NC NAACP v. Moore

• Court: Supreme Court of North Carolina
• Decided: August 19, 2022
• Docket: 261A18-3
• Status: Published

Opinion

IN THE SUPREME COURT OF NORTH CAROLINA

2022-NCSC-99

No. 261A18-3

Filed 19 August 2022

NORTH CAROLINA STATE CONFERENCE OF THE NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE

v. TIM MOORE, in his official capacity, and PHILIP BERGER, in his official capacity.

Appeal pursuant to N.C.G.S. § 7A-30(2) from the decision of a divided panel of

the Court of Appeals, 273 N.C. App. 452 (2020), reversing an order entered on 22

February 2019 by Judge G. Bryan Collins, Jr. in Superior Court, Wake County. Heard

in the Supreme Court on 14 February 2022.

Southern Environmental Law Center, by Kimberley Hunter and David Neal; and Irving Joyner; and Forward Justice, by Daryl V. Atkinson, Caitlin Swain, and Kathleen E. Roblez, for plaintiff-appellant.

Nelson Mullins Riley & Scarborough LLP, by D. Martin Warf and Noah H. Huffstetler, III, for defendant-appellees.

ACLU of North Carolina Legal Foundation, by Jaclyn Maffetore, Leah J. Kang, and Kristi L. Graunke, for American Civil Liberties Union of North Carolina, amicus curiae.

Paul Hastings, LLP, by Lindsey W. Dieselman, for Brennan Center for Justice at New York University School of Law, amicus curiae.

Appellate Advocacy Clinic, Wake Forest University School of Law, by John J. Korzen, for Democracy North Carolina, amicus curiae.

Womble Bond Dickinson (US) LLP, by Pressly M. Millen, for Former Chairs of the North Carolina Judicial Standards Commission, amici curiae. NAACP V. MOORE

Opinion of the Court

Abrams & Abrams, by Douglas B. Abrams and Noah B. Abrams; and Whitfield Bryson LLP, by Matthew E. Lee, for North Carolina Advocates for Justice, amicus curiae.

Jeanette K. Doran for North Carolina Institute for Constitutional Law and John Locke Foundation, amici curiae.

Robinson, Bradshaw & Hinson, P.A., by Robert E. Harrington, Adam K. Doerr, Erik R. Zimmerman, and Travis S. Hinman, for North Carolina Legislative Black Caucus, amicus curiae.

Wallace & Nordan, L.L.P., by John R. Wallace and Lauren T. Noyes; and Freshfields Bruckhaus Deringer US LLP, by Aaron R. Marcu, pro hac vice, and Shannon K. McGovern, pro hac vice, for North Carolina Legislative Black Caucus, amicus curiae.

Tharrington Smith, LLP, by Colin A. Shive and Robert F. Orr, for North Carolina Professors of Constitutional Law, amici curiae.

Stam Law Firm, PLLC, by R. Daniel Gibson; and John V. Orth, pro se, for Professor John V. Orth, amicus curiae.

Ellen Murphy for North Carolina Professors of Professional Responsibility, amici curiae.

Michael G. Schietzelt for Robert H. Edmunds Jr., Barbara A. Jackson, and Mark Martin, Retired Former Justices of the Supreme Court of North Carolina, amici curiae.

Brooks, Pierce, McLendon, Humphrey & Leonard, L.L.P., by Daniel F. E. Smith, Jim W. Phillips, Jr., Eric M. David, and Kasi W. Robinson, for Roy Cooper, Governor of the State of North Carolina, amicus curiae.

Law Office of Christopher J. Heaney, PLLC, by Christopher J. Heaney, for Scholars of Judicial Ethics and Professional Responsibility, amici curiae.

EARLS, Justice. NAACP V. MOORE

¶1 This case involves completely unprecedented circumstances that give rise to a

novel legal issue directly implicating two fundamental principles upon which North

Carolina’s constitutional system of government is predicated: the principles of

popular sovereignty and democratic self-rule. The issue is whether legislators elected

from unconstitutionally racially gerrymandered districts possess unreviewable

authority to initiate the process of changing the North Carolina Constitution,

including in ways that would allow those same legislators to entrench their own

power, insulate themselves from political accountability, or discriminate against the

same racial group who were excluded from the democratic process by the

unconstitutionally racially gerrymandered districts.

¶2 In the final week of the final regular legislative session preceding the 2018

general election, a General Assembly that was composed of a substantial number of

legislators elected from districts that the United States Supreme Court had

conclusively determined to have resulted from unconstitutional racial

gerrymandering enacted legislation presenting six constitutional amendments to

North Carolina voters. Some of these measures passed in the General Assembly by

notably narrow margins. By this time, it had already been established that twenty-

eight legislative districts were drawn in a manner that violated the Equal Protection

Clause of the United States Constitution, see Covington v. North Carolina, 316 F.R.D.

117, 124 (M.D.N.C. 2016), aff’d, 137 S. Ct. 2211 (2017), and many other districts had NAACP V. MOORE

also already been redrawn to remedy this unconstitutional racial gerrymander,

see North Carolina v. Covington, 138 S. Ct. 2548 (2018) (per curiam). The two

amendments at issue in this case—Session Law 2018-119 (the Tax Cap Amendment)

and Session Law 2018-128 (the Voter ID Amendment)—cleared the required three-

fifths supermajority threshold by one and two votes in the House and by four and

three votes in the Senate, respectively. Both amendments were ultimately ratified by

a majority of North Carolina voters. In that same election, conducted using newly

drawn legislative districts, the voters denied to any political party a three-fifths

supermajority in either the North Carolina House or Senate.

¶3 What is extraordinary about these events is not that a legislative body was

composed in part of legislators elected from unconstitutional districts. That has

occurred on numerous occasions in recent years just in North Carolina alone. See, e.g.,

Stephenson v. Bartlett, 357 N.C. 301, 314 (2003) (affirming trial court’s determination

that the 2002 revised legislative redistricting plans were unconstitutional); Harris v.

McCrory, 159 F. Supp. 3d 600, 604 (holding that two North Carolina Congressional

districts were unconstitutional racial gerrymanders) (M.D.N.C. 2016), aff’d sub nom.

Cooper v. Harris, 137 S. Ct. 1455 (2017). Rather, what makes this case so unique is

that the General Assembly, acting with the knowledge that twenty-eight of its

districts were unconstitutionally racially gerrymandered and that more than two-

thirds of all legislative districts needed to be redrawn to achieve compliance with the NAACP V. MOORE

Equal Protection Clause, chose to initiate the process of amending the state

constitution at the last possible moment prior to the first opportunity North

Carolinians had to elect representatives from presumptively constitutional

legislative districts. Indeed, neither of the parties, nor any of the amici curiae, have

identified a single previous instance of a legislative body composed of a substantial

number of legislators elected from unconstitutional districts attempting to exercise

powers relating to the passage of constitutional amendments after it had been

conclusively established that numerous districts were unconstitutional.

¶4 The precise legal question before us is whether a General Assembly composed

of a substantial number of legislators elected due to unconstitutional gerrymandering

may exercise the sovereign power delegated by the people of North Carolina to the

legislature under article XIII, section 4 of the North Carolina Constitution, which

authorizes the General Assembly to propose constitutional amendments “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 broader

question is whether there are any limits on the authority of legislators elected due to

unconstitutional racial gerrymandering to alter or abolish “the fundamental law of

the State [that] defines the form and concept of our government.” Bazemore v. Bertie

Cnty. Bd. of Elections, 254 N.C. 398, 402–03 (1961). These questions cut to the core

of our constitutional system of government: if legislators who assumed power in a NAACP V. MOORE

manner inconsistent with constitutional requirements possess unreviewable

authority to initiate the process of altering or abolishing the constitution, then the

fundamental principle that all political power resides with and flows from the people

of North Carolina would be threatened.

¶5 We conclude that article I, sections 2 and 3 of the North Carolina Constitution

impose limits on these legislators’ authority to initiate the process of amending the

constitution under these circumstances. Nonetheless, we also conclude that the trial

court’s order in this case invalidating the two challenged amendments swept too

broadly. Because the legislators elected due to unconstitutional racial

gerrymandering retained the authority needed to avoid “chaos and confusion in

government,” the trial court should have considered whether invalidating both the

Voter ID Amendment and the Tax Cap Amendment was necessary “upon balancing

the equities” of the situation. Dawson v. Bomar, 322 F.2d 445, 447 (6th Cir. 1963).

¶6 In particular, the trial court should have examined as a threshold matter

whether the legislature was composed of a sufficient number of legislators elected

from unconstitutionally gerrymandered districts—or from districts that were made

possible by the unconstitutional gerrymander—such that the votes of those

legislators could have been decisive in passing the challenged enactments. If not, no

further inquiry is necessary, and the challenged amendments must be left

undisturbed. In this case, however, the record is clear that votes of legislators from NAACP V. MOORE

unconstitutionally gerrymandered districts could have been decisive. Therefore, the

trial court needed to also consider three additional questions: 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. Accordingly,

we reverse the decision of the Court of Appeals that reversed the trial court’s order

declaring the Voter ID and Tax Cap Amendments void and remand to the superior

court for further proceedings consistent with the guidance set forth in this opinion.

I. Background

¶7 In January 2011, the General Assembly began the process of conducting a

statewide redistricting of the North Carolina House of Representatives and Senate

based on the 2010 federal decennial census, pursuant to article II, sections 3 and 5 of

the North Carolina Constitution. Six months later, the General Assembly approved

and enacted House and Senate redistricting plans largely drafted in secret by the

General Assembly’s private counsel. See Covington v. North Carolina (Covington I),

316 F.R.D. 117, 126 (M.D.N.C. 2016), aff’d, 137 S. Ct. 2211 (2017); see also S.L. 2011-

402, 2011 N.C. Sess. Laws 1804; S.L. 2011-404, 2011 N.C. Sess. Laws 1936. At the NAACP V. MOORE

time, North Carolina was still subject to Section Five of the Voting Rights Act, so the

General Assembly sought and obtained preclearance from the United States

Department of Justice. Covington I, 316 F.R.D. at 127.

¶8 On 19 May 2015, a group of registered North Carolina voters brought suit in

the Middle District of North Carolina alleging that nine Senate districts and nineteen

House districts were unconstitutional racial gerrymanders in violation of the Equal

Protection Clause of the Fourteenth Amendment to the United States Constitution.

A three-judge panel of the federal district court agreed with the plaintiffs that all

twenty-eight districts were unconstitutional. See id. at 177. The court found

“overwhelming and consistent evidence” that the drafters of the enacted plans

intentionally prioritized race over traditional neutral districting criteria. Id. at 130.

The court also concluded that the legislative defendants “have not carried 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.” Id. at

176. Nevertheless, the court denied the plaintiffs’ request for immediate injunctive

relief postponing the upcoming 2016 general elections and instead ordered the

General Assembly “to draw remedial districts in their next legislative session.” Id. at

177. On appeal, the United States Supreme Court affirmed. North Carolina v.

Covington, 137 S. Ct. 2211 (2017).

¶9 Following the 2016 elections, the three-judge district court panel shortened the NAACP V. MOORE

terms of all sitting legislators and directed the legislature to hold special elections

under redrawn constitutionally compliant district maps in 2017. Covington v. North

Carolina, 2016 WL 7667298, at *2–3 (M.D.N.C. Nov. 29, 2016) (order). The United

States Supreme Court vacated the district court’s remedial order on the grounds that

the court had “addressed the balance of equities in only the most cursory fashion” and

failed to “adequately grapple[ ] with the interests on both sides.” North Carolina v.

Covington, 137 S. Ct. 1624, 1626 (2017) (per curiam). On remand, the district court

permitted the legislators elected in 2016 to complete their terms. Covington v. North

Carolina (Covington II), 270 F. Supp. 3d 881, 902 (M.D.N.C. 2017). The court noted

that it was “undisputed that this violation requires redrawing nearly 70% of the state

House and Senate districts, affecting over 80% of the state’s voters. This constitutes

one of the most widespread racial gerrymanders ever held unconstitutional by a

federal court . . . .” Id. at 896–97.

¶ 10 The district court also considered the plaintiffs’ argument that the legislators

elected due to the unconstitutional apportionment were “usurpers” who could not

validly exercise legislative powers under North Carolina law. The court agreed with

the plaintiffs that

[t]he widespread scope of the constitutional violation at issue—unjustifiably relying on race to draw lines for legislative districts encompassing the vast majority of the state’s voters—also means that the districting plans intrude on popular sovereignty. . . . By unjustifiably relying on race to distort dozens of legislative district lines, and NAACP V. MOORE

thereby potentially distort the outcome of elections and the composition and responsiveness of the legislature, the districting plans interfered with the very mechanism by which the people confer their sovereignty on the General Assembly and hold the General Assembly accountable.

Id. at 897. Still, the court concluded that there existed “no authority from [North

Carolina] courts definitively holding that a legislator elected in an unconstitutionally

drawn district is a usurper.” Id. at 901. Thus, the court declined to resolve the

plaintiffs’ usurpers argument, explaining that because the theory “implicates an

unsettled question of state law, [it] is more appropriately directed to North Carolina

courts, the final arbiters of state law.” Id.

¶ 11 Just before the legislators elected in 2016 left office, the General Assembly

initiated the process of amending the North Carolina Constitution. Article XIII,

section 4 authorizes the General Assembly to put constitutional amendments on the

ballot for approval by the voters “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 plaintiff in this case—the North Carolina State

Conference of the National Association for the Advancement of Colored People (NC

NAACP)—filed suit in state court. Plaintiff claimed that this particular General

Assembly could not invoke the legislature’s authority under article XIII, section 4

because it was illegally composed of and tainted by usurpers who could not NAACP V. MOORE

legitimately exercise the people’s sovereign power.1

¶ 12 As described in unchallenged findings of fact contained in the trial court order

giving rise to this appeal:

12. In the final two days of the 2018 regular legislative session, the General Assembly passed six bills that would place six constitutional amendments before the voters: Session Laws 2018-96 (Right to Hunt and Fish Amendment), 110 (Victim’s Rights amendment), 117 (First Board of Elections Amendment), 118 (First Judicial Vacancies Amendment), 119 (Tax Cap Amendment), and 128 (Voter ID amendment).

13. Session Law 2018-128 (Voter ID amendment) passed the North Carolina House of Representatives by a vote of 74–43 and the North Carolina Senate by a vote of 33–12. In the House, the total number of aye votes was just two votes over [the] three-fifths majority required for a constitutional amendment, and in the Senate the number was just three votes over the required margin.

14. Session Law 2018-119 (Tax Cap amendment) passed the North Carolina Senate by a vote of 34–13 and passed the North Carolina House of Representatives by a vote of 73–45. In the House, the number was just one vote over the three-fifths majority required for a constitutional amendment, and in the Senate the number was just four votes over the required margin.

15. On August 6, 2018, the NC NAACP and CAC filed suit against the leadership of the North Carolina General Assembly in their official capacities (“Legislative Defendants”) and the North Carolina Bipartisan State Board of Elections and Ethics Enforcement and all Board members in their official capacities (“State Board of

1 Clean Air Carolina (CAC) was also initially a plaintiff in this case; however, the trial court allowed the defendants’ motion to dismiss CAC for lack of standing, and that ruling is not before this Court on appeal. NAACP V. MOORE

Elections”) challenging four of the amendment proposals: the First Board of Elections Amendment, the First Judicial Vacancies Amendment, the Tax Cap Amendment, and the Voter ID Amendment. . . .

....

21. On November 2, 2018, Plaintiffs filed a motion for partial summary judgment only as to their claim that the illegally-constituted General Assembly lacks the authority to propose constitutional amendments.

22. On November 6, 2018, an election was held in North Carolina, and the four constitutional amendments challenged in the Second Amended Complaint were on the ballot.

23. The Second Judicial Vacancies Amendment, proposed in Session Law 2018-132, and the Second Board of Elections Amendment, proposed in Session Law 2018- 133, did not attain the required majority of votes to pass into law.

24. The Voter ID amendment, proposed in Session Law 2018-128, passed.

25. The Tax Cap amendment, proposed in Session Law 2018-119, passed.

26. The November 6, 2018 election was the first to be held under the remedial maps approved by the federal courts to correct the 2011 unconstitutional racial gerrymander. Covington v. North Carolina, 283 F. Supp. 3d 410, 458 (M.D.N.C. 2018), aff’d in part, rev’d in part, 138 S. Ct. 2548 (U.S. 2018).

27. On December 28, 2018, Plaintiffs voluntarily dismissed their claims against Defendant State Board of Elections. Plaintiffs also voluntarily dismissed as moot their claims related to the Second Judicial Vacancies Amendment, proposed in Session Law 2018-132, and the NAACP V. MOORE

Second Board of Elections Amendment, proposed in Session Law 2018-133.

After determining that NC NAACP had standing to bring suit, the trial court entered

the following conclusions of law:

3. Whether an unconstitutionally racially- gerrymandered General Assembly can place constitutional amendments onto the ballot for public ratification is an unsettled question of state law and a question of first impression for North Carolina courts.

5. N.C. Const art I sec. 3 states that the people of North Carolina “have the inherent, sole, and exclusive right of regulating the internal government and . . . of altering . . . their Constitution and form of government whenever it may be necessary to their safety and happiness” Id. § 3 (emphasis added). N.C. Const. art XIII mandates that this may be accomplished only when a three-fifths supermajority of both chambers of the General Assembly vote to submit a constitutional amendment for public ratification, and the public then ratifies the amendment. The requirements for amending the state Constitution are unique and distinct from the requirements to enact other legislation. The General Assembly has the authority to submit proposed amendments to the Constitution only insofar as it has been bestowed with popular sovereignty.

6. On June 5, 2017, it was adjudged and declared by the United States Supreme Court that the General Assembly was an illegally gerrymandered body. At that time, following “the widespread, serious, and longstanding . . . constitutional violation—among the largest racial gerrymanders ever encountered by a federal court—” the General Assembly lost its claim to popular sovereignty. Covington, 270 F. Supp. 3d at 884. The three-judge panel in [Covington] ruled that, under the illegal racial gerrymander, “a large swath of North Carolina citizens . . . NAACP V. MOORE

lack a constitutionally adequate voice in the State’s legislature . . . .” Covington v. North Carolina, 1:15CV399, 2017 WL 44840 (M.D.N.C. Jan. 4, 2017) (order for special elections vacated and remanded, North Carolina v. Covington 137 S. Ct. 1624 (June 5, 2017)).

7. Curing this widespread and sweeping racial gerrymander required that over two-thirds of the North Carolina House and Senate districts be redrawn. Thus, the unconstitutional racial gerrymander 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.

8. Accordingly, the constitutional amendments placed on the ballot on November 6, 2018 were approved by a General Assembly that did not represent the people of North Carolina. Indeed, “[b]y unjustifiably relying on race to distort dozens of legislative district lines, and thereby potentially distort the outcome of elections and the composition and responsiveness of the legislature, the districting plans [under which that General Assembly had been elected] interfered with the very mechanism by which the people confer their sovereignty on the General Assembly and hold the General Assembly accountable.” [Covington II,] 270 F. Supp. 3d at 897. The November 2018 general elections under remedial legislative maps were “needed to return the people of North Carolina to their sovereignty.” Id.

9. Defendants argue that, even following the Covington decision, the General Assembly maintained authority to enact legislation so as to avoid “chaos and confusion.” See Dawson v. Bomar, 322 F.2d 445 (6th Cir. 1963). It will not cause chaos and confusion to declare that Session laws 2018-119 and 2018-128 and their corresponding amendments to the constitution are void ab initio.

