by Dr. Andy Jackson
Director of the Civitas Center for Public Integrity, John Locke Foundation
The North Carolina Supreme Court heard oral arguments on February 14 in North Carolina NAACP v Moore. It is one of several court cases about voter ID in North Carolina.
What sets this case apart from the others is that it seeks to not only overturn the law establishing voter ID in North Carolina but also the voter ID constitutional amendment approved by voters in 2018. Plaintiff’s claim that since the United States Supreme Court struck down North Carolina’s legislative districts as racial gerrymanders in 2017, the General Assembly lost its authority to propose constitutional amendments for a vote of the people, a power enumerated to the General Assembly by Article XIII, Section 4 of the North Carolina Constitution.
If the court does take the extraordinary step of invalidating part of the North Carolina Constitution, it would not only be a blow against the specifically enumerated authority of a co-equal branch of government. It would also strike a blow against the power of the people of North Carolina.
The General Assembly placed six constitutional amendments before the people in 2018. Before and during the election in which those amendments were voted on, the people were informed of both the United States Supreme Court ruling overturning legislative districts and of the amendments themselves. The people then voted in favor of four amendments, including voter ID, and rejected two.
So, a North Carolina Supreme Court ruling overturning the voter ID amendment would not only strip away the General Assembly’s constitutional authority to propose amendments when it sees fit, but it would also take away the constitutional authority vested in the people of North Carolina to amend the constitution and nullify certified votes by the people.
Based on viewing the questions from the justices during oral arguments (which, admittedly, is speculative), it appears that justices Robin Hudson and Michael Morgan are prepared to jump with Justice Anita Earls off that precipice. Considering how hard plaintiffs tried to remove justices Phil Berger Jr. and Tamera Barringer from the case, we can assume that they will join Chief Justice Paul Newby to vote for judicial restraint.
That leaves Justice Sam Ervin IV as the likely deciding vote. Ervin IV also happens to be the only justice running for reelection this year. He will have to decide if he is willing to face the wrath of voters this fall after usurping their constitutional authority and nullifying their votes.