A perennial problem in gerrymandering cases is that, even when an illegal map is eventually struck down by the courts, the state will often administer one or more elections using the deficient map before the courts can intervene.
That effectively means illegally elected lawmakers will make new laws — sometimes for years. It also means partisans have little incentive not to gerrymander, because their illegal maps are likely to be in effect for at least one election.
On Friday, a North Carolina state court offered a radical and creative solution to this problem, invalidating two state constitutional amendments that were proposed by an illegally gerrymandered legislature after the state’s legislative maps were invalidated — but before a new election could remove lawmakers in gerrymandered seats from office.
Under the North Carolina Constitution, the state legislature may propose constitutional amendments with a 3/5s supermajority vote in both chambers. Such proposed amendments must then be ratified by a majority of the voters.
In June of 2018, about a year after the Supreme Court affirmed a lower court decision striking down many of North Carolina’s legislative districts as unconstitutional racial gerrymanders, state lawmakers proposed six amendments to the state’s constitution. Two of these amendments, a cap on income taxation and a voter ID requirement, were later ratified by voters.
In his opinion striking down these amendments, Judge G. Bryan Collins reasons that an illegally gerrymandered legislature cannot propose an amendment — at least after the state’s legislative maps were declared invalid by the Supreme Court of the United States.
The state constitution, Collins notes, provides that “the people of this State have the inherent, sole, and exclusive right of regulating the internal government and . . . of altering or abolishing their Constitution and form of government.” Yet, when the Supreme Court determined that the state’s legislative maps are invalid, the state’s “General Assembly lost its claim to popular sovereignty.”
“The unconstitutional racial gerrymander,” Collins reasoned, “tainted the three-fifths majorities required by the state Constitution before an amendment proposal can be submitted to the people for a vote, breaking the requisite chain of popular sovereignty between North Carolina citizens and their representatives.”
Judge Collins’ opinion is brief, but it appears to apply only to state constitutional amendments proposed after the state’s legislative maps are struck down. Ordinary legislation would likely survive under Collins’ reasoning. In that sense, Collins strikes a balance between the need for the state to be able to conduct business, and the need to ensure that an illegal majority in the state legislature does not enact laws which cannot be easily repealed by a future legislature.
It remains to be seen whether Collins’ opinion survives contact with higher courts — although it has a fighting chance in a state supreme court where Democrats will soon enjoy a 6-1 majority. It is highly unusual, to say the least, for a court to strike down the acts of a gerrymandered legislature — though Collins’ opinion is limited enough in scope that it can be read largely as a shield against illegitimate constitutional amendments.
Yet, while opinions like Collins’ are rare, Judge Collins also addressed a very real problem in gerrymandering cases. Without protections against lawmaking by legislators who owe their jobs to an illegal gerrymander, those legislators have every incentive to enact illegal maps and then ride them out through as many elections as possible before a court intervenes.