10. An illegally constituted General Assembly does NAACP V. MOORE

not represent the people of North Carolina and is therefore not empowered to pass legislation that would amend the state’s Constitution.

11. N.C. Session Laws 2018-119 and 2018-128, and the ensuing constitutional amendments, are therefore void ab initio.

The trial court entered partial summary judgment in plaintiff’s favor, invalidating

the two challenged constitutional amendments. Legislative Defendants appealed.

¶ 13 On appeal, a majority of the Court of Appeals reversed. The two judges in the

majority wrote separately. In the majority opinion, Judge Dillon held that plaintiff’s

usurpers theory was deficient on multiple grounds, including that (1) the judiciary

lacked authority under separation-of-powers principles to preclude elected members

of the General Assembly from exercising a legislative power; (2) plaintiff’s claim was

nonjusticiable; and (3) legislators elected to represent districts subsequently deemed

unconstitutional were, at a minimum, de facto officers entitled to exercise all powers

delegated to the legislative branch. N.C State Conf. of NAACP v. Moore (NC NAACP),

273 N.C. App. 452, 461–64 (2020).

¶ 14 Judge Stroud wrote separately to “reach the same result on a more limited

basis.” Id. at 466 (Stroud, J., concurring in the result). In Judge Stroud’s view, the

trial court erred because the decisions of the Middle District of North Carolina and

the United States Supreme Court in the Covington litigation placed “no limitations

on the General Assembly’s authority to act” and there was “no North Carolina law to NAACP V. MOORE

support the trial court’s legal conclusions.” Id. Judge Stroud also predicted that the

trial court’s order would engender chaos, because there was “no law” and “no logical

way to limit the effect of the electoral defects noted in Covington to one, and only one,

type of legislative action, and more specifically to just these two particular

amendments which plaintiff opposes.” Id. at 475. She concluded that no provisions of

the North Carolina Constitution “support [the trial court’s] conclusion that an

illegally gerrymandered General Assembly lacks either de facto or de jure authority

to approve a bill for submission of constitutional amendments to popular vote . . .

[while retaining the] full authority to pass any other kind of legislation.” Id. at 478.

¶ 15 Judge Young dissented. According to the dissent, the case “present[ed] a

compelling issue of first impression” centered on “a narrow question, but one vital to

our democracy: Can a legislature, which has been held to be unconstitutionally

formed due to unlawful gerrymandering, act to amend the North Carolina

Constitution?” Id. at 479 (Young, J., dissenting). In the dissent’s view, the answer

was no:

The ramifications of such an act are clear. If an unlawfully-formed legislature could indeed amend the Constitution, it could do so to grant itself the veneer of legitimacy. It could seek, by offering amendments for public approval, to ratify and make lawful its own unlawful existence. Such an act would necessarily be abhorrent to all principles of democracy.

Id. Instead, the dissent reasoned that, post-Covington, the General Assembly was NAACP V. MOORE

only “permitted to engage in the ordinary business of drafting and passing legislation,

regardless of any issues of gerrymandering, as to require otherwise would create

‘chaos and confusion.’ ” Id. at 482. But amending the constitution “is not an ordinary

matter—it is a most extraordinary matter, and one which goes beyond the day-to-day

affairs of the General Assembly.” Id. Therefore, the dissent would have held that “the

General Assembly, found to be unconstitutionally formed based on unlawful

gerrymandering, could not attempt to amend our Constitution without first

comporting itself to the requirements thereof.” Id. at 483.

II. Justiciability

¶ 16 At the outset, we address the Court of Appeals’ conclusion, advanced by

Legislative Defendants before this Court, that plaintiff’s claim is nonjusticiable.

Courts do not resolve claims raising “purely political question[s].” Hoke Cnty. Bd. of

Educ. v. State, 358 N.C. 605, 618 (2004). As we recently explained, these kinds of

claims

are “nonjusticiable under separation of powers principles.” Hoke Cnty. Bd. of Educ. v. State, 358 N.C. 605, 618 (2004). Purely political questions are those questions which have been wholly committed to the “sole discretion” of a coordinate branch of government, and those questions which can be resolved only by making “policy choices and value determinations.” Bacon v. Lee, 353 N.C. 696, 717 (2001) (quoting Japan Whaling Ass’n v. Am. Cetacean Soc’y, 478 U.S. 221, 230 (1986)). Purely political questions are not susceptible to judicial resolution. When presented with a purely political question, the judiciary is neither constitutionally empowered nor institutionally competent NAACP V. MOORE

to furnish an answer. See Hoke Cnty. Bd. of Educ., 358 N.C. at 638–39 (declining to reach the merits after concluding that “the proper age at which children should be permitted to attend public school is a nonjusticiable political question reserved for the General Assembly”).

Harper v. Hall, 380 N.C. 317, 2022-NCSC-17, ¶ 100.2

¶ 17 In support of the conclusion that this case presented only nonjusticiable

political questions, the Court of Appeals relied principally on Leonard v. Maxwell,

216 N.C. 89 (1939).3 In Leonard a litigant challenged the validity of a statute on

various grounds including that the General Assembly which enacted the statute “was

not properly constituted because no reapportionment was made at the first session

after the last census as required by Art. II, secs. 4, 5 and 6 of the Constitution.” Id. at

98. This Court explained that we would not reach the merits of this argument because

the question it presented “is a political one, and there is nothing the courts can do

2 The United States Supreme Court granted a petition for writ of certiorari to review claims relating to North Carolina’s congressional districts, but the issue in that case is unrelated to the question of the justiciability of state legislative redistricting claims as decided in Harper. See Moore v. Harper, 595 U.S. ____ (Jun. 30, 2022) (No. 21-1271). 3 In addition to Leonard, the Court of Appeals majority opinion also appears to have

relied upon various cases in which this Court “declared a district to be illegally gerrymandered based on race . . . . [but] did not enjoin our General Assembly, nor the representative elected from the illegally-drawn district, from exercising legislative authority.” NC NAACP, 273 N.C. App. at 462 (citing Pender County v. Bartlett, 361 N.C. 491 (2007) and Stephenson v. Bartlett, 355 N.C. 354 (2002)). The Court of Appeals also noted its view that “[t]he federal panel in Covington did not believe that the 2017-18 Session of our General Assembly lost legitimacy, ordering the body it declared to be illegally gerrymandered to redraw the districts.” Id. (citing Covington, 267 F. Supp. 3d at 665). But these cases, to the extent they are relevant, speak to the potential merits of the plaintiff’s arguments or the factors a court might weigh when entering a remedial order—none of these cases in any way support the notion that the type of claim plaintiff has brought is nonjusticiable in state court. NAACP V. MOORE

about it,” as courts “do not cruise in nonjusticiable waters.” Id. Although it addressed

a claim relating to the validity of a statute passed by a malapportioned legislature,

Leonard is inapposite here for two reasons.

¶ 18 First, Leonard predates the United States Supreme Court’s decision in Baker

v. Carr, 369 U.S. 186 (1962), which established that claims challenging a legislature’s

failure to reapportion itself were justiciable in federal court. While Leonard was

articulating this Court’s own justiciability doctrine, it is apparent that Leonard

reflected the then-existing consensus that all claims relating to a legislature’s

authority to reapportion itself were categorically nonjusticiable. Indeed, the cases the

Court cites in Leonard in support of its justiciability holding are largely irreconcilable

with the modern redistricting jurisprudence of the United States Supreme Court and

this Court.4 Since Baker v. Carr, this Court has routinely reviewed claims asserting

that legislative districts violate the United States and North Carolina Constitutions,

and we have routinely entered judgments or affirmed orders designed to remedy

4 Two of the three cases the Court relied upon in Leonard adopt the premise that courts lack authority to remedy an unconstitutional reapportionment scheme. See People ex rel. Fergus v. Blackwell, 342 Ill. 223, 225 (1930) (“We have held that this court has no power, under the Constitution, to compel the Legislature to reapportion the state, as required by the Constitution.”); State ex rel. Cromelien v. Boyd, 36 Neb. 181 (1893) (“It would seem but justice that [the constitutionally mandated reapportionment] should take effect in the succeeding congress, and we may confidently trust to that spirit of fairness so characteristic of the American people to correct the wrong. The courts, however, have no authority to [issue a remedy].”). The third case held that the question of whether a state adhered to the “proper procedure” in ratifying a proposed constitutional amendment was a nonjusticiable political question. Coleman v. Miller, 307 U.S. 433, 458 (1939) (Black, J., concurring). NAACP V. MOORE

proven constitutional deficiencies. See, e.g., Harper, 2022-NCSC-17, ¶ 113;

Stephenson v. Bartlett, 355 N.C. 354 (2002). Of course, the claim at issue in this case

is not a claim that the General Assembly is unconstitutionally apportioned—that

question was definitively answered by the Covington decisions. Nevertheless, because

Leonard was predicated on a view of judicial authority that has since been thoroughly

repudiated, Leonard has limited relevance and is not persuasive authority with

respect to justiciability.

¶ 19 Second, the nature of the claim at issue in Leonard was not analogous to the

claim presented in this case. In the Court of Appeals’ assessment, Leonard rejected

the argument that the judiciary is empowered “to declare retroactively that our

General Assembly lacked the authority to pass bills simply because some legislators

were elected from unconstitutionally-designed districts, stating, ‘[q]uite a

devastating argument, if sound.’ ” NC NAACP, 273 N.C. App. at 461 (quoting

Leonard, 216 N.C. at 89). But the argument that this Court deemed “devastating . . .

if sound” in Leonard was not the argument that a court possesses the authority to

retroactively invalidate a statute because the legislature that enacted the statute was

malapportioned; rather, it was the argument that because the constitution required

the General Assembly to reapportion itself “at the first regular session convening

after the return of every decennial census of population taken by order of Congress,”

N.C. Const. art II, §§ 3, 5, the General Assembly’s failure to reapportion itself during NAACP V. MOORE

the first regular session after the decennial census meant there could not be a

legitimately constituted General Assembly unless and until the North Carolina

Constitution was amended to provide for another manner of reapportionment.

See Leonard, 216 N.C. at 98–99 (“In other words, as the first session of the General

Assembly after the 1930 census was the session directed by the Constitution to make

the reapportionment, and failed to do so, it is suggested that no other session is

competent to make the reapportionment . . . and that henceforth no de jure or legally

constituted General Assembly can again be convened under the present Constitution.

Quite a devastating argument, if sound.”). An analogous claim in the context of this

case would be the assertion that a constitutional amendment is necessary to create a

new apportionment process in order to reconstitute the General Assembly as a

legitimate body that can exercise legislative powers because the legislature failed to

enact lawful reapportionment statutes immediately following the 2010 census. That

is not an argument made by any party that is presently before this Court.

¶ 20 Absent precedent directly addressing the justiciability of the precise claim

advanced by NC NAACP, we turn to general justiciability principles. This Court has

previously

recognized two criteria of political questions: (1) where there is “a textually demonstrable constitutional commitment of the issue” to the “sole discretion” of a “coordinate political department[,]” Bacon v. Lee, 353 N.C. 696, 717 (2001) (quoting Baker v. Carr, 369 U.S. 186, 217, 82 S. Ct. 691 (1962)); and (2) those questions that can be NAACP V. MOORE

resolved only by making “policy choices and value determinations[,]” id. (quoting Japan Whaling Ass'n v. American Cetacean Soc’y, 478 U.S. 221, 230 (1986)).

Harper, 2022-NCSC-17, ¶ 112 (alteration in original). Legislative Defendants have

failed to demonstrate that either circumstance is present here.

¶ 21 As a general matter, this Court has routinely reviewed and resolved claims

alleging that an individual who purports to exercise the powers assigned to a

particular governmental office may not legitimately do so. See, e.g., State v. Porter,

272 N.C. 463 (1968); Smith v. Town of Carolina Beach, 206 N.C. 834 (1934); People

ex rel. Norfleet v. Staton, 73 N.C. 546 (1875); Keeler v. City of Newbern, 61 N.C. 505

(1868). In these types of cases, the question is whether the individual claiming the

powers of an office assumed that office in a manner satisfying the legal prerequisites

for holding office, and if not, whether parties are nonetheless bound by prior actions

of the putative officeholder. Once it has been conclusively determined that an

officeholder did not assume office through a procedure that complied with all legal

prerequisites, courts consider the applicability and scope of common law doctrines

like the de facto officer doctrine to determine the validity of actions undertaken by

the putative officeholder. See, e.g., Porter, 272 N.C. at 467. The scope and applicability

of a common law doctrine is a quintessential legal question this Court has long been

tasked with resolving.

¶ 22 The fact that this case involves legislators and legislative authority does not NAACP V. MOORE

convert plaintiff’s claim into one that requires us to make “policy choices and value

determinations.” The question presented in this case is not which theory of

government should be adopted and which institutional design implemented to ensure

that power is exercised in an effective and responsive manner—those are

quintessentially political questions, and ones that have been answered by the people

of North Carolina through their adoption of the North Carolina Constitution. Instead,

the question is whether legislators elected due to an unconstitutional racial

gerrymander could, consistent with the North Carolina Constitution, legitimately

exercise the sovereign power assigned to the legislature to initiate the process of

amending the constitution. This issue, at its core, is one involving the interpretation

and application of constitutional provisions. See N.C. Const. art. I, §§ 2-3. Answering

this question requires us to examine the constitutional provisions enacting a system

of government founded on principles of popular sovereignty and democratic self-rule

and to then determine if those provisions limit the authority of legislators who

assumed office in a manner violative of the United States and North Carolina

Constitutions. That is a question that this Court may, and indeed must, answer.

See, e.g., Corum v. Univ. of N.C., 330 N.C. 761, 783 (1992) (“This Court is the ultimate

interpreter of our State Constitution.”); State ex rel. McCrory v. Berger, 368 N.C. 633,

638 (2016) (“This Court construes and applies the provisions of the Constitution of

North Carolina with finality.”). NAACP V. MOORE

III. Analysis

¶ 23 Although plaintiff’s claim is novel, our standard of review is familiar. We

review a trial court’s order granting or denying summary judgment de novo. See, e.g.,

Craig v. New Hanover Cnty. Bd. of Educ., 363 N.C. 334, 337 (2009). The sole question

presented on appeal is a pure question of constitutional law, which we also review de

novo. See State ex rel. McCrory, 368 N.C. at 639. We presume that when the General

Assembly acts, it acts within constitutional boundaries, and we will only strike down

an act of the General Assembly if the constitutional violation is “plain and clear.” Id.

To determine whether a constitutional violation has occurred, “we look to the text of

the constitution, the historical context in which the people of North Carolina adopted

the applicable constitutional provision, and our precedents.” Id.

¶ 24 The North Carolina Constitution itself provides guidance to this Court when

we are called upon to interpret constitutional provisions protecting the people of

North Carolina’s fundamental rights: “A frequent recurrence to fundamental

principles is absolutely necessary to preserve the blessings of liberty.” N.C. Const.

art. I, § 35. This “solemn warning” has long informed our interpretation of the

“fundamental guaranties” contained in our constitution’s Declaration of Rights. State

v. Ballance, 229 N.C. 764, 768 (1949). Thus, in examining plaintiff’s claim, we begin

and end with the principles codified in numerous provisions of our constitution that

function as the beating heart of North Carolina’s system of government: the principles NAACP V. MOORE

of popular sovereignty and democratic self-rule.

A. The principles of popular sovereignty and democratic self-rule.

¶ 25 In North Carolina, our constitution is “the framework for democracy.”

Bazemore, 254 N.C. at 403. Under our constitution, “[a]ll 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.” N.C.

Const. art. I., § 2. Our constitution also reserves to the “people of this State . . . the

inherent, sole, and exclusive right . . . of altering or abolishing their Constitution and

form of government.” Id., art. I, § 3. These provisions of the North Carolina

Constitution express and safeguard the people of North Carolina’s “revolutionary

faith in popular sovereignty” as the theory of government that best promotes the

liberty and equality of all persons. John V. Orth & Paul Martin Newby, The North

Carolina Statte Constitution 48 (2d ed. 2013). In short, they establish that there is no

source of political power other than the people of North Carolina; nobody but the

people of North Carolina possesses the authority to redefine the purpose and

structure of North Carolina’s system of government.

¶ 26 In the system of government our constitution prescribes, the legislature

“represent[s] the untrammeled will of the people” and “the expression of the people’s

will can only be made by legislation.” State ex rel. Abbott v. Beddingfield, 125 N.C.

256, 270 (1899). Yet there is no legislative power independent of the people. Instead, NAACP V. MOORE

the constitution defines and structures political processes that allow individuals to

assume offices to which the people of North Carolina have delegated sovereign power.

See Harper, 2022-NCSC-17, ¶ 130 (“[U]nder the principle of popular sovereignty, the

‘political power’ of the people is channeled through the proper functioning of the

democratic processes of our constitutional system to the people’s representatives in

government.” (citing N.C. Const. art I, § 2)). These processes enable the “sovereign

power” to be “exercised by [the People’s] representatives in the General Assembly,”

but at all times the sovereign power “resides with the people.” State ex rel. Ewart v.

Jones, 116 N.C. 570, 570 (1895) (emphases added).

¶ 27 The principles of popular sovereignty and democratic self-rule as embodied in

article I, sections 2 and 3 mean that individuals can only exercise the sovereign power

that the people have transmitted to the legislature if they validly hold legislative

office. 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. See Burke v. Elliott,

26 N.C. 355, 361 (1844) (“[A] party taking upon himself to execute process must be a

legal officer for that purpose . . . .”). The legitimacy of any individual officer’s claim to

exercise sovereign power depends upon the legitimacy of the process by which that

individual came to assume the office to which sovereign power has been delegated. NAACP V. MOORE

B. The process of amending the North Carolina Constitution.

¶ 28 Consistent with the principles of popular sovereignty and democratic self-rule,

only the people can change the way sovereign power is allocated and exercised within

North Carolina’s system of government. See N.C. Const. art. XIII, § 2 (“The people of

this State reserve the power to amend this Constitution and to adopt a new or revised

Constitution.”). And, through their constitution, the people assigned the General

Assembly a vital role in the amendment process. Specifically, the constitution

authorizes the General Assembly to initiate the process of enacting constitutional

amendments by “adopt[ing] an act submitting the propos[ed] [constitutional

amendments] to the qualified voters of the State for their ratification or rejection,”

provided that “three-fifths of all the members of each house shall adopt [the] act.”

Id., art. XIII, § 4. It is undisputed that three-fifths of the members of each house

adopted acts submitting the proposals to add the Voter ID and Tax Cap Amendments

to the North Carolina Constitution, and that a majority of voters ratified both

amendments in 2018. The sole question before us is whether the legislators who

passed the bills submitting these two amendments to the voters could validly exercise

the authority conferred upon the legislature by the people in article XIII, section 4.

