, but they hold that power. To develop an exception in this case -- and again, as the dissent points out, as far as I can tell, as far as the scholars I’ve talked to, unprecedented in American history -- to say that de facto officers hold less than the full legislative power is a remarkable proposition. It’s a remarkable proposition to construe the state constitution as empowering the state supreme court to constrain the state legislature that way. 

 

      There are a number of ways in which the court tries to minimize these things—for instance, that they made a vote very late in the session. The lateness, to me, seems immaterial to whether or not you have the power. Whether they vote in December or November or October, the power seems the same to me—whether or not they were acting by a slim margin or a larger margin. Well, the constitution gives you the margin. The constitution establishes the threshold for that power. Whether it’s one vote or unanimous, it’s a power that you have pursuant to the state constitution. 

 

      So there are a number of slippery devices to suggest that these circumstances are the ones -- and I think, Rick, you’re right that these caveats make it less likely that it could spin out, maybe, to some of the things that Jeanette was talking about. Although, again, who knows in the future to the extent that this is lying there now as a precedent that might be used. But, again, it strikes me as very strange the number of caveats. And I look at the opinion -- and one way of saying, “Well, this is very narrow.” Right? Because we’re not going to say that the legislature lacked any power that we’re going to throw out any bill that they enacted, right? 

 

      So you could say, on the one hand, “Well, that’s narrow,” but on the other hand, that’s just kind of common sense. There’s almost no realistic way for the court to step in and throw out the decisions over months and months of legislative sovereign power. So by—and again, I hate to borrow the word—gerrymandering the decision, in a way, to really pick at to what might be described as disfavored constitutional amendments—at least those kinds that are disfavored by the plaintiffs who brought this challenge—in a way, is attempting to minimize the decision but I think just reflects the reality that they’re attempts to draw distinctions in a way that purports to minimize it but really picks off a couple of things in a particular way.

 

      It’s not clear to me -- while the court talks about these sorts of decisions about the political power of the people and saying that this political power—that the voter ID law and the tax law—somehow implement this power, in this particular case, it’s not clear to me that this is about how you -- how the legislature channels the people’s power, right? I mean, it’s a tax amendment bill, and it’s a voter ID bill. This is not describing how many legislators there are, the quorum to do business, or these things that you might describe as essential legislative functions. So again, the sort of caveats that are put in place here don’t necessarily make the most sense to me except, again, in the sense that the court is trying to figure out some limiting principle that it might be able to use in this particular case.

 

      In some ways, I’m more sympathetic to the concern about the people’s will, in terms of ratifying the amendment, than Rick is—at least on this front. I agree there’s a legitimacy concern when the people have voted overwhelmingly—or relatively overwhelmingly—in favor of these propositions, and the court steps in later and says, “No, no, no, no. None of that was any good.” I’m sympathetic, at least coming from,  most recent -- well, I’m at Iowa now; I came from California, a state known for its ballot initiatives and referenda—a lot of popular sovereignty. And the struggle that the courts have to figure out when should things appear on the ballot only to be taken off later for violating things like the Single-Subject Rule or other constraints that the people themselves have placed upon the initiative, the referendum process, upon the amendment process. So I have some sympathy also for thinking about that.

 

      But again, there’s also this risk of a decision that was rendered two years after the people have voted—there’s a lot of water under the bridge—and then inviting the second-guessing about what the legislature did in the first place. Again, I think the timing is a different sort of question about undoing the decisions well after the fact.

 

      And then finally, I’ll raise this, and then we can talk, maybe -- I’m interested to hear from the panelists also about where this case has gone since. When we think about these cases, whether it’s racial gerrymandering or others, this has happened before in the United States—a lot of different places and a lot of different times—and I don’t feel like the court adequately addressed that. Baker v. Carr, in 1962, opened the door for the federal courts to get involved in one-person-one-vote cases. And by the time you get to Reynolds v. Sims, they’re asserting, by the Supreme Court, that entire chambers of the bulk of state legislatures around the country were unconstitutionally constructed. Nobody is sitting there thinking that the decisions of those chambers were unlawful. 

 

      Now I understand there’s this -- another distinction made. Well, it’s about whether before the legislature is made aware it’s acting illegally versus after it’s being made aware that it’s acting illegally against these nuance justifications to indicate when the power attaches or departs. But even there—to the extent that there was a finding of a lack of legislative constitution—these legislatures still got to act. They still got to legislate as they would. And that’s the entire point of having de facto officer doctrine. 

 

      No one showed up and did the very hard work of filing a writ quo warranto to say that these legislators were in the wrong district. In fact, many of them were not the result of racial gerrymanders. The majority of the legislature is not, although many seats are touched when you start drawing districts that have to move boundaries and move them around. They’ll affect those who were racially gerrymandered and those who were entirely innocent, and really, in a sense, depriving the people of the weight of their vote to be able to elect the preferred candidates of their choice to then legislate on the topics that they were empowered to do. 

