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In NC NAACP v. Moore, NC Supreme Court Limits Authority of General Assembly Elected Based On Unconstitutionally Gerrymandered Districts

August 24, 2022   |   Sam McGee

Summary by Sam McGee, NCAJ Legal Affairs Counsel

NC NAACP v. Moore, et. al

Opinion filed: Aug. 19, 2022

Attorney for the case: Kimberley Hunter

Amicus brief writers: Doug Abrams, Noah Abrams, Matthew Lee

North Carolina Supreme Court No. 261A18-3

The North Carolina Supreme Court has issued an opinion limiting the authority of a General Assembly elected based upon unconstitutionally gerrymandered districts to propose amendments to the North Carolina Constitution. The North Carolina State Conference of the National Association for the Advancement of Colored People (“NAACP”) challenged two amendments – the “Voter ID Amendment” and the “Tax Cap Amendment” – both of which narrowly received the super-majority of votes in the General Assembly required to place them on the ballot, and subsequently received a majority of the votes cast by the people. The trial court found these amendments void because (a) the General Assembly proposing them was the result of illegal racial gerrymandering and (b) without that illegal racial gerrymandering, the Legislature would never have met the constitutionally-required threshold to propose constitutional amendments. The Court of Appeals reversed, with a dissent by Judge Reuben Young, and the NAACP appealed to the North Carolina Supreme Court.

NCAJ filed an amicus brief which emphasized the basic tenet of Constitutional law that for every Constitutional violation there must be a remedy. Corum v. University of North Carolina, 330 N.C. 761, 782- 83, 413 S.E.2d 276, 289-90, cert. denied, 506 U.S. 985, 113 S.Ct. 493, 121 L.Ed.2d 431 (1992). The existence of a constitutional violation was clearly established by Covington v. North Carolina, 316 F.R.D. 117, 117 (M.D.N.C. 2016), aff’d, 137 S. Ct. 2211 (2017) (per curiam), which unquestionably held that numerous districts were drawn illegally. Thus, there must be a remedy, which here would be holding that an illegally constituted General Assembly cannot propose constitutional amendments. The brief contended that the Supreme Court had a duty to prevent a General Assembly built upon racial gerrymandering from passing amendments which would serve to consolidate its ill-gotten power, especially in consideration of the long history of oppression of Black North Carolinians. It also emphasized the that the “Voter ID Amendment” was unconstitutional in that the amendment, among other constitutional violations, targeted Black citizens of North Carolina in order to make it more difficult for them to vote.  

In a 4-3 decision along party lines, the Supreme Court reversed the Court of Appeals. However, the Court did not reinstate the trial court’s holding that both amendments were void, but instead remanded the case to the trial court to hold an evidentiary hearing and enter new findings of fact and conclusion of law as to certain considerations set forth in the opinion. Specifically, the Supreme Court directed that the trial court consider whether the votes of legislators from unconstitutionally gerrymandered districts could have been decisive in proposing the amendments. If not, the amendments should stand. If so, the trial court should then consider the nature of the proposed amendments and assess the risk that they would “(1) immunize legislators from democratic accountability; (2) perpetuate the ongoing exclusion of a category of voters from the political process; or (3) intentionally discriminate against a particular category of citizens who were also discriminated against in the political process leading to the legislators’ election.” If one or more of these factors are present, the Court held, the amendments should be ruled invalid.

About the Author

Sam McGee

Legal Affairs Counsel

Sam McGee

Legal Affairs Counsel

Sam McGee is a partner at Tin Fulton Walker & Owen, PLLC. He is a graduate of Yale Law School, Wake Forest University and Gerry Spence’s Trial Lawyers College.

Early in his career, Sam worked for both the United States Court of Appeals for the Eighth Circuit and the Supreme Court of North Carolina. During his 24 years of law practice, Sam has recovered over $100 million for his clients, including multiple seven figure verdicts, and recoveries of at least seven figures in North Carolina, Tennessee, Louisiana, Georgia and New Jersey. Sam has also handled numerous appeals, most notably being involved in three cases in two different states defeating binding arbitration for nursing home cases.  

For the majority of his career, Sam has been active in the North Carolina Advocates for Justice (NCAJ), serving two terms on the Board of Directors, two terms as a Section Chair, and multiple terms on the Legal Affairs Committee. He has also written two amicus briefs for NCAJ. Sam has served on the Amicus Committee of the American Association for Justice (AAJ), is on the Board of Directors of the Southern Trial Lawyers Association (STLA), and has taught CLEs and written published articles for all three of these organizations.