¶ 29 As Judge Young noted, our answer to this question has profound implications

for the principles of popular sovereignty and democratic self-rule that undergird our

system of government. Both parties advance plausible arguments as to why these NAACP V. MOORE

principles demand a ruling in their favor. We agree with Legislative Defendants that

respect for the people’s choice to delegate sovereign power to the legislature requires

upholding the validity of legislators’ actions unless it is palpably clear that their

actions violate the North Carolina Constitution. We agree with NC NAACP that

respect for the people’s reservation of their exclusive authority to amend the

constitution requires closely scrutinizing the actions of those who purport to exercise

this authority under contested circumstances. Thus, in approaching the legal

question presently before us, we heed the foundational commitment to the principles

of popular sovereignty and democratic self-rule that are embodied in the text,

structure, and purpose of the constitution the people have adopted and reaffirmed.5

C. The significance of voter ratification of the challenged amendments.

¶ 30 Before examining the legislators’ authority to initiate the process of amending

the North Carolina Constitution, we note the argument that this question is

practically irrelevant because a majority of North Carolina voters ratified the Voter

ID and Tax Cap Amendments. This argument has some superficial appeal: if what

matters is safeguarding our constitutional commitment to popular sovereignty and

democratic self-rule, the fact that a majority of voters approved the challenged

amendments could indicate that the amendments reflected the people’s will. Yet this

5 These principles are not unique to North Carolina’s Constitution. See generally Jessica Bulman-Pozen & Miriam Seifter, The Democracy Principle in State Constitutions, 119 Mich. L. Rev. 859 (2021). NAACP V. MOORE

argument is misguided in ways that illustrate the stakes at issue in this case.

¶ 31 First, this argument overlooks the fact that constitutional provisions defining

the procedures elected officials must utilize in order to exercise the people’s sovereign

power reflect the people’s conscious choices regarding how, and under what

circumstances, their power may be exercised by elected representatives. These

choices have meaning—they reflect the people’s best efforts to structure a political

system that would facilitate effective governance without fostering tyranny.

See Harriss v. Wright, 121 N.C. 172, 178–79 (1897) (“Under our system, it is said that

sovereign power resides with the people . . . . They have divided and subdivided the

powers of government, with such power in each division or department or branch as

they deemed expedient for the good of the public . . . .”). For this reason, we have held

that when governmental entities fail to adhere to constitutional procedural

requirements, their resulting actions are void. See, e.g., Allen v. City of Raleigh, 181

N.C. 453, 455 (1921) (holding “invalid” a statute involving debt and taxation because

it failed to comply with “mandatory” procedural requirements set forth in article II,

section 14).

¶ 32 We have also recognized that majority approval by the voters does not cure the

deficiency resulting from a violation of a legal prerequisite for presenting someone (or

something) to the voters. For example, in People ex rel. Duncan v. Beach, we held that

a judicial candidate who “was ineligible to hold office prior to and at the time of the NAACP V. MOORE

[ ] election due to his age” could not serve as a district court judge, even though the

candidate had been elected by a majority of the voters in his district, because “[t]he

votes cast for an ineligible candidate [are] not effective to entitle him to the office.”

294 N.C. 713, 718 (1978). Similarly, ratification by the voters does not render the

procedural requirements of article XIII, section 4 constitutionally extraneous. To

conclude otherwise would flagrantly disregard the people of North Carolina’s choice

not to permit constitutional amendment by citizen initiative or popular referendum,

in contrast to the choices made by the citizens of certain other states. See Nat’l

Conference of State Legislatures, Initiative and Referendum States,

https://www.ncsl.org/research/elections-and-campaigns/chart-of-the-initiative-

states.aspx (last visited 3 August 2022).

¶ 33 Second, embracing this argument would also flagrantly ignore the purpose of

the people’s choice to structure the amendment process to require something more

than ratification by the voters. The legislative supermajority requirement is not a

mere procedural nicety; it is a means of safeguarding the system of government

created in the North Carolina Constitution by ensuring that the people’s fundamental

law is not altered or abolished rashly in response to the whims of a particular

moment. As we explained in State ex rel. Attorney-General v. Knight,

the people, then agreeing upon the fundamental law for the present and the future, and knowing that times of agitation and popular clamor would come, while reserving the power of amendment, in their wisdom imposed a restraint upon NAACP V. MOORE

themselves, by making the powers of amendment slow enough to give time for reflection before final action.

169 N.C. 333, 347–48 (1915); cf. Allen, 181 N.C. at 455 (explaining that a

constitutional provision imposing heightened procedural requirements for the

passage of bills addressing debt and taxation was imposed for the purpose “of

obtaining more careful deliberation on these important subjects”). If we were to

conclude that all questions regarding a legislator’s authority to initiate the

amendment process are irrelevant because voters subsequently approved the

proposal, we would be ignoring the people’s view of the way their power should be

exercised and replacing it with our own.

¶ 34 We reject the contention that we do not need to examine the authority of

legislators to propose the Voter ID and Tax Cap Amendments because a majority of

North Carolinians who participated in the 2018 elections subsequently ratified both

amendments. Simply put, the fact that a majority of voters ratified a constitutional

amendment is insufficient to ensure adherence to the principles that animate our

constitutional system of government as defined by the people of North Carolina.

See Reade v. City of Durham, 173 N.C. 668 (1917) (“No one can read . . . our

Constitution without concluding at once that no alteration is permitted by it without

the joint action of the Legislature and the people. Amendment of the organic law of

the State does not depend upon a popular vote alone, but before the people have a

right to express their choice as to whether or not there shall be a change the NAACP V. MOORE

Legislature must by a three-fifths vote of each house thereof consent and provide that

the amendment shall be submitted to the people . . . .” (emphasis added)). The

constitution, which “contains the permanent will of the people,” incorporates the

adoption of a particular procedural mechanism for exercising the people’s sovereign

power to alter or abolish their chosen form of government. Knight, 169 N.C. at 348.

Respecting the people’s will means respecting the processes they saw fit to include in

their fundamental law. Adherence to constitutional procedural requirements is

especially warranted when considering constitutional amendments which, in contrast

to ordinary statutes and other governmental actions, have the potential to redefine

the way sovereign power is channeled and exercised, the basic structure and

organization of our government, and the aims our constitution seeks to realize.

D. De jure officers, de facto officers, and usurpers.

¶ 35 We next consider 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. The crux of the parties’

dispute in this case centers on competing assertions regarding those individuals’

entitlement to exercise power assigned to the legislature and the status of the acts

they undertook post-Covington. Our resolution of this dispute requires us to interpret

and apply cases defining three categories of individuals who purport to hold elected

offices established by the North Carolina Constitution: de jure officers, de facto NAACP V. MOORE

officers, and usurpers.

¶ 36 A de jure officer is one who “exercises the office . . . as a matter of right.” People

ex rel. Duncan, 294 N.C. at 719. To be a de jure officer, an individual 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.” Id. at 720. De jure officers may legitimately exercise all the

powers assigned to an office because they have assumed office in accordance with all

legal requirements. See In re Wingler, 231 N.C. 560, 563 (1950) (“These things being

true, [the officeholder] has a complete title to his office; his official acts are valid; and

he cannot be ousted.”).

¶ 37 Based on the constitutional principles described above, it would be reasonable

to presume that any individual other than a de jure officer lacks the capacity to

exercise the authority assigned to a governmental office. However, this Court—and

other federal and state courts—long ago concluded that such a rule would lead to

chaos, undermine the orderly administration of government, and unfairly burden

individuals who reasonably relied on the acts of apparent officeholders.

See, e.g., Porter, 272 N.C. at 467 (“The de facto doctrine was introduced into the law

as a matter of policy and necessity, to protect the interests of the public and

individuals, where those interests were involved in the official acts of persons

exercising the duties of an office, without being lawful officers.”); cf. EEOC v. Sears, NAACP V. MOORE

Roebuck & Co., 650 F.2d 14, 17 (2d Cir. 1981) (“The de facto officer doctrine was

developed to protect the public from the chaos and uncertainty that would ensue if

actions taken by individuals apparently occupying government offices could later be

invalidated by exposing defects in the officials’ titles.”). Under the common law de

facto officer doctrine, 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” may exercise the powers attendant to that office in ways that

bind third parties and the public. In re Wingler, 231 N.C. at 563.

¶ 38 As we explained in State v. Porter,

A de facto officer may be defined as one whose title is not good in law, but who is in fact in the unobstructed possession of an office and discharging its duties in full view of the public, in such manner and under such circumstances as not to present the appearance of being an intruder or usurper. When a person is found thus openly in the occupation of a public office, and discharging its duties, third persons having occasion to deal with him in his capacity as such officer are not required to investigate his title, but may safely act upon the assumption that he is a rightful officer.

272 N.C. at 465 (quoting Waite v. Santa Cruz, 184 U.S. 302, 323 (1902)). A

paradigmatic example of a de facto officer is someone who is validly elected to an

office, but who is later determined to have been ineligible to assume that office for

failure to satisfy all legal prerequisites for holding office. See, e.g., People ex rel

Duncan, 294 N.C. at 719. Until it is conclusively determined that the officeholder is NAACP V. MOORE

not a de jure officer, the officeholder is a de facto officer whose acts “are valid in law

in respect to the public whom he represents and to third persons with whom he deals

officially.” Porter, 272 N.C. at 465–66.

¶ 39 Still, not all individuals who claim to hold an office may exercise the powers of

that office. North Carolina law recognizes a third category of putative officeholders:

usurpers. In contrast to a de facto officer who “goes in [to office] under color of

authority,” a usurper is an individual “who takes possession [of an office] without any

authority.” People ex rel. Norfleet, 73 N.C. at 550; see also People ex rel. Duncan, 294

N.C. at 720 (“A usurper in office is distinguished from a de facto officer in that a

usurper takes possession of office and undertakes to act officially without any

authority, either actual or apparent.”). Essentially, a usurper is someone who

purports to exercise the powers of an office that the individual has no legitimate claim

to hold, provided that the invalidity of the putative officeholder’s claim is readily

apparent to the public. Cf. Ellis v. N.C. Inst., 68 N.C. 423, 426–27 (1873) (concluding

that individuals were de facto officers because they acted “under the color of an act of

the Legislature” rather than usurpers who “were in without any color of title to the

office”). In contrast to the acts of a de jure or de facto officer, all acts undertaken by a

usurper “are absolutely void, and can be impeached at any time in any proceeding.”

In re Wingler, 231 N.C. at 564.

¶ 40 These precedents make clear that until the United States Supreme Court NAACP V. MOORE

conclusively determined that twenty-eight legislative districts were unconstitutional

racial gerrymanders, legislators elected as a result of unconstitutional racial

gerrymandering were de facto officers. These legislators were not de jure officers

because they were not “lawfully chosen to such office.” People ex rel Duncan, 294 N.C.

at 719–20. Article I, section 3 establishes that “[t]he people of this State have the

inherent, sole, and exclusive right of regulating the internal government . . . but every

such right shall be exercised in pursuance of law and consistently with the

Constitution of the United States.” Our Declaration of Rights further provides that

“no law or ordinance of the State in contravention or subversion [of the United States

Constitution] can have any binding force.” N.C. Const. art. I, § 5. The statutes

creating the legislative districts from which these legislators were elected violated

the Equal Protection Clause of the Fourteenth Amendment of the United States

Constitution. See Covington I, 316 F.R.D. at 124, 176. Nonetheless, at least until

Covington was decided, these legislators were “in the unobstructed possession of an

office and discharging its duties in full view of the public, in such manner and under

such circumstances as not to present the appearance of being an intruder or usurper.”

Porter, 272 N.C. at 465 (quoting Waite, 184 U.S. at 323). Accordingly, they were de

facto officers, and the validity of their actions undertaken during this time is not

subject to collateral attack.

¶ 41 The status of these legislators after Covington was decided is less certain. NAACP V. MOORE

Plaintiff argues that these legislators were nothing more than usurpers, such that

the Voter ID and Tax Cap Amendments are necessarily void. Legislative Defendants

argue that, at a minimum, these legislators remained de facto officers who were

entitled to exercise all the powers assigned to the legislature. Our cases, and cases

from other jurisdictions interpreting these doctrines as articulated in other sources

of law, do not conclusively answer this question.

¶ 42 Although we have held that an individual who assumes office “under color of

an election or appointment by or pursuant to a public unconstitutional law” is a de

facto officer “before the [law] is adjudged to be [unconstitutional],” State v. Lewis, 107

N.C. 967, 971 (1890) (emphasis added), we have not previously addressed a

circumstance 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. Similarly, federal cases examining the de facto officer doctrine have

also centered on official acts undertaken before the determination that an individual’s

claim to an office was deficient. See Ryder v. United States, 515 U.S. 177, 180 (1995)

(“The de facto officer doctrine confers validity upon acts performed by a person acting

under the color of official title even though it is later discovered that the legality of

that person’s appointment or election to office is deficient.” (emphasis added)). The

Middle District of North Carolina was correct in stating that the question of whether

the General Assembly was “empowered to act” as a legislature was and is “an NAACP V. MOORE

unsettled question of state law.” Covington II, 270 F. Supp. 3d at 901.

¶ 43 Plaintiff’s argument that post-Covington, legislators elected from

unconstitutionally racially gerrymandered districts became usurpers is

straightforward. To validly hold an office established by the North Carolina

Constitution, an individual must assume that office in a manner consistent with the

legal requirements of the United States and North Carolina Constitutions. If the

individual assumes office in a manner inconsistent with those legal requirements,

that individual is not a de jure officer. Plaintiff contends that once it is conclusively

(and publicly) determined that an individual lacks a valid claim to an office, that

individual becomes a usurper.

¶ 44 The problem with this theory is that it invites the exact problem the de facto

officer doctrine was created to avoid: the chaos and confusion that would result from

declaring that the people lacked any representatives empowered to exercise any

legislative authority for more than a year. Conceptually, plaintiff has no answer to

the question of why, if its theory is correct, any actions undertaken by the challenged

legislators post-Covington can be upheld. Plaintiff emphasizes that its legal challenge

is limited to these two constitutional amendments, but a usurper’s actions are not

just voidable in a collateral proceeding; all of a usurper’s actions “are absolutely void.”

¶ 45 In response, Legislative Defendants advance three main arguments in support NAACP V. MOORE

of the notion that all members of the General Assembly retained their authority to

exercise all legislative powers even after Covington was decided. In essence,

Legislative Defendants contend that the legislators remained de facto officers post-

Covington, and that de facto officers must be permitted to exercise all of the powers

delegated to a constitutional office. We agree with the first premise, but not the

second.

¶ 46 Legislative Defendants’ first argument is that all legislators were at a

minimum de facto officers because they were “elected in 2016 before any final

judgment regarding the validity or constitutionality of the districts from which they

were elected; they were sworn into office; they served continually and openly; and

they were recognized as members of the General Assembly until their terms expired

at the end of 2018.” This argument relies heavily on the fact that the federal courts

overseeing the Covington litigation permitted the legislators to finish their terms,

even though the federal courts possessed the remedial authority to order mid-term

special elections. In support of this argument, Legislative Defendants cite Justice

Douglas’s concurrence in Baker v. Carr, in which he stated that a “recent ruling by

the Iowa Supreme Court that a legislature, though elected under an unfair

apportionment scheme, is nonetheless a legislature empowered to act . . . is plainly

correct.” 369 U.S. at 250 n. 5 (Douglas, J., concurring) (citations omitted). This

argument posits that if a court has concluded that a legislature is unconstitutionally NAACP V. MOORE

gerrymandered, but permits the legislature to exercise its authority to enact a

remedial redistricting plan (as courts routinely do), then it would be illogical to also

conclude that members of that same legislative body were usurpers whose actions

were void ab initio.

¶ 47 This argument has some force. In general, an individual remains a de facto

officer as long as that individual “maintain[s] an appearance of right to [an] office.”

EEOC v. Sears, 650 F.2d at 17. The Middle District of North Carolina was correct in

noting that at the time Covington was being litigated, there was “no authority from

[North Carolina] courts definitively holding that a legislator elected in an

unconstitutionally drawn district is a usurper.” Covington II, 270 F. Supp. 3d at 901.

Absent such authority, it was not unreasonable for the public to believe that, even

after Covington, the legislators elected as a result of unconstitutional racial

gerrymandering could continue exercising legislative authority until they were

replaced or retained through the electoral process.

¶ 48 Historically, legislators who were determined to have been elected as a result

of an unconstitutional apportionment have been permitted to continue serving in

office until after the conclusion of the next general election, following which impacted

districts would be redrawn in preparation for the next election cycle. See, e.g., Pender

County v. Bartlett, 361 N.C. 491 (2007). Here, no attempt was made to oust the

legislators from their offices via a quo warranto action. See N.C.G.S. § 1-515 (“An NAACP V. MOORE

action may be brought by the Attorney General in the name of the State, upon his

own information or upon the complaint of a private party, against the party offending

. . . [w]hen a person usurps, intrudes into, or unlawfully holds or exercises any public

office . . . .”). There is also a longstanding public policy against leaving public offices

vacant. See State ex rel. Markham v. Simpson, 175 N.C. 135, 137 (1918) (noting the

“sound public policy which is against vacancies in public offices and require[es] that

there should always be some one [sic] in position to rightfully perform . . . important

official duties for the benefit of the public . . . .”).

¶ 49 At the same time, adopting this argument in full would allow the federal courts

to dictate the answer to a novel question of state law. As a result, we would be

compelled to read Covington, a case in which a federal district court expressly

declined to rule on the question of whether legislators were empowered to act as a

matter of North Carolina law, as establishing that the challenged legislators were

empowered to exercise all legislative powers as a matter of North Carolina law.

See Covington II, 270 F. Supp. 3d at 901 (“Given that [the argument that the

legislature lacked authority to act] implicates an unsettled question of state law,

[this] argument is more appropriately directed to North Carolina courts, the final

arbiters of state law.”). Yet questions involving the interpretation of the North

Carolina Constitution and North Carolina law can be resolved conclusively only by

this Court. See, e.g., Unemp. Comp. Comm’n v. Jefferson Standard Life Ins. Co., 215 NAACP V. MOORE

N.C. 479, 486 (1939) (explaining that questions of state law are “to be interpreted

finally by this Court”).

¶ 50 Moreover, the federal courts in Covington did not affirmatively and proactively

conclude that the unconstitutionally elected members of the General Assembly could

exercise all legislative authority until they were replaced after the next election, as

other courts have done.6 Absent an express indication that a federal court considered

the legislature’s continued authority to act as a matter of state law, a federal court’s

decision to afford an unconstitutionally gerrymandered legislature the first

opportunity to reapportion itself as an exercise of its remedial powers might reflect

federalism interests, principles of institutional comity, or practical exigencies.

Regardless, establishing legislative districts is an ordinary legislative act;

recognizing the necessity of enacting remedial maps is not necessarily the same as

recognizing the authority of legislators to initiate the process of changing a state’s

fundamental law. Cf. Petuskey v. Rampton, 307 F. Supp. 235, 253–54 (C.D. Utah

1969) (“Based [u]pon ideas of practicality, the ordinary, customary legislation needed

6 In contrast, the Michigan Supreme Court specifically noted that legislators elected from unconstitutionally apportioned districts could “function as de facto officers for all valid purposes” until they were “legally succeeded” by new legislators, relying on its own precedent examining the scope of the de facto officer doctrine. Scholle v. Hare, 367 Mich. 176, 192 (1962); see also Long v. Avery, 251 F. Supp. 541, 559 (D. Kan. 1966) (supplemental opinion) (“[W]e hold that the present State Senate should be permitted to a continuance of its powers during the current term for which the members of the State Senate were elected.”). Regardless, as noted above, a federal court cannot conclusively resolve a pure question of state law such as the one presented in this case. NAACP V. MOORE

to keep a state government going, has been held valid though the legislature is

unconstitutionally apportioned. There isn’t the same practical problem in holding

void the legislators’ attempt to continue themselves in their illegal state of

unconstitutional apportionment.”), rev’d on other grounds, 431 F.2d 378 (10th Cir.

1970); City of Chicago v. Reeves, 220 Ill. 274, 288 (1906) (“The right to propose

amendments to the Constitution is not the exercise of legislative power by the

General Assembly in its ordinary sense . . . .”).