 

      So there’s a lot of peeling back of the risks to what we think of as democratic self-governance when we show up well after the fact to strip the legislature of power that the voters at the time had no idea was lacking and who later then voted to ratify the decisions of that very legislature and in a popular form of government.

 

      So I think we can maybe talk about the politics, too, of a new state supreme court election changing the makeup and whether or not this case is left in the dustbin of history or whether it’s going to be promptly overturned, whether or not the district court’s findings are going to change how the process works, whether or not there’s going to be some sort of rush in the next four or six weeks to issue a decision before the term ends on some of these issues—I don’t know. But it does strike me as—sui generis is one way of putting it—to say it is not a model I think we will see in many other places. And I don’t think it’s a model that will be widely extended in North Carolina, except to the extent that it invites future litigation and further questioning of the processes in North Carolina.

 

Hon. Robert T. Numbers:  Great. Well, thanks. Well, Professor Muller touched on this during his comments, and a number of our questions touch on this as well. From the panel’s viewpoint, what does the future hold for this case, both in the short term as the case makes its way back down from the state supreme court to the trial court, and then the trial court needs to do the analysis required by the supreme court’s opinion, and then the case will—if past is prologue—make its way back up the appellate court ladder to be dealt with by a supreme court that will have a different composition than it did when this case was addressed a few months ago. So do any panelists have thought on those issues?

 

Rick Glazier:  Well, my thought is—on this case and many others—that we have a changing composition but under the still naïve view that what political party you come from should not be affecting the independence of your judicial determinations and thought. I want to credit full capacity to Justices Elect Dietz and Allen for where they may end up on these issues or any other issue, whether it’s Leandro or all of the other cases that are percolating that were 4-3 splits or 3-3 decisions in the most recent year. But having said that, my pragmatic side would say that we won’t be talking about this case much after next year.

 

Jeanette Doran:  I would certainly agree with that assessment. I think this time next year, this will be a question for a CLE Bingo game—trivia game kind of thing—because it’s just -- it’s kind of a freak decision. It was a bizarre set of circumstances that brought it up, and I think because of the changing composition of the supreme court, we’re likely to see a very different result when it goes back to the supreme court. Were that not the case, I think this would be the sort of thing that could have really profound, long-lasting, multi-generational impact. But because I think it is most likely that Dietz and Allen, when they take their position on the court and when the case makes its inevitable return to the supreme court, I think it’s most likely that we’re going to see a very different decision.

 

      I think when it goes back, we should anticipate that whoever writes the majority opinion—assuming that they do, in fact, reverse this decision—I think they will -- I think that altering justice will highlight and even exploit some of the strained language and reasoning that Professor Muller was just speaking of in his remarks—some of these odd phrases where it seemed like the court was really stretching too hard. And on that note, I think some of the language that we see and some of the efforts to minimize the seeming breadth of the decision, I think that was not a legal decision. I think that was a political decision.

 

      Again, this was a decision that came out in August. They knew that one member of the majority was up for re-election. He, as we all know now, was not re-elected, but I think some of what they were trying to do in saying, “This is so unique; this is so unprecedented,” is to try to give that justice a little insulation from the prospect that those who were running for court and for various commentators and special interest groups to say, “Look, this is what happens when we have an activist majority.” I think, ultimately, that was unsuccessful, but I do think that’s part of why some of the language in the opinion is so strained. And I think next time it’s up at the supreme court, whoever writes that opinion is, I think, absolutely, going to zoom in on some of those oddities in this particular opinion.

 

Rick Glazier:  One follow-up to Jeanette’s point, if I may, Judge? You started your comment, just now, with saying this is the product of a bizarre set of circumstances. Well, that’s sort of how the court started its opinion, and it is a unique set of circumstances, so we’re all in agreement. It was—however we define “unique/bizarre—” an unusual set of circumstances, and I don’t think the court was wrong to say that.

 

Jeanette Doran:  I didn’t think it was procedurally bizarre. I mean, once the case started in court, that’s where I think the bizarro world began. I don’t think the bizarro world happened until this case was filed, and we saw this throwing out and disregard for the will of the people. And that’s the part that, to me, is bizarre.

 

Rick Glazier:  Well, I think there were the unique set of circumstances that led to the case even being filed. I will say that those circumstances were ones that other states, over the course of years, looked at and did not find or agree with the same result in how they proceeded in those cases in other states. But I will also say that some of the language that we’re talking about, where the court was trying to cabin or confine their opinion and the breadth of the opinion to what they perceived to be a very unique set of circumstances, is how courts always do that when there are constitutional theories or tensions. And so, I think it was—whether we call it political for purposes of election, or we call political within the institution of the court—trying to confine their opinion but to set out the understanding that there are real consequences when legislatures engage continually in political and racial and partisan gerrymandering. And here is one of the most unique consequences that could happen.