¶ 51 Legislative Defendants’ second argument is that recognizing all legislators’

authority to exercise all legislative powers even after Covington was decided is

necessary to avoid “chaos and confusion.” This argument relates to the basic

justification for the de facto officer doctrine, which is to avoid the “[e]ndless confusion

and expense [that] would ensue if the members of society were required to determine

at their peril the rightful authority of each person occupying a public office before

they invoked or yielded to his official action.” In re Wingler, 231 N.C. at 565–66.

According to Legislative Defendants, retroactively examining a particular legislator’s

authority to exercise any power constitutionally assigned to the legislature would

fundamentally destabilize North Carolina law. In their view, it would both call into

question all the legislative acts enacted by legislators subsequently determined to be

elected due to unconstitutional apportionment statutes—which, given North

Carolina’s history with gerrymandering, is potentially many acts—and engender NAACP V. MOORE

profound uncertainty whenever legislators elected in accordance with facially valid

apportionment statutes attempt to exercise legislative powers.

¶ 52 This argument is compelling, to an extent. The de facto doctrine is indeed

“indispensable to the prompt and proper dispatch of governmental affairs.” In re

Wingler, 231 N.C. at 565. Applying it here ensures that North Carolinians continue

to be governed by a legislature that can continue to function. We agree with

Legislative Defendants that, as a prudential matter, it would be intolerable to hold

that the people of North Carolina were left without any body capable of exercising

legislative authority in the aftermath of Covington.

¶ 53 But while the de facto officer doctrine is properly invoked to stave off the

possibility of “[e]ndless confusion and expense,” id., it does not change the fact that

individuals exercising the power of an office assumed that office through unlawful

means. Reflexively applying the de facto officer doctrine runs the risk of degrading

the importance of the constitutionally prescribed processes through which

individuals assume governmental office, processes which structure and legitimize the

delegation of the people’s sovereign power to elected representatives. The de facto

officer doctrine may be necessary “to ensure the orderly administration of

government,” State v. Oren, 160 Vt. 245, 247 (1993), but it also threatens principles

of popular sovereignty and democratic self-rule by requiring the public to be bound

by the actions of an individual who, under the theory and structure of government NAACP V. MOORE

adopted by the people of North Carolina in their constitution, lacked authority to

legitimately exercise sovereign power.

¶ 54 As the United States Supreme Court long ago explained, courts should exercise

“caution” when considering “claims which, if not founded in violence or in mere might,

. . . refer us for their origin certainly not to regular unquestioned legal or political

authority;” rather, “claims founded upon the acts of a government de facto must be

sustained, if at all, by the nature and character of such acts themselves.” United States

v. Reynes, 50 U.S. (9 How.) 127, 153 (1850) (emphasis added). If concern for the

orderly administration of government requires us to apply the de facto officer doctrine

to shield actions undertaken after it was established that certain legislators assumed

office through legally deficient means, the constitution also requires us to closely

scrutinize those actions in view of their “nature and character” to avoid requiring the

people to be governed by individuals who lack a legitimate claim to rule.

¶ 55 Legislative Defendants’ final argument is that there is no principled way to

distinguish between the constitutional amendments plaintiff has challenged in this

litigation and all the other legislative acts the challenged legislators undertook after

Covington and before their terms expired. In their view, if the legislature lost its claim

to represent the people’s will, then it could not exercise any legislative authority

consistent with the principles of popular sovereignty and democratic self-rule, and all

actions undertaken by the legislature after Covington would be subject to retroactive NAACP V. MOORE

invalidation. In support of this argument, Legislative Defendants rely primarily on

Dawson v. Bomar, in which the Sixth Circuit rejected a state prisoner’s claim that a

statute authorizing the death penalty for certain criminal offenses was void because

the legislature that enacted the statute was unconstitutionally malapportioned. 322

F.2d at 447–48. In rejecting the prisoner’s effort to have the death penalty statute—

but not other statutes—nullified, the Sixth Circuit refused to draw a distinction

between statutes addressing different subjects based upon “the Court’s opinion as to

the wisdom, morality, or appropriateness of such laws.” Id. at 448.

¶ 56 The Sixth Circuit’s interpretation of federal common law does not, of course,

control this Court’s interpretation and application of state law. Regardless,

Legislative Defendants misread Dawson, which held only that in applying the de

facto officer doctrine, courts should not draw distinctions between categories of

ordinary statutes addressing different subjects based solely on judicial views of the

relative importance of those subjects. Dawson says nothing about how courts should

approach categorically different types of legislative acts.

¶ 57 To the extent that Legislative Defendants’ reliance on Dawson also suggests

that no justification besides judicial caprice exists to distinguish between ordinary

statutes and bills proposing constitutional amendments, Legislative Defendants

overlook that the North Carolina Constitution itself draws precisely this distinction.

The North Carolina Constitution expressly reserves to the people the right to “alter[ ] NAACP V. MOORE

or abolish[ ] their Constitution and form of government.” N.C. Const. Art. I, § 3. The

legislature must satisfy different, heightened procedural requirements as part of that

process, requirements that do not apply when the legislature enacts ordinary

statutes. N.C. Const. art. XIII, § 4. Constitutional amendments, unlike ordinary

statutes, have the potential to transform North Carolina’s theory of government and

restructure its political processes. Clearly, the distinction between constitutional

amendments and ordinary statutes was not invented by the trial court in this case; it

was established by the people themselves as inscribed in the North Carolina

Constitution. We cannot, and need not, blind ourselves to the chaos that would ensue

if a body composed of a substantial number of officeholders 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.

¶ 58 In sum, Legislative Defendants’ arguments persuade us that the legislature,

writ large, did not entirely lack authority to exercise legislative powers—legislators

elected due to unconstitutional racial gerrymandering did not, as plaintiff argues,

lack any colorable claim to exercise the powers delegated to the legislature.

Accordingly, actions undertaken by legislators post-Covington are presumptively

valid as the actions of de facto officers. But we are unconvinced that recognizing the

challenged legislators’ status as de facto officers compels the conclusion that these

legislators possessed the authority to initiate the process of amending the North NAACP V. MOORE

Carolina Constitution. As we have explained, the de facto officer doctrine is a creation

of the common law, introduced for prudential and practical reasons in response to

issues that arise when a putative officeholder exercises the powers of an office.

See, e.g., Porter, 272 N.C. at 467; cf. Goral v. Dart, 2020 IL 125085, ¶ 71 (“The de facto

officer doctrine is a common-law equitable doctrine that confers validity upon acts

performed by a person acting under the color of official title even though it is later

discovered that the legality of that person’s appointment to office is deficient.”).

Although we agree with Legislative Defendants that the de facto officer doctrine

applies in this case, we conclude that we must define its scope in view of the interests

the doctrine was designed to advance and the relevant constitutional provisions and

principles the amendment process implicates.

E. The validity of Session Law 2018-119 and Session Law 2018-128.

¶ 59 The unique circumstances giving rise to this dispute require us to apply the

common law de facto officer doctrine and to refine its terms. It is correct that we have

never applied the de facto officer doctrine to shield actions undertaken after the legal

deficiency in a putative officeholder’s claim to office has been conclusively established.

But replacing legislators elected due to an unconstitutional racial gerrymander is a

more complex and time-intensive process than replacing a single individual who is

ineligible to hold a particular office. Cf. People ex rel Duncan, 294 N.C. at 717

(examining de facto officer doctrine in claim challenging actions of district court judge NAACP V. MOORE

who was too old to hold judicial office). Because remedying even a single

unconstitutionally gerrymandered district may require altering the boundaries of

numerous other districts—and because courts must evaluate many different interests

and equities when considering how to remedy an unconstitutional gerrymander—it

is almost inevitable that legislators elected as a result of unconstitutional

gerrymandering will continue serving in office for some amount of time after the

illegality of the districts they were elected from has been conclusively established.

Even though the de facto officer doctrine has traditionally only applied to actions

undertaken before an individual’s claim to an office has been proven deficient, we

believe the doctrine should be applied to legislators who remain in office even after it

has been determined that they were elected due to unconstitutional gerrymandering.

¶ 60 It is also correct that, generally, the de facto officer doctrine has been

understood to shield all the actions undertaken by a de facto officer, without concern

for the subject matter or nature of the act. See, e.g., Hinson v. Britt, 232 N.C. 379, 381

(1950) (“The acts of a de facto officer are valid in law in respect to the public, whom

he represents, and to third persons, with whom he deals officially.”). We agree that

the core insight justifying the de facto officer doctrine—the need to avoid chaos and

confusion—amply justifies shielding all ordinary legislative enactments from ex post

facto collateral attack. With respect to ordinary legislation, application of the de facto

officer doctrine is necessary to ensure the people of North Carolina are served by a NAACP V. MOORE

body empowered to respond to the urgent, complex challenges of the day. See Burke,

26 N.C. at 359–60 (“It is a settled principle that the acts of officers de facto are as

effectual, as far as the rights of third persons or the public are concerned, as if they

were officers de jure. The business of life could not go on, if it were not so.”).

Furthermore, the risk that ordinary legislation will undermine fundamental

constitutional principles is limited—ordinary legislation must comport with the

North Carolina Constitution and is subject to judicial review. See Bayard v.

Singleton, 1 N.C. (1 Mart.) 5, 3 (Super. Ct. 1787). Ordinary legislation can be repealed

(or not) by a simple majority of the legislators elected from new districts after an

unconstitutional gerrymander is remedied.

¶ 61 By contrast, the same prudential considerations do not justify applying the de

facto officer doctrine to completely shield proposed constitutional amendments from

collateral review when some number of legislators who voted on the amendment had

already been determined to lack de jure status. As described above, the North

Carolina Constitution itself draws a distinction between ordinary legislation and

legislation initiating the process of altering or abolishing North Carolina’s

fundamental law. N.C. Const. art. XIII, § 4. The constitution imposes heightened

procedural requirements for enacting constitutional amendments precisely because

the people did not wish to see their fundamental law altered or abolished in response

to everyday exigencies. See Knight, 169 N.C. at 347 (“The Constitution is intended to NAACP V. MOORE

be permanent, and was adopted not only to meet conditions then existing, but for the

future . . . . It is not an enemy to progress, but as it is the result of deliberate

consideration and mature judgment, first expressed in convention, and then approved

by the people, it is so framed that it cannot be changed in a day . . . .”). Preserving de

facto legislators’ authority to initiate the amendment process in all circumstances is

not only unnecessary to achieve the doctrine’s goal of preventing chaos and

maintaining the orderly administration of government, but it is also contrary to the

theory and structure of government enacted by the North Carolina Constitution.

¶ 62 Constitutional amendments can work dramatic changes to our system of

government that cannot easily be revisited. The people’s power to alter or abolish the

North Carolina Constitution is limited only by the United States Constitution under

the terms of the Supremacy Clause. See U.S. Const. art. VI, cl. 2. Unlike ordinary

legislation, a new constitutional amendment can fundamentally change or repudiate

then-existing constitutional provisions and principles. See Leandro v. State, 346 N.C.

336, 352 (1997) (“It is axiomatic that the terms or requirements of a constitution

cannot be in violation of the same constitution—a constitution cannot violate itself.”).

If a legislator’s de facto authority is unlimited, legislators who do not lawfully

represent the will of the people could exercise legislative powers to evade democratic

accountability and entrench themselves and their chosen policies by redefining how

the people’s sovereign power is allocated and exercised. NAACP V. MOORE

¶ 63 For example, legislators could present a proposed amendment

constitutionalizing a particular policy alongside another amendment providing that,

going forward, the constitution can only be amended with the unanimous consent of

all legislators and approval by a ninety-nine percent majority of voters. Legislators

could present a proposed amendment overruling a judicial decision conclusively

establishing that the districts they were elected from violated the North Carolina

Constitution and extending their own terms in office. Legislators could present a

proposed amendment targeting a group of citizens who had been unconstitutionally

excluded from the democratic process with particular burdens or devaluing the voice

of that same group of citizens in the political process. Again, the fact that these

proposed amendments must subsequently garner approval from a majority of voters

does not assure that an amendment is an expression of the people’s will as defined

under the North Carolina Constitution as it currently exists—while the people

reserved for themselves the awesome power to fundamentally change North

Carolina’s theory of government and basic political structure, they also chose to

involve the legislature in the amendment process in order to avoid allowing such

profound changes to be effectuated by a potentially fleeting majority of voters at any

single moment in time.

¶ 64 For these reasons, we believe the trial court was correct to draw a distinction

between ordinary legislation on the one hand and legislation initiating the process of NAACP V. MOORE

amending the North Carolina Constitution on the other. Still, further inquiry is

needed before invalidating a challenged constitutional amendment. Given the risk of

confusion that may arise when a court retroactively examines a constitutional

amendment that has recently been approved by a majority of North Carolina voters,

a constitutional amendment enacted by a legislature composed of unconstitutionally

elected members should only be invalidated when the threat to popular sovereignty

and democratic self-rule is substantial. While the North Carolina Constitution

demands that courts scrutinize legislation proposing constitutional amendments

when the authority of legislators to do so is challenged, prudential considerations

demand that courts exercise “this most important and delicate power of holding

legislation invalid” only when doing so is clearly necessary. Bickett v. State Tax

Comm’n, 177 N.C. 433, 433 (1919). A court must consider the following questions

when determining whether to apply the de facto officer doctrine to uphold legislation

proposing constitutional amendments enacted under these circumstances.

¶ 65 First, as a threshold matter, a court must consider whether the votes of

legislators who were elected as a result of unconstitutional gerrymandering were

potentially decisive. This inquiry is necessary because it is individual legislators

whose claim to office is constitutionally deficient; the legislature as a whole has not

lost its authority to exercise the people’s sovereign power. When a sufficient number

of legislators elected in a manner consistent with the constitution approve a bill, there NAACP V. MOORE

is little reason to doubt that the bill reflects the will of the people as expressed by

individuals specifically and properly authorized to exercise the powers delegated to

the legislature. Although we recognize that the overall composition of the legislature

influences the actions of the legislature in ways other than a raw vote count—for

example, the presence of any single legislator, lawfully elected or not, might shape

the body’s deliberative process and the terms of a debate—when there is no

meaningful chance that a lawfully constituted body “would produce a different

outcome, [courts should] apply the de facto officer doctrine and uphold the validity of

the” challenged enactment. Vroman v. City of Soldotna, 111 P.3d 343, 349 (Alaska

2005).

¶ 66 In this case, there is no doubt that the votes of legislators elected as a result of

unconstitutional gerrymandering—that is, those elected directly from

unconstitutionally gerrymandered districts and those elected in districts that needed

to be redrawn in order to implement a constitutionally compliant districting plan—

could have been decisive in passing Session Laws 2018-119 and 2018-128. Approving

a bill to present a constitutional amendment to the voters requires a supermajority

of three-fifths, and Legislative Defendants do not challenge the trial court’s finding

that “[c]uring th[e] widespread and sweeping racial gerrymander required that over

two-thirds of the North Carolina House and Senate districts be redrawn.” It is

indisputable that plaintiff will satisfy this threshold inquiry. Nonetheless, under NAACP V. MOORE

different circumstances—for example, if the bills proposing the amendments had

passed by a margin larger than the number of legislators who were not de jure

officers—no further inquiry would be required, and the prudential considerations

justifying the de facto officer doctrine would require leaving the legislature’s actions

undisturbed.

¶ 67 However, when as in this case the unconstitutionally elected legislators were

sufficient in number to be decisive in the vote on a bill proposing a constitutional

amendment, three further factors must be examined to determine if a challenged

constitutional amendment so gravely threatens principles of popular sovereignty and

democratic self-rule as to require retroactive invalidation. Courts must consider

whether there is a substantial risk that a challenged constitutional amendment will

immunize legislators from democratic accountability going forward or perpetuate the

ongoing exclusion of a category of voters from the political process. When either of

these situations occur, a legislature that did not fully represent the people of North

Carolina has sought to entrench itself by redefining who “the people” are and how

they govern themselves–the legislature has attempted to legitimate and perpetuate

an otherwise legally deficient claim to exercise the people’s political power and, in the

process, sought to preempt the people’s capacity to reassert their will consistent with

the terms of their fundamental law. Under these circumstances, judicial intervention

is necessary in light of “the importance of giving effect to already stated expressions NAACP V. MOORE

of the popular will.” State ex rel. Cooper v. Caperton, 196 W. Va. 208, 218 (1996).

¶ 68 In general, if a constitutional amendment does not immunize legislators from

democratic accountability or perpetuate the ongoing exclusion of a category of voters,

the risk of chaos and confusion arising from retroactively examining the validity of

an act proposing a constitutional amendment outweighs the threat to constitutional

principles that arises from allowing the amendments to remain in place.7

Amendments that constitutionalize a particular policy choice, but do not alter the

way the people’s sovereign power is allocated, channeled, and exercised by the

people’s representatives, do not typically threaten principles of popular sovereignty

and democratic self-rule. Although these policy choices will be more difficult to revoke

than policy choices enacted through ordinary legislation, the people can choose to

revisit these choices by engaging in the political processes they have already

structured and adopted.

¶ 69 There is, however, one exception to this general rule: policy choices that

intentionally discriminate against a particular category of citizens who were also

discriminated against in the drawing of the districts from which the legislators who

7 The likelihood that invalidating a challenged constitutional amendment will engender significant confusion varies depending on the circumstance. For example, the magnitude of the potential confusion will vary depending on whether the constitutional amendment has been implemented through enabling legislation that has already taken effect, whether the public has relied upon changes in the law introduced by the amendment, and whether there was a significant lapse in time between passage of the constitutional amendment and the successful challenge to the legislators’ authority. NAACP V. MOORE

initiated the amendment process were elected. In this circumstance, principles of

popular sovereignty and democratic self-rule are threatened because it is reasonable

to presume that the initial diminishment of the political power of a group of citizens

directly enabled the passage of an amendment that lawmakers responsive to that

group would likely have opposed. Under our system of government, groups of citizens

who do not constitute a majority of voters are, of course, bound by laws they

personally oppose, but the legitimacy of those laws is predicated on “the operation of

those political processes ordinarily to be relied upon to protect minorities.” United

States v. Carolene Prods. Co., 304 U.S. 144, 153 n.4 (1938). Requiring persons to be

bound by a constitutional amendment which specifically targets a group to which they

belong for disfavored treatment, and which was enacted by a legislature formed

through a political process designed to deprive them of an equal voice, is repugnant

to the principles of popular sovereignty and democratic self-rule. It is a form of

tyranny that would engender the very “chaos” the de facto officer doctrine was

designed to avoid.

¶ 70 Thus, when the votes of legislators elected due to an unconstitutional

gerrymander could have been decisive in enacting a bill proposing a constitutional

amendment, courts must assess whether there is a substantial risk that the

challenged amendment will (1) immunize legislators from democratic accountability;

(2) perpetuate the ongoing exclusion of a category of voters from the political process; NAACP V. MOORE

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 any of these factors are present, then the balance of equities requires the court to

invalidate the challenged amendment. If these factors are not present—or if the

legislators elected due to an unconstitutional gerrymander were not so numerous as

to be potentially decisive in the vote to put a proposed amendment to the people—the

challenged amendment must be left in place.

¶ 71 In this case, the trial court did enter some findings of fact that are relevant to

these factors. Specifically, in addressing NC NAACP’s standing to challenge the two

amendments, the trial court found as follows:

31. Members of the NC NAACP, who include African-American and Latino voters in North Carolina, and the NAACP itself are directly harmed by the proposed Voter ID constitutional amendment. Members will be effectively denied the right to vote or otherwise deprived of meaningful access to the political process as a result of the proposed Voter ID requirement. The proposed Voter ID amendment will also impose costs and substantial and undue burdens on the right to vote for those and other members.