 

      Again, I’m viewing this case not so much for what it did because I think -- again, I believe pretty deeply there’s an off-ramp to the trial court, regardless of what’s going to happen when it goes back to the new supreme court. But I do think it was sending out a clear signal that there are real consequences to public fidelity and public confidence in the legislative process when there is this constant battle about whether legislators are properly in their roles and that it’s time that we think about that as a state because there are enormous consequences that can happen. And I think, in that sense, it was highlighting a very serious issue that this state has faced for multiple decades—regardless of who’s been in power—and those aren’t going away.

 

      And to say that some of the public is concerned politically about an activist court, well, I can say a whole lot of the public is concerned about a legislature that doesn’t seem to want to follow state and federal constitutional rules on how to create redistricting. And I go back to that happening with the democrats that caused the initial litigation in 2002/2003. So I think it’s something that has enormous consequences for public confidence in the government, and while this may not have been the answer I would have chosen, I do think it’s legitimate that the court’s decision raises those questions in a broader perspective.

 

Hon. Robert T. Numbers:  And, Rick, let me just ask -- it touches on something you just said. One of our questioners -- one of our attendees asked the question of, “What is the off-ramp that the trial court has here, in your view?” You may have touched on it briefly before, but could you go into a little more detail on what you think that is?

 

Rick Glazier:  Yes, Judge. I think that -- and you highlighted in a very concise and cogent, eloquent explanation of the case the three questions that are going back to the trial court. And I think there is -- my view of how a trial court might handle those questions is to, essentially, say -- is to answer those questions in the negative and to find that, while there are real issues being created here, none of those—how do I want to say it—double harms, which is, I think -- like the discrimination issue for example -- none of those double harms occurred here. And I think a trial court could legitimately answer those questions in a way that ends the case.

 

      Now, whether a trial court—in particular, the trial court who originally decided this question—will go that way is another matter. Whether we ever get the trial court’s decision or we get a sua sponte rehearing or other procedural grounds that gets this case back to the supreme court before the trial court actually is able to do that work is also another matter.

 

      But I do think that those questions, when I read them -- my first thought of them when I read them is, “These are questions that can be answered, potentially—based on what I think the evidence would show—either way.”

 

Prof. Derek Muller:  Let me add, one of the factors that the court uses to send it back is—and they use -- I’m trying to draw up the opinion here because it’s a little opaque as the -- the third fact. It was whether or not the policy intentionally discriminates against a particular category of citizens who were also discriminated against in the political process leading to the legislator’s election. What that really is suggesting here -- because the underlying problem is a racial gerrymander which suggests there was intentional racial discrimination in the redistricting, the question is whether they intentionally discriminated against a particular category of citizens—which to me is intentional racial discrimination in the political process. And once you establish intentional racial discrimination, you’re not really going through the Rube Goldberg Device here of figuring out whether or not it’s a de facto officer. It’s just an equal protection violation under the United States Constitution, under the Fourteenth Amendment.

 

      So that’s a different problem if you’re picking on an intentional racial discrimination, straightforward, under the Fourteenth Amendment. So again, there could potentially be off-ramps, and I’ll be interested to see how the district court does them. Perhaps the district court’s conclusion is, well -- especially lowering the tax limit -- or the maximum income tax level from ten percent to seven percent, does not immunize legislators from democratic accountability. Maybe that’s the kind of off-ramp there. The voter ID law, again, it’s mixed and depends on how the court might phrase it. But it is sort of an interesting setup in ways that purport to be dealing with the de facto officer doctrine, but at the very end of the day, really very much feel like duplicating an intentional racial discrimination claim.

 

Jeanette Doran:  On a more practical note, if I may, I think it’ll be interesting to see exactly who at the superior court level is tackling these issues. Last week the plaintiffs filed a petition for writ of mandamus; it was dismissed. Once the court of appeals moved the case back down to the superior court level in September, the legislators had asked for the case to be assigned to a three-judge panel. So we, I think, need to figure out exactly what is going on at the superior court level before we make too many predictions about what off-ramps may or may not be pursued. So that’s just a quirk—procedural quirk—in the case at this point. We’ll have more information soon enough, but that’s going to have a huge impact on where the case goes.

 

Hon. Robert T. Numbers:  All right. Any other thoughts from our panelists today? All right. Well, great. Thank you, everyone, for being here today. Thanks to our panelists for their contributions, and thanks for all of our audience members for attending today. Jack, I’ll turn it back over to you for any closing remarks.

 

Jack Derwin:  Thanks so much, Judge, and I’ll extend you a thanks to the rest of the panelists as well. And thank you to our audience for being here today. You can check out our website at FedSoc.org or follow us on all the major social media platforms @fedsoc to stay up to date. Have a great Thanksgiving, everybody.

 

 

[Music and Narration]