33. The income tax cap constitutional amendment harms the NC NAACP, its members, and the communities it serves, and its ability to advocate for its priority issues. Because the amendment places a flat, artificial limit on income taxes, it prohibits the state from establishing graduated tax rates on higher-income taxpayers and, over time, will act as a tax cut only for the wealthy. This tends NAACP V. MOORE

to favor white households and disadvantage people of color, reinforcing the accumulation of wealth for white taxpayers and undermining the financing of public structures that have the potential to benefit non-wealthy people, including people of color and the poor. For example, historically in North Carolina, decreased revenue produced by income tax cuts in the state has resulted in significant spending cuts that disproportionately hurt public schools, eliminated or significantly reduced funding for communities of color, and otherwise undermined economic opportunity for the non- wealthy.

However, the trial court did not engage these factual questions in the context of a

proper understanding of the law governing the novel legal question presented in this

case, and the parties did not have the opportunity to present all evidence that may

be relevant to resolution of this inquiry. Therefore, we reverse the decision of the

Court of Appeals and remand to the trial court solely for an evidentiary hearing and

the entry of additional findings of fact and conclusions of law addressing whether, in

light of the factors identified in this opinion, the de facto officer doctrine should be

applied to shield the acts proposing the Voter ID and / or Tax Cap Amendments from

retroactive invalidation. On remand, the parties otherwise remain bound by the trial

court’s unchallenged findings of fact as contained in its prior order.

¶ 72 The dissent disagrees with our resolution of the novel legal issues presented in

this case. Registering disagreement is, of course, the prerogative of dissenting

Justices and the very purpose of a dissenting opinion. But the language the dissent

chooses to register its disagreement goes well beyond language typically used to NAACP V. MOORE

express the kind of good-faith disputes about the thorny legal questions that

inevitably arise when this Court is called upon to answer novel legal issues. In a

caustic and unprecedented manner, the dissent suggests that our resolution of this

case can only have resulted from pure partisan bias and intellectual dishonesty. This

accusation is beneath the dignity of this Court. The suggestion that no neutral, honest

jurist could possibly resolve this case differently than the way the dissent would have

resolved it impugns the integrity of the federal judges who initially considered the

issue raised in this appeal and determined it to implicate weighty and unsettled

questions of state law, the trial court judge who ruled in plaintiff’s favor, the

dissenting Court of Appeals judge who disagreed with his colleagues’ decision to

reverse the Superior Court’s order, and the many dedicated advocates who advanced

nuanced and deeply-researched arguments in the course of these proceedings. Within

our legal system, lawyers, judges, and Justices who endeavor to answer difficult legal

questions arising from novel circumstances can reach different conclusions based on

different interpretations of the relevant law and different understandings of the

proper role of the judiciary. If the answers to these questions were easy, there would

be no need for lawyers, judges, and Justices. To the extent the dissent advances a

competing interpretation of the constitutional provisions and principles at issue in

this case, we rest on the legal reasoning expressed in this opinion that led to the

ultimate conclusion we arrived at; to the extent the dissent asserts that our ultimate NAACP V. MOORE

conclusion is driven by anything other than our best efforts to interpret and apply the

relevant sources of legal authority, we reject the dissent’s specious and unfounded

accusation in the most forceful terms.

IV. Conclusion

¶ 73 “We should ever be mindful that the Constitution to a great extent is the

rudder to keep the ship of state from off the rocks and reefs.” Hinton v. Lacy, 193 N.C.

496 (1927). Although the questions raised in this appeal are novel, the answers can

be found in the principles that are the foundation of North Carolina’s system of

government as expressed in multiple provisions of the North Carolina Constitution,

the people’s fundamental law. The people have reserved to themselves the power to

amend or replace these principles and provisions. While they have assigned the

legislature a role in the amendment process, the potentially transformative

consequences of amendments that could change basic tenets of our constitutional

system of government warrant heightened scrutiny of amendments enacted through

a process that required the participation of legislators whose claim to represent the

people’s will has been disputed. Consistent with these constitutional principles and

provisions, we conclude that acts proposing constitutional amendments passed by a

legislature composed of a substantial number of legislators elected from

unconstitutionally racially gerrymandered legislative districts, after the

unlawfulness of those districts has been conclusively established, are not NAACP V. MOORE

automatically shielded by application of the de facto officer doctrine. We reverse the

decision of the Court of Appeals and instruct that court to remand this matter to the

trial court for further proceedings consistent with this opinion.

REVERSED AND REMANDED. NAACP V. MOORE

Berger, J., dissenting

Justice BERGER dissenting.

¶ 74 At issue today is not what our constitution says. The people of North Carolina

settled that question when they amended the constitution to include the Voter ID and

Tax Cap Amendments. These amendments were placed on the November 2018 ballot

by the constitutionally required three-fifths majority in the legislature. On

November 6, 2018, the citizens of North Carolina voted overwhelmingly to approve

the North Carolina Voter ID Amendment and the North Carolina Income Tax Cap

Amendment. More than 2,000,000 people, or 55.49% of voters, voted in favor of Voter

ID, while the Tax Cap Amendment was approved by more than 57% of North

Carolina’s voters.1

¶ 75 Instead, the majority engages in an inquiry that is judicially forbidden — what

should our constitution say? This question is designated solely to the people and the

legislature. The majority concedes that constitutional procedures were followed, yet

1 While only two amendments are the focus of plaintiffs’ action, a total of six amendments were proposed to the people of North Carolina in November 2018. The additional amendment proposals were: Session Law 2018-96 (Protect the Right to Hunt, Fish, and Harvest Wildlife Amendment), Session Law 2018-110 (Strengthening Victims’ Rights Amendment), Session Law 2018-117 (Legislative Appointments to Elections Board and Commissions Amendment), and Session Law 2018-118 (Judicial Selection for Midterm Vacancies Amendment). Session Laws 117 and 118 were the only two amendments not approved by voters. 63 NAACP V. MOORE

they invalidate more than 4.1 million votes and disenfranchise more than 55% of

North Carolina’s electorate. Unwilling to accept the results of a procedurally sound

election that enshrined the Voter ID and Tax Cap Amendments in our state

constitution, the majority nullifies the will of the people and precludes governance by

the majority. In so doing, my colleagues extend the reach of their judicial power

beyond mere judicial review of actions under our constitution; instead, they have

determined that certain provisions of the constitution itself are objectionable. 2

¶ 76 The majority concludes that our constitution should not include Voter ID or a

lower tax ceiling, claiming that the legislature lacked authority to perform a

constitutionally designated duty and that the people of this State had no legal right

to amend their constitution. Certainly, the majority cannot rightfully declare that

there are, or have been, periods of time in which the people of North Carolina have

lacked authority to amend their constitution. Such a reading would be contrary to

N.C. Const. art. I, §§ 2, 3, and 36.

¶ 77 Voiding constitutional authority is far more egregious than picking and

choosing which category of laws to invalidate. See Dawson v. Bomar, 322 F.2d 445,

448 (6th Cir. 1963) (declining to separate and void only certain legislation enacted by

malapportioned legislature, as doing so would “circumvent legal principles in order

2While the case is technically being remanded to the trial court, the desired outcome is clear from the tone and required test announced today. 64 NAACP V. MOORE

to substitute the Court’s opinion as to the wisdom, morality, or appropriateness of

such laws.”). Striking at the very heart of our form of government, the majority

unilaterally reassigns constitutional duties and declares that the will of the judges is

superior to the will of the people of North Carolina. At what point does the seizure

of popular sovereignty by this Court violate the federal constitution?

¶ 78 One could argue that this Court has circumvented the will of the people and

subverted our republican form of government guaranteed in Article IV, Section 4 of

the United States Constitution through its “systematic frustration of the will of a

majority of the electorate of the State.” Lucas v. Forty-Fourth Gen. Assembly of State

of Colo., 377 U.S. 713, 753–54, 84 S. Ct. 1459, 1483, 12 L. Ed. 2d 632 (1964) (Stewart,

J., dissenting). In Federalist No. 39, James Madison stated that a republic is “a

government which derives all its powers directly or indirectly from the great body of

the people, and is administered by persons holding their offices during pleasure, for

a limited period, or during good behavior.” The Federalist No. 39 at 194 (James

Madison) (Gideon ed. 2001).3 Anti-Federalist author Centinel stated that, in a

3 Madison, in discussing Article IV Section 4 in Federalist 43, notes that

[i]n a confederacy founded on republican principles, and composed of republican members, the superintending government ought clearly to possess authority to defend the system against aristocratic or monarchial innovations. ... If the interposition of the general government should not be needed, the provision for such an event will 65 NAACP V. MOORE

republican government, “the people are the sovereign, and their sense or opinion is

the criterion of every public measure. When this ceases to be the case, the nature of

the government is changed . . . .” Centinel Letter I, The Essential Antifederalist, p.

100.

¶ 79 Moreover, one could also argue that this Court has violated the Fourteenth

Amendment. The assumption of popular sovereignty to the exclusion of the people

implicates the most fundamental rights. “To the extent that a citizen’s right to vote is

debased, he is that much less a citizen.” Reynolds v. Sims, 377 U.S. 533, 567, 84 S.

Ct. 1362, 1384, 12 L. Ed. 2d 506 (1964). The United States Supreme Court has dealt

extensively with various redistricting and apportionment actions taken by state

legislatures. Moreover, actions by members of the executive branch are routinely the

subject of Fourteenth Amendment inquiries. It cannot then be inconceivable that the

action by members of this Court to unilaterally invalidate the votes of millions of

be a harmless superfluity only in the Constitution. . . . As long, therefore, as the existing republican forms are continued by the States, they are guaranteed by the federal Constitution. Whenever the States may choose to substitute other republican forms, they have a right to do so, and to claim the federal guaranty for the latter. The only restriction imposed on them is, that they shall not exchange republican for antirepublican Constitutions; a restriction which, it is presumed, will hardly be considered as a grievance.

The Federalist No. 43 at 225 (James Madison) (Gideon ed. 2001).

66 NAACP V. MOORE

citizens of this State, thereby wholly prohibiting the “free exercise and enjoyment of

their right and privilege,” violates the Constitution. United States v. Mosley, 238 U.S.

383, 385, 35 S. Ct. 904, 905, 59 L. Ed. 1355 (1915).

¶ 80 The question before this Court is a simple one: under the North Carolina

Constitution, what is the authority of the legislature to perform constitutionally

prescribed acts? The answer seems obvious — our legislature has the authority to

act consistent with the terms of our state’s constitution. Importantly, the

Constitution of North Carolina is not a grant of power, but rather, a limitation; power

not surrendered remains with the people and is exercised through the General

Assembly, which functions as the arm of the electorate. Pope v. Easley, 354 N.C. 544,

546, 556 S.E.2d 265, 267 (2001) (per curiam); Sugar Creek Charter Sch., Inc. v. State,

214 N.C. App. 1, 18, 712 S.E.2d 730, 741 (2011), appeal dismissed and disc. rev.

denied, 366 N.C. 227, 726 S.E.2d 849 (2012). “[U]nder the principle of popular

sovereignty, the ‘political power’ of the people is channeled through the proper

functioning of the democratic processes of our constitutional system to the people’s

representatives in government.” Harper v. Hall, 380 N.C. 317, 370–71, 2022-NCSC-

17, ¶ 130, 868 S.E.2d 499, 538–39, cert. granted sub nom. Moore v. Harper, 2022 WL

2347621 (U.S. June 30, 2022) (No. 21-1271); Comm. to Elect Dan Forest v. Emps. Pol.

Action Comm., 376 N.C. 558, 612, 2021-NCSC-6, ¶ 92, 853 S.E.2d 698, 736 (2021)

(Newby, C.J., concurring) (“[T]he sovereign power resides with the people and is

67 NAACP V. MOORE

exercised by their representatives in the General Assembly.” (alteration in original)

(quoting State ex rel. Ewart v. Jones, 116 N.C. 570, 570, 21 S.E. 787, 787 (1895)). It

follows then that courts are not to look to the constitution of our state to determine

whether the people, via the legislature, are authorized to act, but only to see if such

action is prohibited.

¶ 81 More than eighty years ago in Leonard v. Maxwell, 216 N.C. 89, 3 S.E.2d 316

(1939), this Court rejected as nonjusticiable the same argument plaintiffs’ ask us to

address today. Specifically, this Court declined to interject itself in such a dispute,

and we noted that the General Assembly’s knowing failure to abide by constitutional

directives in apportionment did not prevent the legislature from performing

constitutional functions designated exclusively to that branch. Id. at 98–99, 3 S.E.2d

at 324.

¶ 82 The majority, however, eschews clear precedent and abandons constitutional

order to remove the Voter ID and Tax Cap Amendments from our constitution,

instead imposing its policy preferences on the people of North Carolina. As the Court

of Appeals correctly stated, “overwhelming, if not universal, authority” runs counter

to the Court’s decision today. N. C. State Conf. of NAACP v. Moore, 273 N.C. App.

452, 461, 849 S.E.2d 87, 94 (2020).

¶ 83 My colleagues confess that they must “refine” precedent to achieve their result.

What the majority is actually saying is that inclusion of the Voter ID and Tax Cap

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Amendments in our constitution is not acceptable, so they disguise radical arguments

as judicial reasoning to justify their political outcome.

¶ 84 As Justice Benjamin Curtis noted in his famous dissent:

Political reasons have not the requisite certainty to afford rules of juridical interpretation. They are different in different men. They are different in the same men at different times. And when a strict interpretation of the Constitution, according to the fixed rules which govern the interpretation of laws, is abandoned, and the theoretical opinions of individuals are allowed to control its meaning, we have no longer a Constitution; we are under the government of individual men, who for the time being have power to declare what the Constitution is, according to their own views of what it ought to mean. When such a method of interpretation of the Constitution obtains, in place of a republican Government, with limited and defined powers, we have a Government which is merely an exponent of the . . . individual political opinions of the members of this court.

Dred Scott v. Sandford, 60 U.S. (19 How.) 393, 620–21, 15 L. Ed. 691

(1857), superseded by Constitutional Amendment, U.S. Const. amends. XIII, XIV.

(1868) (Curtis, J., dissenting). Such is the case here.

¶ 85 “[T]he people . . . are the fountain of all power, to whom alone it of right belongs

to make or unmake constitutions or forms of government at their pleasure.” Brutus,

Essay I, The Essential Antifederalist 106. Our state constitution recognizes this

fundamental principle that all political power ultimately resides in the people. N.C.

Const. art. I, § 2. The North Carolina Constitution guarantees that “[t]he people of

69 NAACP V. MOORE

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[.]”

Id. art. I, § 3; see also Dickson v. Rucho, 366 N.C. 332, 344–45, 737 S.E.2d 362, 371

(2013). This provision reflects the right of the people to organize their government

for the protection of fundamental rights; relevant here, the right to vote in fair

elections and the right to enjoy the fruits of one’s own labor free from oppressive

taxation. These rights are manifestations of the “principles of popular sovereignty

and democratic self-rule.” Seizure of this power from the people runs counter to the

very ideals upon which our government is predicated.

¶ 86 It is ironic that the majority finds the ultimate safeguard for the will of the

people to be four individuals on this Court, not the more than 4.1 million votes cast

for the Voter ID and Tax Cap Amendments. The gatekeeping function for inclusion

of any such proposals into our constitution rests solely with the people and the

political process, not this Court. Because “the people of North Carolina never

intended to give this power to the judges,” State ex rel. Abbott v. Beddingfield, 125

N.C. 256, 269, 34 S.E. 412, 422–23 (1899) (Clark, J., dissenting), I respectfully

dissent.

I. Justiciability

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¶ 87 “It is emphatically the province and duty of the judicial department to say what

the law is.” Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177, 2 L. Ed. 60 (1803); see

also Bayard v. Singleton, 1 N.C. (1 Mart.) 5 (Super. Ct. L. & Eq. 1787). Courts are

limited to answering questions that are “historically viewed as capable of resolution

through the judicial process.” Flast v. Cohen, 392 U.S. 83, 95, 88 S. Ct. 1942, 1950,

20 L. Ed. 2d. 947 (1968). “Sometimes, however, ‘the law is that the judicial

department has no business entertaining the claim of unlawfulness—because the

question is entrusted to one of the political branches or involves no judicially

enforceable rights.’ ” Rucho v. Common Cause, 139 S. Ct. 2484, 2494, 204 L. Ed. 2d

931 (2019) (quoting Vieth v. Jubelirer, 541 U.S. 267, 277, 124 S. Ct. 1769, 1776, 158

L. Ed. 2d 546 (2004) (plurality opinion)).

¶ 88 Certain claims, like the one at issue today, cannot be judicially entertained as

they present a nonjusticiable political question. See Harper v. Hall, 380 N.C. at 413,

2022-NCSC-17, ¶ 237, 868 S.E.2d at 566 (Newby, C.J., dissenting) (“[C]ourts must

refuse to review issues that are better suited for the political branches; these issues

are nonjusticiable.”); accord Baker v. Carr, 369 U.S. 186, 217, 82 S.Ct. 691, 710, 7

L.Ed.2d 663 (1962) (emphasizing that courts must not involve themselves in “policy

determination[s] of a kind clearly for nonjudicial discretion”); see also Bacon v. Lee,

353 N.C. 696, 716–17, 549 S.E.2d 840, 854 (2001); Hoke Cnty. Bd. of Educ. v. State,

358 N.C. 605, 639, 599 S.E.2d 365, 391 (2004). Claims introducing a political question

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are said to be “outside the courts’ competence and therefore beyond the courts’

jurisdiction.” Rucho, 139 S. Ct. at 2494, 204 L. Ed. 2d at 931 (2019).

¶ 89 At its root, a question is political in nature if it invokes an issue that (1)

showcases “a textually demonstrable constitutional commitment of the issue to a

coordinate political department,” Zivotofsky ex rel. Zivotofsky v. Clinton, 566 U.S. 189,

195, 132 S. Ct. 1421, 1427, 182 L. Ed. 2d 423 (2012) (quoting Nixon v. United States,

506 U.S. 224, 228, 113 S. Ct. 732, 735, 122 L. Ed. 2d 1 (1993)), or (2) results in “policy

choices and value determinations.” Japan Whaling Ass’n v. Am. Cetacean Soc’y, 478

U.S. 221, 230, 106 S. Ct. 2860, 2866, 92 L. Ed. 2d 166 (1986). The foundational

purpose of this doctrine is to prevent the judiciary from entering political disputes

and undertaking questions of policy that are constitutionally committed to the other

branches and better resolved by the people and their representatives.4

¶ 90 Our constitution instructs that “[t]he legislative, executive, and supreme

judicial powers of the State government shall be forever separate and distinct from

each other.” N.C. Const. art. I, §6; John V. Orth & Paul M. Newby, The North

Carolina State Constitution 50 (G. Alan. Tarr ed., 2d ed. 2013) [hereinafter, Orth,

4 Some legal observers are critical of the purported politicization of the judiciary across the country. One could argue that the failure to follow the political question doctrine is a chief reason judges are perceived as being increasingly political. Quite simply, there are some pools we should not swim in. Unfortunately, judicial restraint yields to the excitement with which some judges approach the opportunity to make the law, or here, to remake our constitution. 72 NAACP V. MOORE

N.C. State Const.]. (“In the exercise of their right to regulate the state’s internal

government, North Carolinians separated political power into its constituent parts:

legislative, executive, and judicial.”). Indeed, “the separation of powers doctrine is

well established under North Carolina law.” Cooper v. Berger (Cooper II), 376 N.C.

22, 44, 852 S.E. 2d 46, 63 (2020) (quoting Bacon, 353 N.C. at 715, 549 S.E.2d at 853).

The independent exercise of each department is “[t]he very genius of our tripartite

government.” In re Dist. Ct. Admin. Ord., 365 N.C. 417, 417, 721 S.E.2d 225, 225

(2012) (per curiam order) (quoting In re Alamance Cnty. Ct. Facilities, 329 N.C. 84,

99–100, 405 S.E.2d 125, 133 (1991)). Built into this genius is a necessary prohibition

against one branch of government preventing another from executing its primary

duties. Cooper v. Berger (Cooper I), 370 N.C. 392, 410, 809 S.E.2d 98, 108 (2018); see

also Dickson, 366 N.C. at 345, 737 S.E.2d at 371 (“[T]he fundamental law” ensures

the inherent right of the General Assembly to fulfill its responsibilities “without

interference by any other department of the government.” (cleaned up)); Person v.

Doughton, 186 N.C. 723, 725, 120 S.E. 481, 482–23 (1923) (“The courts have no direct

supervisory power over the Legislature. The two are separate and distinct, though

co-ordinate branches of the same government.”). Failure to adhere to such principles

results in a violation of “a cornerstone of our state and federal governments.” State

ex rel. McCrory v. Berger, 368 N.C. 633, 649, 781 S.E.2d 248, 258 (2016) (citing State

ex rel. Wallace v. Bone, 304 N.C. 591, 601, 286 S.E.2d 79, 84 (1982)).

73 NAACP V. MOORE

¶ 91 The doctrine operates to constrain judicial action, and our nation’s highest

court has “identif[ied] [justiciability] as essentially a function of [ ] separation of

powers.” Baker, 369 U.S. at 217, 82 S. Ct. at 710, 7 L.Ed.2d 663. This Court has

recognized that “the Constitution of North Carolina includes an express separation

of powers provision.” Bacon, 353 N.C. at 716, 549 S.E.2d at 853–54 (emphasis

omitted). “Judicial review of a political question itself violates separation of powers

because the Court asserts a power it does not have to prevent the exercise of a specific

power held by a political branch.” Cooper I, 370 N.C. at 434–35, 809 S.E.2d at 124

(Newby, J., dissenting.).

¶ 92 By the plain text of our constitution, the legislature alone is granted the power

to propose amendments to the constitution. N.C. Const. art. XIII, § 4; see id., art I, §

6. Our constitution provides that:

[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.

Id., art. XIII, § 4. In addition, legislative initiation must follow the following

procedure:

(2) Every bill proposing a new or revised Constitution or an amendment or amendments to this Constitution or calling

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a convention of the people of this State, and containing no other matter, shall be submitted to the qualified voters of this State after it shall have been read three times in each house and signed by the presiding officers of both houses.

Id., art. II, § 22(2). If the required majority of each house of the legislature favorably

vote on a constitutional proposal or proposals, “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.” Id.,

art. XIII, § 4.5

¶ 93 Despite stating multiple times in its opinion that the legislature initiates the

process of amending the state constitution, the majority inexplicably concludes that

“[l]egislative [d]efendants have failed to demonstrate that” Article XIII presents a

textually demonstrable constitutional commitment of the issue to the sole discretion

of a coordinate branch of government. This simply strains credibility. If initiation of

the amendment process is not constitutionally committed to the General Assembly,

the majority declines to answer the glaring question—who possesses that authority?

¶ 94 As we have found in other instances involving a “textually demonstrable

constitutional commitment of the issue to a coordinate political department,” “judicial

review of the exercise of [legislative amendment] power would unreasonably disrupt

a core power of the [legislature].” Bacon, 353 N.C. at 717, 549 S.E.2d at 854 (quoting

5In addition to legislative initiation, constitutional amendments may be proposed by a “Convention of the People.” N.C. Const. art. XIII, § 3. 75 NAACP V. MOORE

Baker v. Carr, 369 U.S. 186, 217, 82 S. Ct. 691, 710, 7 L. Ed. 2d 663, 686 (1962)). Only

express constitutional provisions act to limit the powers of another branch of

government, and absent such provisions in the constitution itself, this Court

presumes valid legislative power. State ex rel. Martin v. Preston, 325 N.C. 438, 448–

49, 385 S.E.2d 473, 478 (1989); e.g., Hart v. State, 368 N.C. 122, 126, 774 S.E.2d 281,

284 (2015). The majority’s signal that it must “examine the constitutional provisions

to determine if those provisions limit the authority” of the 2018 General Assembly is

a question not proper for consideration as the amendment process is wholly within

the province of our legislature. See N.C. Const. art. XIII, § 4.

¶ 95 The majority also seems to suggest that the legislature was unqualified to act.

Indeed, the majority identifies the sole question before it as “whether the legislators

who passed the bills submitting these two amendments to the voters could validly

exercise the[ir] authority.”

¶ 96 The legislature alone is textually granted the power to determine the

qualifications of its members. N.C. Const. art. II, § 20. The judiciary does not and

has never had the ability to judge a legislator’s qualifications, until now. See State

ex rel. Alexander v. Pharr, 179 N.C. 699, 699, 103 S.E. 8, 8 (1920) (“This Court is

without jurisdiction, because the action is to try the title to a seat in the General

Assembly of North Carolina, and the Constitution . . . provides, ‘Each house (of the

General Assembly) shall be judge of the qualifications and elections of its own

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members,’ thereby withdrawing [such] inquiry from the consideration of the courts.”

(quoting N.C. Const. of 1868, art. II, § 22)); see also Nixon v. U.S., 506 U.S. 224 (1993)

(As the U.S. Constitution expressly grants the Senate the sole power to try

impeachments, the Court could not review whether a Senate impeachment rule

violated the U.S. Constitution. Thus, the question was nonjusticiable.).

¶ 97 Additionally, the instant case raises a political question that forces this court

to make value determinations and policy choices. “The General Assembly is the

‘policy-making agency’ because it is a far more appropriate forum than the courts for

implementing policy-based changes to our laws.” Cooper I, 370 N.C. at 429–30, 809

S.E.2d at 121 (Newby, J., dissenting) (quoting Rhyne v. K-Mart Corp., 358 N.C. 160,

169, 594 S.E.2d 1, 8 (2004)); see Lexington Insulation Co. v. Davidson County, 243

N.C. 252, 254, 90 S.E.2d 496, 497 (1955); see also Wachovia Bank & Tr. Co. v. Green,

236 N.C. 654, 659, 73 S.E.2d 879, 883 (1953) (“The public policy of the state is a matter

for the legislative branch of government and not for the courts.”). To ensure this, the

legislature is guaranteed “the inherent right to discharge its functions and to regulate

its internal concerns in accordance with law without interference by any other

department of the government.” Dickson, 366 N.C. at 345, 737 S.E.2d at 371 (quoting

Person v. Bd. of State Tax Comm’rs, 184 N.C. 499, 503, 115 S.E. 336, 339 (1922)).

Further, “respect for separation of powers requires a court to refrain from . . . making

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a policy determination of a kind clearly suited for nonjudicial discretion.” Harper,

380 N.C. at 413–414, 2022 NCSC 17, ¶ 237, 868 S.E.2d (Newby, C.J., dissenting).

¶ 98 This Court’s decision in Leonard v. Maxwell illustrates the judiciary’s

reluctance to tackle questions related to the authority of the legislature to exercise

constitutionally committed powers. There, presenting a nearly identical argument to

the one in the instant case, the plaintiff challenged legislation enacted by an illegally

constituted General Assembly. Specifically, the plaintiff, a merchant, challenged an

audit completed under the Emergency Revenue Act of 1937 (the Act), seeking to have

the Act declared void by alleging, inter alia, that the 1937 General Assembly that

passed the Act was unconstitutionally constituted based on the plain text of the North

Carolina Constitution.

¶ 99 At the time, the last census had occurred in 1930, so the General Assembly was

required to reapportion legislative districts during its first session following the 1930

census. See Leonard, 216 N.C. at 98, 3 S.E.2d at 324. Because the legislature failed

to follow express constitutional directives, the plaintiff argued that the 1937 General

Assembly was unconstitutionally constituted, and the Act, therefore, was not validly

enacted. See id. at 98, 3 S.E.2d at 324. This Court summarized this argument as

follows:

The third ground upon which the plaintiff assails the validity of the act is, that the General Assembly of 1937 was not properly constituted because no reapportionment was made at the first session after the last census as 78 NAACP V. MOORE

required by Art. II, secs. 4, 5, and 6 of the Constitution, and that none of the legislation attempted at this session can be regarded as possessing the sanctity of law.

Id., at 98, 3 S.E.2d at 324 (emphasis added)

¶ 100 In response, despite the fact that the General Assembly knowingly ignored a

clear constitutional directive, the defendant in Leonard cited several cases from other

states repudiating the plaintiff’s argument and holding that even when the

legislature is elected under decidedly malapportioned maps, it continues to possess

the full extent of its legislative powers. As an example, the defendant pointed to

People v. Clardy, in which a criminal defendant unsuccessfully argued that the

statute under which he was indicted was “unconstitutional and void for the reason

that the Constitution required a reapportionment of the General Assembly after each

Federal census, which had not been done” and thus the legislature “had no legal

existence.” See Defendant Appellee’s Brief at 4, Leonard, 216 N.C. 89 (No. 744) (citing

People v. Clardy, 334 Ill. 160, 161–62, 165 N.E. 638, 638–39 (1929)). The Illinois

Supreme Court rejected this argument as meritless because their state constitution

could not be read to punish citizens by forfeiture of popular sovereignty for failure of

the legislature to reapportion. Clardy, 334 Ill. at 167, 165 N.E. at 640–41. In

addition, the court determined that the failure of prior legislatures to properly

reapportion does not prevent subsequent members of the legislature from holding

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office. Id. at 167, 165 N.E. at 640. Ultimately, the Illinois Supreme Court held that

it was “not authorized by the Constitution of Illinois to declare that the General

Assembly that passed the [ ] Act [ ] was not a de jure legislative body and the members

thereof de jure members and officers of that General Assembly.” Id. at 167, 165 N.E.

at 640–41.

¶ 101 Plaintiffs in the current case make the same arguments presented in Leonard.

The Leonard Court posited that—when taken to its logical conclusion—the plaintiff’s

argument meant that

[if] the first session of the General Assembly after the 1930 census was the session directed by the Constitution to make the reapportionment, and [the General Assembly] failed to do so, it is suggested that no other session is competent to make the reapportionment or to enact any valid legislation and that henceforth no de jure or legally constituted General Assembly can again be convened under the present Constitution.

Leonard, 216 N.C. at 98–99, 3 S.E.2d at 324 (emphasis added). In other words, the

plaintiff’s argument required the conclusion that the 1937 General Assembly lacked

not only the authority to pass legislation, but lacked all power constitutionally

committed to the legislative branch.

¶ 102 This Court concluded that such was “[q]uite a devastating argument, if sound.”

Id. at 99, 3 S.E.2d at 324. Accordingly, we determined that the plaintiff’s questioning

of legislative authority posed a nonjusticiable political question. Id. at 99, 3 S.E.2d

at 324. (“The question is a political one, and there is nothing the courts can do about

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it . . . . They do not cruise in nonjusticiable waters.” (cleaned up)).

¶ 103 In reaching this conclusion, this Court cited another Illinois case from the

defendant’s brief, People ex rel. Fergus v. Blackwell, in which Illinois voters instituted

a quo warranto action against the members of the Fifty-Sixth Illinois General

Assembly. 342 Ill. 223, 223−24, 173 N.E. 750, 751 (1930). In Fergus the plaintiffs

asserted that:

every General Assembly since 1911, including the [current] General Assembly, had failed to reapportion the state into districts on the basis of population, as required by section 6 of article 4 of the Constitution of 1870, and that every General Assembly since 1911, including the [current one] . . . was illegal, unconstitutional, and void, and that the defendants are therefore not eligible and qualified to act as members of the General Assembly to represent the respective districts for which they were elected.

Id. at 224, 173 N.E. at 751.

¶ 104 The Illinois Supreme Court declined to address the scope of the Illinois General

Assembly’s authority:

We have held that this court has no power, under the Constitution, to compel the Legislature to reapportion the state, as required by the Constitution. What this court cannot do directly in this respect it cannot do indirectly. The sole basis for the present proceeding is the claim that, because of the failure of the Legislature to make the necessary reapportionment, no General Assembly since 1911 has had any de jure existence or validity. . . . On appellants’ theory, neither the Legislature as now composed nor any succeeding Legislature elected prior to a new reapportionment of the state would be a de jure body. It would therefore be impossible for the present or any

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succeeding Legislature to reapportion the state, since, on the theory of this proceeding, there could be no de jure Legislature until after a reapportionment has been made. But, since re-apportionment can be made only by the Legislature, it is apparent that on appellants’ theory, which is the foundation of this proceeding, reapportionment can never be made. Moreover, on the same theory, all laws enacted since 1911 would be invalid and no new laws could be enacted. . . . The matters complained of are solely within the province of the General Assembly, and the courts have no power to coerce or direct its action.

Id. at 225–26, 173 N.E. at 751–52 (emphasis added) (citations omitted).

¶ 105 Our Court in Leonard looked to such support in holding that the question of

whether the Act was void, based on a lack of legitimate legislative authority, was

nonjusticiable. See Leonard, 216 N.C. at 98–99, 3 S.E.2d at 324. The Court in

Leonard accepted that the legislature failed to engage in reapportionment following

the 1930 census, yet wholly rejected the argument [as non-justiciable] that the

legislature lacked authority to engage in constitutionally committed functions. 6 The

Court reasoned that precedent was against such a determination. Id. at 98–99, 3

S.E.2d at 324.

¶ 106 This Court in Leonard did not reach its conclusion because the issue of

apportionment was a political question, as the majority here claims. To be clear, the

plaintiff in Leonard was not asking the Court to order reapportionment of the 1930

6 Contrary to the majority’s dismissive analysis concerning de jure authority to act discussed further below, Leonard suggests that the malapportioned General Assembly had de jure authority. 82 NAACP V. MOORE

legislature. Rather, the plaintiff contended that the invalidity of the malapportioned

legislature limited the power of that body. The Court in Leonard recognized,

however, that it was not constitutionally authorized to review such an issue. Here,

according to the majority’s revisionist view, however, Leonard presented the limited

question of whether “the General Assembly’s failure to reapportion itself during the

first regular session after the decennial census meant that there could never be a

legitimately constituted General Assembly unless and until the North Carolina

Constitution was amended to provide for another manner of reapportionment.” This

was not the question that was before the Leonard Court—it was simply part of the

legal reasoning used by this Court in determining that the issue in Leonard was

nonjusticiable.

¶ 107 Taken to its logical end, the plaintiff’s argument in Leonard, if accepted by this

Court, would have resulted in a powerless legislature. Additionally, all legislation

passed by the subsequent sitting General Assemblies of 1932, 1934, 1936, 1938, and

1940 would have lacked the “sanctity of law.” Id. at 98, 3 S.E.2d. at 324. Over the

span of these years affected by malapportionment, the General Assembly proposed

nine constitutional amendments to the people of North Carolina, ranging in subject

matter from, ironically, increasing the maximum income tax rate to establishing the

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Department of Education, and even enlarging the number of justices on this Court. 7

North Carolina voters approved all nine amendments. See N.C. Sec’y State, North

Carolina Government 1585-1979: A Narrative and Statistical Analysis, 920−27 (John

L. Cheney, Jr. ed., 2d ed. 1981). Under the majority’s reasoning in the current case,

these amendments are potentially voidable.

7 The 1935 General Assembly proposed five amendments that 1) authorized classification of property for purposes of taxation, 2) increased the maximum tax rate from six percent to ten percent, 3) limited the power of state and local governments to borrow money without a vote of the people, 4) authorized the General Assembly to enlarge the Supreme Court from five to seven members, and 5) authorized the General Assembly to exempt up to $1,000 in value of property held in a homestead from taxation. See An Act to Amend the Constitution to Permit Classification of Property for Taxation, Encouragement of Home Ownership, to Increase the Limit for Income Taxation and to Limit the Power of State and Local Government to Borrow Money Without a Vote of the People, ch. 248, §§ 1−3, 1935 N.C. Pub. [Sess.] Laws 270, 270−71; An Act to Amend Section Six of Article Four of the Constitution of North Carolina Relating to the Supreme Court, and to Amend Section Five of Article Five of the Constitution of North Carolina Authorizing the General Assembly to Pass Laws Exempting From Taxation Not Exceeding One Thousand Dollars ($1,000.00) in Value of Property Held and Used as Place of Residence of the Owner, ch. 444, §§ 1−2, 1935 N.C. Pub. [Sess.] Laws 745, 745. In 1937 the General Assembly proposed two more amendments—one increasing the term of sheriffs and coroners from two years to four years and one authorizing the General Assembly to establish the Department of Justice. See An Act to Amend Section Twenty-Four of Article Four of the Constitution of North Carolina Relative to Sheriffs, ch. 241, § 1, 1937 N.C. Pub. [Sess.] Laws 457, 457; An Act to Amend the Constitution to Permit the General Assembly to Create a Department of Justice in Order to Secure the Uniform and Adequate Administration of the Criminal Laws of the State, ch. 447, § 1, 1937 N.C. Pub. [Sess.] Laws, 908, 908. Finally, the General Assembly of 1941 proposed two constitutional amendments. One created and organized the State Board of Education, and the other provided for twenty-one solicitorial districts through the State. See An Act to Amend the Constitution Providing for the Organization of the State Board of Education and the Powers and Duties of the Same, ch. 151 §§ 1−3, 1941 N.C. Pub. [Sess.] Laws, 240, 240−41; An Act to Amend Section Twenty- Three of Article Four of the Constitution of North Carolina, Relating to Solicitors, ch. 261, § 1, 1941 N.C. Pub. [Sess.] Laws 376, 376. 84 NAACP V. MOORE

¶ 108 Despite acknowledging that Leonard similarly involved validity of an action by

a malapportioned legislature, the majority further disregards Leonard, claiming its

applicability is limited because Baker v. Carr is more instructive and that the issue

in Leonard was not completely “analogous to the claim presented in this case.”

Curiously, however, and despite noting that “the claim at issue in this case is not a

claim that the General Assembly is unconstitutionally apportioned,” the majority

chooses to take guidance from a case that solely deals with reapportionment, i.e.,

Baker, rather than from a decision of this Court which is directly on point. See

Leonard.

¶ 109 The majority’s dismissal of our precedent here is deeply troublesome, yet

increasingly unsurprising. Nothing in Baker8 operates to change the analysis this

Court applied in Leonard, and the majority’s refusal to follow this Court’s previous

decision has no jurisprudential explanation.

¶ 110 In addition, the new test devised by the majority not only raises political

question concerns, but it requires policy choices. While the majority assures us that

nothing “convert[s] plaintiff’s claim into one that requires us to make ‘policy choices

and value determinations,’ ” these are hollow words. The fact that the majority’s

8 Making the majority’s reliance on such even more interesting, Baker offers a proposition in direct conflict with the majority’s position: “a legislature, though elected under an unfair apportionment scheme, is nonetheless a legislature empowered to act . . . .” Baker v. Carr, 369 U.S. at 250 n.5, 82 S. Ct. at 727 n.5, 7 L. Ed. 2d 663 (1962) (Douglas, J., concurring). 85 NAACP V. MOORE

chosen remedy is an ideational test calling for policy choices and value

determinations clues one into the political nature of the question at hand.

¶ 111 Based on this test, we must look at the legislature to “consider whether the

votes of legislators who were elected as a result of unconstitutional gerrymandering

were potentially decisive.” If there is “no meaningful chance that a lawfully

constituted body ‘would produce a different outcome,’ ” legislative action is

presumptively valid under the de facto officer doctrine. However, if there is a chance

a different outcome could result, courts must inspect each legislative action to

consider whether the enacted constitutional amendment “threatens principles of

popular sovereignty and democratic self-rule.” The majority orders the lower court

to discern whether an amendment “will immunize legislators from democratic

accountability,” “perpetuate the ongoing exclusion of a category of voters from the

political process,” or “intentionally discriminate against a particular category of

citizens who were also discriminated against in the political process leading to the

legislators’ election.” “If any of these factors are present,” the majority goes on to say,

a court must “invalidate the challenged amendment.”

¶ 112 How do we know if there is a chance for a different outcome? What data should

the lower courts utilize to make this determination? Is the majority suggesting that

votes in the legislature are, or should be, monolithic? How would the Tax Cap

Amendment immunize legislators from democratic accountability, perpetuate the

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continued exclusion of a category of voters, or constitute intentional discrimination?9

Or, does this test only apply to Voter ID?10

¶ 113 Determining which laws would be valid based on the majority’s newly created

test would inherently require courts to look into the substance of each legislative

action and weigh the policy implications of those actions. Without an express

provision in our constitution on such an issue, the majority here uses its self-defined

terms of “democratic self-rule” and “popular sovereignty” as an “unrestricted license

to judicially amend our constitution.” Harper v. Hall, 380 N.C. at 421, 2022-NCSC-

17, ¶ 244, 868 S.E.2d at 570 (Newby, C.J., dissenting). The majority’s test “inherently

9 To the extent that one would believe that a tax cap falls into this third category, studies in other states suggest the opposite. See Leah Byers, The Effects of Georgia's 6 Percent Income Tax Cap (2018), https://www.nccivitas.org/2018/effects-georgias-6-percent- income-tax-cap/ (finding that following the 2014 ratification of a 6% income cap amendment by Georgia voters, subsequent years showed (1) an increase in education spending by $2.5 billion from fiscal years 2014 to 2019 (Georgia Budget and Policy Institute, July 1, 2018 (citing Georgia Department of Instruction and Georgia’s 2019 Fiscal Year Budget (HB 684)); and (2) the state’s high bond rating, which has been maintained for almost 20 years (Gov. Kemp: Georgia Secures AAA Bond Rating in 2022, June 13, 2022) (https://gov.georgia.gov/press-releases/2022-06-13/gov-kemp-georgia-secures-aaa-bond- rating-2022). 10 The National Bureau of Economic Research released a nationwide study concluding

that “[s]trict ID laws’ overall effects [on minority voter participation] do not increase over time, they remain close to zero and non-significant whether the election is a midterm or presidential election, and whether the laws are the more restrictive type that stipulate photo IDs.” Enrico Cantoni & Vincent Pons, Strict ID Laws Don’t Stop Voters: Evidence from a U.S. Nationwide Panel, 2008-2018 2 (NBER Working Paper No., 25522, 2021), https://www.nber.org/system/files/working_papers/w25522/w25522.pdf. Moreover, research found that strict ID laws have “no significant negative effect on registration or turnout, overall or for any subgroup defined by age, gender, race, or party affiliation.” Id. at 1-2. Pertinent here, “strict ID requirements do not decrease the participation of ethnic minorities relative to whites.” Id. at 2. . 87 NAACP V. MOORE

requires policy choices and value determinations and does not result in a neutral,

manageable standard.” Id. at 433–34, 2022-NCSC-17, ¶ 267, 868 S.E.2d at 577. This

is true because the majority’s decision is not rooted in the constitution but in political

considerations.

¶ 114 Proposing amendments to our state constitution is a power clearly granted to

the General Assembly. The majority here egregiously violates separation of powers,

and, based on state and federal precedent, this case presents a nonjusticiable political

question.

II. De Facto and De Jure Authority

¶ 115 A governmental official either has the authority to act, or he does not.

Consistent with this fact, well-established judicial doctrines have emerged.

Specifically, courts have recognized instances in which governmental officials

maintain the full power of their office, and other occasions when individuals attempt

to occupy an office but have no power to act. The former may be either de jure or de

facto officers; the latter are known as usurpers. None of these recognized legal

distinctions, however, have ever limited or hybridized legislative power as the

majority does here. Imagining its creation as the “best” for the situation at hand, the

majority excises from legislative authority those actions it deems out of the

“ordinary.” To be sure, there is no legal basis for this judicial limitation on legislative

authority, and the majority throws settled law into confusion.

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¶ 116 “[A] legislature, though elected under an unfair apportionment scheme, is

nonetheless a legislature empowered to act . . . .” Baker v. Carr, 369 U.S. at 250 n.5,

82 S. Ct at 727 n.5, 7 L. Ed. 2d 663 (Douglas, J., concurring); see also Buckley v.

Valeo, 424 U.S. 1, 142, 96 S.Ct. 612, 693, 46 L. Ed. 2d 659 (1976) (per curiam); Ryder

v. United States, 515 U.S. 177, 180, 115 S. Ct. 2031, 2034, 132 L. Ed. 2d (1995);

Martin v. Henderson, 289 F. Supp. 411, 414 (E.D. Tenn. 1967); Everglades Drainage

League v. Napoleon B. Broward Drainage Dist., 253 F. 246, 252 (S.D. Fla. 1918).

¶ 117 A de jure officer is one who has the legal right or title to the office. People ex

rel. Duncan v. Beach, 294 N.C. 713, 719–20, 242 S.E.2d 796, 800 (1978). Essentially,

an individual possessing de jure authority is one rightfully elected or otherwise

appointed to the office he holds, who thus may exercise all rights and responsibility

associated with that office. See In re Wingler, 231 N.C. 560, 563, 58 S.E.2d 372, 374

(1950). North Carolina courts have never suggested that our General Assembly could

not otherwise “continue exercising the powers granted to our state’s legislative

branch,” N. C. State Conf. of NAACP v. Moore, 273 N.C. App. at 462, 849 S.E.2d at

94, under de jure authority despite issues regarding malapportioned districts. See

Pender County v. Bartlett, 361 N.C. 491, 649 S.E.2d 364 (2007), aff’d sub nom. Bartlett

v. Strickland, 556 U.S. 1, 129 S. Ct. 1231, 173 L. Ed. 2d 173 (2009). Moreover, the

legislature involved here was never judicially stripped of any authority. Cf.

Butterworth v. Dempsey, 237 F. Supp. 302, 311 (D. Conn. 1964) (enjoining the

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Connecticut legislature from passing any additional legislation unless reconstituted

in constitutionally drawn districts). Accordingly, it appears that the 2018 General

Assembly would be better classified as a legislature with de jure authority. See

Leonard, 216 N.C. at 98–99, 3 S.E.2d at 324.

¶ 118 Even assuming, however, that the members of the 2018 General Assembly

were not de jure officers, those legislators certainly possessed full de facto authority.

“A de facto officer may be defined as one whose title is not good in law, but who is in

fact in the unobstructed possession of an office and discharging its duties in full view

of the public, in such manner and under such circumstances as not to present the

appearance of being an intruder or usurper.” Waite v. Santa Cruz, 184 U.S. 302, 323,

22 S. Ct. 327, 334, 46 L. Ed 552 (1902). A de facto officer’s official acts are

categorically valid, even if that individual is found to lack de jure legal authority.

¶ 119 In application, the acts of a de facto officer are as concretely binding as those

of a de jure officer. See Phillips v. Payne, 92 U.S. 130, 132, 23 L. Ed. 649 (1875) (“The

acts of an officer de facto, within the sphere of the powers and duties of the office he

assumes to hold, are as valid and binding with respect to the public and third persons

as if they had been done by an officer de jure.”); Burke v. Elliott, 26 N.C. (4 Ired.) 355,

359–60 (1844) (“[T]he acts of officers de facto are as effectual, as far as the rights of

third persons or the public are concerned, as if they were officers de jure.”); Joseph

v. Cawthorn, 74 Ala. 411, 415 (1883) (“There is no distinction in law between the

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official acts of an officer de jure, and those of an officer de facto. So far as the public

and third persons are concerned, the acts of the one have precisely the same force and

effect as the acts of the other.”). The Supreme Court has described the rationale for

not disturbing the official acts of de facto officers:

The de facto officer doctrine confers validity upon acts performed by a person acting under the color of official title even though it is later discovered that the legality of that person's appointment or election to office is deficient. The de facto doctrine springs from the fear of the chaos that would result from multiple and repetitious suits challenging every action taken by every official whose claim to office could be open to question, and seeks to protect the public by insuring the orderly functioning of the government despite technical defects in title to office.

Ryder, 515 U.S. at 180, 115 S. Ct. at 2034 (cleaned up). The power of de facto officers

has been repeatedly affirmed both by the courts of this state and their federal

counterparts.

¶ 120 Nothing in the de facto doctrine speaks of any limitation on authority. To the

contrary, and ultimately to ensure stability, a de facto legislator enjoys the same

scope of authority, and his or her actions the same validity, as a de jure legislator.

See In re Wingler, 231 N.C. at 565, 58 S.E.2d at 376 (“The de facto doctrine is

indispensable to the prompt and proper dispatch of governmental affairs.”).

¶ 121 Courts are “not allowed to range so far afield as to hamstring state legislatures

and deprive States of effective legislative government.” Fortson v. Toombs, 379 U.S.

621, 625–26, 85 S. Ct. 598, 601, 13 L. Ed. 2d 527 (per curiam) (Harlan, J., concurring

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in part and dissenting in part), amended by 380 U.S. 929, 85 S. Ct. 932, 13 L. Ed. 2d

819 (1965). Until today, no court, federal or state, has concluded that a legislative

body which has de facto authority at a minimum should undergo individual ex post

evaluations of constitutionally prescribed actions. Moreover, no court, federal or

state, has excised individual legislative responsibilities after determining that

legislators possess de facto authority, as the majority does here. In essence, the

majority has so restricted legislative authority that it has effectively dissolved the

legislature regarding its constitutionally defined role in proposing constitutional

amendments.

¶ 122 Finally, when no de jure or de facto authority exists, an individual holding

office is designated a usurper. “A usurper is one who undertakes to act officially

without any actual or apparent authority. Since he is not an officer at all or for any

purpose, his acts are absolutely void, and can be impeached at any time in any

proceeding.” In re Wingler, 231 N.C. at 564, 58 S.E.2d at 375 (citing State v. Shuford,

128 N.C. 588, 38 S.E. 808 (1901); State ex rel. Van Amringe v. Taylor, 108 N.C. 196,

12 S.E. 1005 (1891); People ex rel. Norfleet v. Staton, 73 N.C. 546, 21 Am.Rep. 479

(1875); Keeler v. City of Newbern, 61 N.C. 505 (1868)). This usurper category is the

final of the three judicially recognized types of authority that one may possess.

¶ 123 The majority knows that its unprecedented approach has no basis in existing

law. Understanding that the members were not usurpers, but unwilling to accept

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that the de facto doctrine legitimizes all actions of the 2018 General Assembly, even

those contested in the instant case, the majority claims that North Carolina’s

Constitution suddenly requires carving out a fourth category of authority. The reality

is that well-established law is simply insufficient to reach the majority’s desired

result.

¶ 124 Indeed, the majority expressly acknowledges that members of the 2018

General Assembly were de facto legislators under the “belie[f] [that] the [de facto]

doctrine should be applied to legislators who remain in office even after it has been

determined they were elected pursuant to unconstitutional gerrymandering.”

Specifically, the majority refuses to accept plaintiff’s argument that “the General

Assembly . . . lack[ed] any colorable claim to exercise the powers delegated to the

legislature,” recognizing instead that the “actions undertaken by the legislators post-

Covington are presumptively valid as the actions of de facto officers.” However, the

majority uses this as a pivot point to state that it cannot permit full approval of the

acts of the 2018 General Assembly because doing so “require[es] the public to be

bound by the actions of an individual who . . . lacked authority to legitimately exercise

sovereign power.”

¶ 125 To be sure, this is not a novel legal situation requiring the unprecedented

actions by the majority. Courts have declared officers, including elected officials, to

incorrectly hold office numerous times. These doctrines have been developed to

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minimize any resulting chaos and to maintain order. See EEOC v. Sears, Roebuck &

Co., 650 F.2d 14, 17 (2d Cir. 1981) (“The de facto officer doctrine was developed to

protect the public from the chaos and uncertainty that would ensue if actions taken

by individuals apparently occupying government offices could later be invalidated by

exposing defects in the officials’ titles.”). The majority’s approach defeats the very

purpose for which these doctrines on authority have developed.

¶ 126 Important here, and despite the majority’s assertion to the contrary, the

decision in Covington did nothing to disturb the authority of the 2018 legislature.

Specifically, no action by any court tied the legislators’ hands or truncated their terms

of office. The decision in Covington to allow the 2018 General Assembly to remain in

office is constitutionally significant. While it appears that the plaintiffs may have

argued to the Covington court that the legislature’s authority to act was an unsettled

question of state law, article VI section 10 of our State’s constitution instructs that

“in the absence of any contrary provision, all officers in this State, whether appointed

or elected, shall hold their positions until other appointments are made or, if the

offices are elective, until their successors are chosen and qualified.” N.C. Const. art.

VI, § 10. This constitutional provision, in tandem with the decision in Covington,

mandates that the 2018 General Assembly members “hold their offices” until

replaced, with all commensurate authority attached. Thus, the question was not

unsettled, just not fully explored.

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¶ 127 Legislators in the 2018 General Assembly post-Covington continued in office

to serve out the remainder of their terms. During that time, the General Assembly

passed various pieces of legislation, from laws dealing with election integrity to those

dealing with law enforcement stops. The General Assembly also proposed several

constitutional amendments be brought before the people of this state for ratification.

Operating pursuant to our state’s constitution, each member of the General Assembly

had the full authority to perform his or her duties. No restrictions were, or have been

placed upon that body, until today. It would be nonsensical for a legislator at that

time to believe that she, on the one hand, had the constitutional authority to vote on

one piece of legislation, yet lacked the authority to vote on another bill; it is equally

confounding for the majority to conclude as much.

¶ 128 At least until today, this Court has stressed that “[e]ndless confusion and

expense would ensue if the members of society were required to determine at their

peril the rightful authority of each person occupying a public office before they

invoked or yielded to his official action.” In re Wingler, 231 N.C. at 565–66, 58 S.Ed.2d

at 376. Now, despite electing their legislators to office, North Carolinians are no

longer able to trust that a legislator, or the legislature as a whole, has the requisite

authority to act. And being that the legislature is merely a law-enacting agent of the

true sovereign, i.e., the people, it is the authority of the people that is truly at risk.

95 NAACP V. MOORE

¶ 129 This does not even begin to speak of the chaos and confusion that this case,

and others like it, have caused. The people of North Carolina understand that they

approved the Voter ID and Tax Cap Amendments by overwhelming majorities.

Multiple lawsuits in state and federal courts seem to be the norm for politically

charged issues. The varied and inconsistent rulings from our courts only adds to the

confusion surrounding the status of these provisions. And this all stems, as stated

above, from judges who are unwilling to engage in judicial restraint and yield to the

political question doctrine.

¶ 130 Further contrary to the majority’s assertion that this case presents “completely

unprecedented circumstances,” several examples from North Carolina’s redistricting

jurisprudence in which a General Assembly elected pursuant to malapportioned

maps enacted legislation to propose a constitutional amendment are pertinent here.

In each of these cases, the invalidly constituted General Assembly was directed to

redraw its maps while the invalidly elected legislators finished their respective terms.

In none of these cases did the court retroactively nullify acts of the malapportioned

General Assembly or “impose limits” on the General Assembly’s constitutionally

committed legislative authority. With this decision, the majority ignores these cases

and creates an entirely new and unprecedented remedy.

¶ 131 Most notably, the majority ignores this Court’s decision in Pender County v.

Bartlett, in which we declared a legislative reapportionment plan unconstitutional

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and then crafted an appropriate remedy. See 361 N.C. at 510, 649 S.E.2d at 376. In

November 2003, the General Assembly enacted a plan to reapportion the House of

Representatives (the 2003 House Plan). See An Act to Establish House Districts,

Establish Senatorial Districts, and Make Changes to the Election Laws and to Other

Laws Relating to Redistricting, S.L. 2003-434, §§ 1–2, 2003 N.C. Sess. Laws (1st

Extra Sess. 2003) 1313, 1313–92. Five county commissioners challenged the 2003

House Plan as unconstitutional in violation of the Whole County Provision (WCP) of

article II, section 5 of the North Carolina Constitution because the Plan divided

Pender County among House Districts 16 and 18. Pender County, 361 N.C. at 495,

649 S.E.2d at 367. This Court held the division of Pender County between two

districts violated the WCP. Id. at 493, 649 S.E.2d. at 366.

¶ 132 Having held the 2003 House Plan unconstitutional, we ordered the General

Assembly to redraw the affected House districts to comply with the WCP. Id. at 510,

649 S.E.2d at 376. When our decision in Pender County was filed in August 2007,

however, the unconstitutional 2003 House Plan had been used in both the 2004 and

2006 election cycles to elect legislators to the House of Representatives. N.C. Gen.

Assembly, https://www.ncleg.gov/redistricting (last visited Aug. 14, 2022).

Accordingly, our remedy required a General Assembly consisting of some number of

unconstitutionally elected members to exercise its constitutional authority to “revise

the representative districts and the apportionment of Representatives among those

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districts.” N.C. Const. art. II, § 5; see Pender County, 361 N.C. at 510, 649 S.E.2d at

376. We expressed no doubt that the General Assembly could exercise this authority,

despite being elected under the unconstitutional plan.

¶ 133 Additionally, we chose to stay our order to redraw the House map until after

the 2008 election cycle:

We are cognizant that the General Assembly will need time to redistrict not only House District 18 but also other legislative districts directly and indirectly affected by this opinion. The North Carolina General Assembly is now in recess and is not scheduled to reconvene until 13 May 2008, after the closing of the period for filing for elective office in 2008. We also realize that candidates have been preparing for the 2008 election in reliance upon the districts as presently drawn. Accordingly, to minimize disruption to the ongoing election cycle, the remedy explained above shall be stayed until after the 2008 election. . . . At the conclusion of the 2008 election, House District 18 and other impacted districts must be redrawn.

Pender County, 361 N.C. at 510, 649 S.E.2d at 376 (citation omitted).

¶ 134 In determining it was appropriate to permit another election under the

unconstitutional 2003 House Plan, we relied on guidance from one of the Supreme

Court’s landmark apportionment cases. See id. at 510, 649 S.E.2d at 376 (citing

Reynolds v. Sims, 377 U.S. 533, 585, 84 S. Ct. 1362, 1394, 12 L. Ed. 2d 506 (1964)).

In Reynolds, the Supreme Court held that Alabama’s legislative reapportionment

plans violated the Equal Protection Clause of the Fourteenth Amendment. 377 U.S.

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at 568–70, 84 S. Ct. at 1384–86. In addressing “proper remedial devices” in state

legislative apportionment cases, the Supreme Court explained that

under certain circumstances, such as where an impending election is imminent and a State’s election machinery is already in progress, equitable considerations might justify a court in withholding the granting of immediately effective relief in a legislative apportionment case, even though the existing apportionment scheme was found invalid. In awarding or withholding immediate relief, a court is entitled to and should consider the proximity of a forthcoming election and the mechanics and complexities of state election laws, and should act and rely upon general equitable principles. With respect to the timing of relief, a court can reasonably endeavor to avoid a disruption of the election process which might result from requiring precipitate changes that could make unreasonable or embarrassing demands on a State in adjusting to the requirements of the court’s decree.

Id. at 585, 84 S. Ct. at 1393–1394. In providing this guidance, the Supreme Court did

not indicate that a state legislature elected under a malapportioned legislative map

might be powerless or semi-powerless. Likewise, in applying this guidance in Pender

County, we were not concerned that requiring the next election cycle to proceed under

the unconstitutional 2003 House Plan would result in an impotent General Assembly.

Indeed, the legislators elected in 2008 served full terms and the validity of their

legislative actions has never been retrospectively questioned. Notably, like in the

instant case, the malapportioned General Assembly elected in 2008, knowing that it

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was malapportioned, proposed a constitutional amendment that was eventually

enacted.11

¶ 135 Similarly, in Drum v. Seawell a North Carolina voter challenged article II,

sections 5 and 6 of the North Carolina Constitution and the enacted House, Senate,

and congressional reapportionment plans as violative of his rights under the Equal

Protection Clause of the Fourteenth Amendment. Drum v. Seawell, 249 F. Supp. 877,

879 (M.D.N.C. 1965) (Drum I), aff’d per curiam, 383 U.S. 831, 86 S. Ct 1237, 16 L.

Ed. 2d 298 (1966). At the time, article II, sections 5 and 6 of the North Carolina

Constitution governed apportionment of the House and provided that the House

would have one hundred twenty members with each county receiving at least one

representative. See id. at 880, N.C. Const. of 1868, art. II, § 5 (1875). The court held

that this apportionment scheme violated the Equal Protection Clause because it

“requir[ed] that each county be afforded at least one Representative regardless of its

population” and declared the constitutional provisions “null and void.” Id., 249 F.

Supp. at 880. In addition to invalidating the challenged House reapportionment plan,

11 The General Assembly elected in 2008 enacted House Bill 1307, which proposed an amendment to Article VII, section 2 of the North Carolina Constitution to prohibit felons from serving as sheriffs. See An Act to Amend the Constitution of North Carolina to Provide that No Person Convicted of a Felony is Eligible to be Elected Sheriff, S.L. 2010-49, § 1, 2010 N.C. Sess. Laws 255, 255–56. It was approved by 84.96% of North Carolina voters. N.C. State Bd. of Elections, https://er.ncsbe.gov/?election_dt=11/02/2010&county_id=0&office=REF&contest=0 (last visited August 1, 2022); see also John V. Orth & Paul Martin Newby, The North Carolina State Constitution 170 (2d ed. 2013) (“In 2010 the voters approved an amendment that prevents convicted felons from serving as sheriff . . . .”). 100 NAACP V. MOORE

which had been enacted in 1961 (the 1961 House Plan), the court found the disparities

in population among the fifty Senate districts, which had been enacted in 1963 (the

1963 Senate Plan), were also null and void. Id. at 880–81. Finally, the court held that

the statute creating the State’s eleven congressional districts was unconstitutionally

discriminatory. Id. at 880.

¶ 136 Having thus determined all three plans were unconstitutional, the court

ordered the existing General Assembly to reapportion the State “as nearly equally as

possible on a population based representation.” Id. at 881. This mandate required a

substantial, if not total, overhaul of the 1961 House Plan and the 1963 Senate Plan.

By the time the court filed its Drum I opinion on November 30, 1965, however, the

1963 Senate Plan had been used in the 1964 election cycle, and the 1961 House Plan

had been used in both the 1962 and 1964 election cycles. Thad Eure, N.C. Sec’y of

State, North Carolina Government 1585-1979: A Narrative and Statistical History

534, 536 (John L. Cheney, Jr. ed., 2d ed. 1981). Accordingly, most, if not all, of the

1965 General Assembly ordered by Drum I to reapportion the state’s House, Senate,

and congressional seats hailed from unconstitutional districts. Nonetheless, like this

Court’s decision in Pender County, the court in Drum I expressed no concern that the

unconstitutionally constituted 1965 General Assembly could exercise its authority to

apportion legislative districts or otherwise utilize its legislative power. The court

simply ordered the malapportioned General Assembly to redraw all three

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apportionment maps in time for the 1966 election cycle and permitted the incumbent

legislators to finish their terms. 249 F. Supp. at 881. The General Assembly at issue

there continued to exercise its legislative authority completely unfettered; again, a

constitutional amendment was proposed that was subsequently approved by the

voters of North Carolina.12

¶ 137 In accord with the remedial order in Drum I, the 1965 General Assembly

reapportioned its House, Senate, and congressional districts before the 1966

primaries, but the same plaintiff, representing a group of North Carolina litigants,

again challenged all three remedial plans. Drum v. Seawell (Drum II), 250 F. Supp.

922, 923–24 (M.D.N.C. 1966). After examining the remedial plans, the Middle District

of North Carolina determined that the new House and Senate plans met “the

minimum federal constitutional standards,” but the redrawn congressional plan was

still “constitutionally invalid.” Id. at 924, 925. Nevertheless, in ordering a remedy,

the court chose to permit the 1966 congressional elections to proceed under the

unconstitutional remedial map:

12 The 1965 General Assembly successfully proposed an amendment to the North Carolina Constitution that authorized the creation of the Court of Appeals. See An Act to Amend Article IV of the Constitution of North Carolina to Authorize Within the Appellate Division of the General Court of Justice an Intermediate Court of Appeals, ch. 877 § 1, 1965 N.C. Sess. Laws 1173, 1173–74. On 2 November 1965, 73.61% of voters approved the amendment, Thad Eure, N.C. Sec’y of State, North Carolina Manual 1967, at 328, and the General Assembly enacted legislation establishing the Court of Appeals in 1967. See An Act to Create a Court of Appeals, ch. 108, § 1, 1967 N.C. Sess. Laws 144, 144–55. Since its establishment, the existence of the Court of Appeals has never been questioned. 102 NAACP V. MOORE

While we feel bound to reject the [congressional] plan, we nevertheless recognize the good faith effort of the Legislature to bridge the tremendous gulf which existed between the status quo and the constitutional requirements. We also recognize the obligation of the federal courts to defer to the prerogative of the legislative branch of the State in this field. Recognizing also the imminence of the 1966 primaries, we, in the exercise of our equitable discretion, will stay our mandate further and permit the congressional elections of 1966 to take place under the [remedial congressional plan].

Id. at 925. Similar to Pender County and Reynolds, the Drum II opinion expressed

no concern that permitting an election under the unconstitutional congressional plan

might result in a congressional delegation that lacked the power to legislate.

¶ 138 Once again, in 1984, the Eastern District of North Carolina mandated the

exact same remedy when it declared North Carolina’s legislative maps invalid under

the Voting Rights Act (VRA) and ordered the General Assembly to redraw them. See

Gingles v. Edmisten, 590 F. Supp. 345, 350, 376 (E.D.N.C. 1984). In April 1982, the

General Assembly enacted new House and Senate redistricting maps based on the

1980 decennial census (the 1982 Legislative Plans). Id. at 351. A group of registered

voters in North Carolina challenged the 1982 Legislative Plans as violative of Section

2 of the VRA, alleging that, in designing and enacting these plans, the legislature

strategically “ma[d]e[ ] use of multi-member districts” in certain parts of the state to

“dilute[ ] the voting strength” of black voters. Id. at 349. In January 1984, the court

determined that the challenged districts—five multi-member House districts, one

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multi-member Senate district, and one single-member Senate district—all violated

Section 2 of the VRA and had to be redrawn. Id. at 349–50. However, by the time

the court reached its decision, the 1982 Legislative maps had already been used in

the 1982 election cycle, see Thad Eure, N.C. Sec’y of State, North Carolina Manual

1983-1984, at 199–200, 287–89, 949–54 (John L. Cheney, Jr. ed), meaning the 1983

General Assembly was malapportioned.

¶ 139 In designating a remedy, in Gingles the court simply ordered the

malapportioned 1983 General Assembly to redraw the problematic maps by March

1984, writing that “[i]n deference to the primary jurisdiction of state legislatures over

legislative reapportionment, we will defer further action to allow the General

Assembly of North Carolina an opportunity to exercise that jurisdiction in an effort

to comply with § 2 [of the VRA] in the respects required.” Gingles, 590 F. Supp. at

376 (citation omitted). The Supreme Court affirmed the Gingles holding, including

its remedy, as to all but one challenged district. Thornburg v. Gingles, 478 U.S. 30,

80, 106 S. Ct. 2752, 2781, 92 L. Ed. 2d 25 (1986). Just as the courts in Pender County,

Reynolds, and Drum I had done, neither the Eastern District of North Carolina nor

the United States Supreme Court restricted the authority of the malapportioned 1983

General Assembly to redraw the legislative maps or otherwise exercise legislative

authority. The 1983 General Assembly continued to exercise the full scope of its

legislative authority, successfully proposing two constitutional amendments that

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were approved by North Carolinians in 1984.13 The validity of those amendments

has never been questioned.

¶ 140 Without explanation, the majority overlooks these cases and extends the

remedial authority of this Court further than ever before. This majority’s avoidance

of our jurisprudence is not, however, an isolated incident. In recent weeks, this same

majority acted to expedite oral argument in another case that, like this one,

implicates this Court’s power to police the General Assembly. See Harper v. Hall, No.

413PA21, 2022 WL 2982880 (N.C. July 28, 2022) (Order on Motion for Expedited

Hearing and Consideration). As explained by the dissent to that order, the majority

chose to expedite the pending appeal in Harper, which involves the validity of

legislative and congressional redistricting maps, despite “the absence of any

identifiable jurisprudential reason.” Harper, 2022 WL 2982880, at *1 (Barringer, J.,

dissenting). The same is true here.

13 The 1983 General Assembly proposed a constitutional amendment to permit “the General Assembly [to] enact general laws to authorize the creation of an agency to issue revenue bonds to finance the cost of capital projects consisting of agricultural facilities.” See An Act to Amend Article V of the Constitution of North Carolina to Authorize the General Assembly to Create an Agency to Issue Revenue Bonds to Finance Agricultural Facilities Projects, Subject to the Approval of the Electorate, ch. 765, § 1, 1983 N.C. Sess. Laws 885, 885. On May 8, 1984, 53.87% of voters approved this amendment. N.C. Sec’y of State, North Carolina Manual 1985-1986 at174–75 (John L. Cheney, Jr. ed.). The same General Assembly also proposed a constitutional amendment requiring that the Attorney General and District Attorneys to be duly authorized to practice law. See An Act to Amend the North Carolina Constitution to Require that District Attorneys and the Attorney General be Licensed to Practice Law, ch. 298, §§ 1-2, 1983 N.C. Sess. Laws 225, 225. Over seventy-five percent of North Carolina voters approved this amendment on November 6, 1984. N.C. Sec’y of State, North Carolina Manual 1985-1986 at 176–77 (John L. Cheney, Jr. ed.). 105 NAACP V. MOORE

¶ 141 The majority clearly appreciates that the idea of voiding all legislative

authority would inevitably result in the chaos and confusion courts have heretofore

protected against. The problem with this conclusion, however, is that this exercise of

judicial selectivity creates greater chaos and confusion. If authority is ephemeral,

how does one truly know when the General Assembly possesses the power to act?

What about members of Congress elected from unlawful districts—would they also

lose the power to vote on proposed federal constitutional amendments?

¶ 142 The majority attempts to position its decision as a narrow one only related to

constitutional amendments. It is unclear, however, why the logic applied here would

not apply to other actions taken by the legislature—or that legislatures may take in

the future.

¶ 143 Indeed, overriding a governor’s veto similarly requires three-fifths of the

members of both chambers of the General Assembly’s approval. N.C. Const. art. II,

§ 22. In the same 2018 session and within weeks of the constitutional amendments

being proposed, the legislature overrode the governor’s veto three times.14 The

majority declines to answer why veto overrides are not similar in kind to the issue

here, but individuals or groups who advocated against the veto overrides would

14 Interestingly enough, one of these pieces of vetoed legislation was the state budget. 106 NAACP V. MOORE

almost certainly seize upon the Court’s reasoning to apply this decision to other

actions of the legislature.

¶ 144 Further, if constitutional amendments are the sole focus, would ratifying

amendments to the federal Constitution be within the purview of this decision? Votes

to ratify such amendments only require a simple majority in the legislature. A

malapportioned legislature ratified the Twentieth Amendment on January 5, 1933.

Under the majority’s reasoning here, is this ratifying vote voidable?

¶ 145 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, defies logic. Legislative

defendants argue as much, contending that there is “no principled way to distinguish

between the constitutional amendments the plaintiffs have challenged in this

litigation and all the other legislative acts the challenged legislators undertook.”

Judges should “believe in the validity of the reasons given for [their] decision at least

in the sense that [they are] prepared to apply them to a later case in which [they]

cannot honestly distinguish.” Louis L. Jaffe, English and American Judges as

Lawmakers, 38 (1969). In limiting their analysis, my colleagues demonstrate just

how ill-founded their reasoning is.

¶ 146 In discussing legislative defendants’ argument regarding this point, the

majority specifically focuses on the case of Dawson v. Bomar. Interestingly, the

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majority dedicates two pages to Dawson simply to conclude its inapplicability to the

instant case. Whether this is an attempt by the majority to convince the public, or

frankly themselves, of Dawson’s irrelevance, an objective look at the case leads us to

a different conclusion.

¶ 147 In Dawson, the petitioner, a prisoner, filed a habeas corpus action against the

warden of the Tennessee State Penitentiary. 322 F.2d 445, 446 (6th Cir. 1963). The

petitioner challenged the authority of the Tennessee Legislature, which was allegedly

malapportioned at the time, to enact capital punishment legislation. Id. Specifically,

and eerily similar to the instant case, the petitioner in Dawson requested that the

court draw a distinction between ordinary, routine laws, which must be allowed to

stand to prevent chaos, and the challenged capital punishment laws enacted by the

legislature due to their “unique nature.” Id. at 447. The Dawson court began by

explaining, however, that “[c]ourts will refrain from declaring legislative acts

unconstitutional, even though the legislature may itself have been adjudicated to

have been unconstitutionally constituted by reason of malapportionment, where the

result would be to create chaos and confusion in government.” Id. The Dawson court

went on to point out that “courts have uniformly held that otherwise valid enactments

of legislatures will not be set aside as unconstitutional by reason of their passage by

a malapportioned legislature.” Id. at 447–48.

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¶ 148 Moreover, in addressing the petitioner’s argument that a carved-out exception

should be made for the challenged legislation specifically, the court properly declined

to treat one type of legislation different from any other. Indeed, the Dawson court

emphasized the danger such judicial intrusion would breed:

For the Court to select any particular category of laws and separate them from other laws for the purpose of applying either the de facto doctrine or the doctrine of avoidance of chaos and confusion would in fact circumvent legal principles in order to substitute the Court’s opinion as to the wisdom, morality, or appropriateness of such laws. The personal views of members of the court with regard to [the substance of a law] should not be grounds for withdrawing such laws from the operation of established principles of law. The purpose of both the de facto doctrine and the doctrine of avoidance of chaos and confusion would be defeated if the judiciary could be called upon to adjudicate respective equities between the public and the complaining party as to any specific act. Both doctrines must have overall application validating the otherwise valid acts of a malapportioned legislature, with a judicial severance of specific acts and a weighing of equities as to those specific acts precluded, if a government of laws and not of men is to remain the polar star of judicial action.

Id. at 448 (emphasis added). Understanding that courts may not hand-pick

legislation to legitimize, the court concluded that the plaintiff’s argument was

without merit.

¶ 149 The majority “misread[s] Dawson,” claiming that it “held only that in applying

the de facto officer doctrine, courts should not draw distinctions between categories

of ordinary statutes” and remained silent on “how courts should approach

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categorically different types of legislative acts.” The Dawson court, however, never

once made such a distinction, if one even exists.15 Reaching the same conclusion as

countless other federal and state decisions, Dawson simply calls for “overall

application” of the de facto doctrine to “the otherwise valid acts of a malapportioned

legislature.” Id. No exceptions.

¶ 150 Today, the Court’s actions are directed at state constitutional amendments.

The door has been opened, however, for judicial dissolution of legislative authority in

the future. This is a far cry from judicial restraint and thwarts the idea that “there

is no room for a judicial hegemony.” Walser ex rel. Wilson v. Jordan, 124 N.C. 683,

705, 33 S.E. 139, 151 (1899) (Clark, J., dissenting). This Court’s “authority is limited,

and the acceptance of that limitation is a public trust we are bound to keep in the

promotion of a properly aligned government.” Rhyne v. K-Mart Corp., 149 N.C. App.

672, 680, 562 S.E.2d 82, 89 (2002), aff’d, 358 N.C. 160, 594 S.E.2d 1 (2004).

15 Notably absent from our constitution is the categorization of constitutional functions as “ordinary” or “extraordinary.” Further, and contrary to the majority’s view of our constitution, there is nothing extraordinary about any duties or obligations set forth therein. The constitution sets forth the rights enjoyed by the people and provides the framework for action by our government. There is no hierarchy of constitutional rights, and nothing concerning operation of our government is designated ordinary or extraordinary. The majority has taken it upon itself to rank governmental functions based solely on its own opinion. What happens then when they decide to take the same approach to the freedoms and liberties secured in the Declaration of Rights? 110 NAACP V. MOORE

¶ 151 That the majority has injected chaos and confusion into our political structure

is self-evident. Equipped with a few paragraphs of instruction, our state’s courts may

now decide if and when constitutional authority may be exercised by another branch

of our government. It takes minimal effort to imagine the ways that this could

ultimately “preempt the people’s capacity to [ ] assert their will consistent with the

terms of their fundamental law” following their approval of a constitutional

amendment. “The idea of . . . the judiciary [] preventing . . . the legislature, through

which the people act, from exercising its power is the most serious of judicial

considerations.” State ex rel. McCrory v. Berger, 368 N.C. at 650, 781 S.E.2d at 259

(2016) (Newby, J., concurring in part and dissenting in part).

III. Conclusion

¶ 152 Our constitution clearly states that amending the constitution is a duty

designated to the General Assembly and the people of this State. The General

Assembly acted within its constitutional authority when it proposed the Voter ID and

Tax Cap Amendments to the people of North Carolina. The people overwhelmingly

ratified these provisions which they believed important to safeguard elections and

protect their wallets.

¶ 153 This decision is a radical departure from mere judicial review as this Court

expands its reach beyond constitutional guardrails and unilaterally amends the

constitution for its own reasons. The majority restructures power constitutionally

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designated to the legislature, plainly violates the principles of non-justiciability, and

wrests popular sovereignty from the people.

¶ 154 When does judicial activism undermine our republican form of government

guaranteed in Article IV, Section 4 of the United States Constitution such that the

people are no longer the fountain of power? At what point does a court, operating

without any color of constitutional authority, implicate a deprivation of rights and

liberties secured under the Fourteenth Amendment?

¶ 155 The sober people of this state will be left to wonder why, if they amended the

constitution, those provisions are not in effect. The negative fallout of today’s decision

will be felt most by the people of this state and the confidence they have in this

institution. Sadly, they will experience the chaos and confusion courts seek to avoid.

Chief Justice NEWBY and Justice BARRINGER join in this dissenting

opinion.