The Wake County Justice Center (File photo)
For six years, a challenge to constitutional amendments passed and sent on to voters by the North Carolina General Assembly in 2018 has trundled back and forth through the state court system. Now, after its return to the trial court, attorneys for Republican legislative leaders are seeking a judgment before any evidence can be presented.
A three-judge panel of the Wake County Superior Court heard arguments in a remote online hearing Thursday morning from attorneys for the North Carolina NAACP as well as counsel for House Speaker Tim Moore and Senate President Pro Tem Phil Berger, Sr. on a motion by the latter for judgment on the pleadings — a request to rule against the plaintiffs based only on the arguments in their complaint.
It’s the latest chapter in a long-running civil rights challenge in which the NAACP has sought to overturn constitutional amendments passed by the General Assembly and approved by voters in 2018 enshrining voter I.D. requirements and a lower state income tax cap. The lawsuit is premised on a 2017 U.S. Supreme Court holding which held the state’s House and Senate maps were illegally racially gerrymandered. If the body that passed the amendments was illegally constructed, the complaint reasons, then constitutional amendments approved by it should not be allowed to stand.
After a trial court judge ruled in February 2019 that the legislature did not have the authority to pass those amendments, a state appeals court overturned the holding. In 2022, that result was upheld by the state Supreme Court — which garnered controversy when Chief Justice Phil Berger, Jr. declined to recuse himself from the case against his father — in an opinion that returned the matter to the trial court to consider the matter under a new three-part test.
Under that test, the judges must consider whether an amendment passed by a racially gerrymandered legislature carries a “substantial risk” of shielding lawmakers from democratic accountability, perpetuating a group’s exclusion from the electoral process, or intentionally discriminating against the same group of voters whose votes were diluted by the gerrymander.
NAACP cannot meet “high bar” to overturn amendments, defendants say
Martin Warf, an attorney for the defendants, acknowledged the request for a judgment based only on the pleadings and without a trial featuring witnesses and testimony was “unusual,” but he argued the threshold for overturning the amendments is so high that the NAACP could not possibly meet it.
“The plaintiffs are seeking to invalidate acts of the General Assembly that were ratified by the people of North Carolina,” Warf said. “It is a high burden and a high bar to determine that something is unconstitutional in a facial challenge.”
Warf argued that even considering the racial gerrymander, “the premise of constitutionality” must apply when considering the amendments in question. Likewise, he said the judges must conduct a “no-set-of-circumstances test,” in which the plaintiffs would need to prove the amendments are unconstitutional under all circumstances — not just in the specific context of the gerrymander.
He said proceeding into discovery on the case would be nothing more than a “fishing expedition,” adding that it was very unlikely that the amendments would be found to have racially discriminatory intent given that they are race-neutral on the surface — noting that a voter ID statute had been upheld by the state Supreme Court in 2022.
The voter ID amendment itself, Warf said, is “generic and fungible,” and only establishes “the principle of voter identification.” He conceded that “perhaps” a voter ID statute could exist that would be so burdensome as to be racially discriminatory, but said the state court’s decision in 2022 proves without doubt that an ID law can exist that meets constitutional muster.
The tax cap amendment, Warf said, is even more clear cut — while the legislature passed an amendment to lower the maximum to 7 percent in 2018, the initial amendment capping income tax rates was enacted by the state in 1920. The difference, he argued, is basically a policy choice.
“We cannot allow fanciful discovery to go forward when there is not sufficient basis for that as a matter of law,” he told the judges. “We believe this court should grant the defendants’ dispositive motion.”
Plaintiffs urge judges to reject motion based on improper procedure
Attorneys for the NAACP said the points Warf raised would need careful consideration by the judges — but not at the present stage of the case. Instead, attorney Kym Hunter argued, the current motion to dismiss the case would be “an easy motion to deny” as it fails across the board on procedural grounds.
“Mr. Warf will certainly challenge some of the evidence that we may put forward. We will put forward our own,” said Hunter. “This is just a premature motion. We’re just not there yet.”
“What is needed here is further factual development,” she added.
The rare motion for judgment on the pleadings, the defense said, is rare for a reason — it is completely inappropriate for the circumstances of this lawsuit. The correct application of the motion, Hunter argued, is for a case where there is a clear question of law but no question of facts — this challenge, however, presents a “highly specific factual inquiry.”
“They are asking you to disregard the Supreme Court and asking you to disregard the North Carolina rules of civil procedure,” Hunter said, noting that the state Supreme Court handed down a mandate to return the case to the trial court “solely for an evidentiary hearing” as well as “the entry of additional findings of fact and conclusions of law,” leaving in place the trial court’s previous unchallenged factual findings.
Spencer Scheidt, representing the NAACP alongside Hunter, ran through a list of six significant procedural errors in the defendants’ motion — any one of which would be enough to deny it, he said.
When requesting judgment based on the pleadings, Scheidt explained, it is a “cardinal rule” to accept all factual premises in the initial complaint and to make all reasonable inferences in the favor of the plaintiffs. Here, though, the legislative leaders’ motion repeatedly challenged the NAACP’s factual claims — most notably, that voter ID laws and tax caps disproportionately impact African Americans — and asked for inferences in their favor, like the inference that because a tax cap had existed in years prior, it could not have been passed with racial animus.
Scheidt also contended that the motion improperly relied on evidence extrinsic to the case, such as findings about voter ID laws in other states, and was untimely, coming on the “eve of discovery.” As a result of all these factors, he said, the court should dismiss the motion and allow the case to proceed.
Judges express confusion, give little indication of outcome
The three-judge panel kept its cards close to its chest Thursday, with only Judge Cynthia Sturges asking multiple questions during Thursday’s argument. “I have no idea where I am on this case,” Sturges said near the end of the two-hour hearing.
Sturges said that while she felt the state Supreme Court’s ruling was very clear upon first reading, it becomes “very confusing” and “ambiguous” when picking it apart in the way the attorneys did. “Trying to square this opinion and the mandate with the practicality of everything is where it just sort of falls apart.”
She expressed frustration that — despite two years having passed since the state Supreme Court remanded the case — the discovery process had not yet begun, asking Hunter at one point, “How come you haven’t started yet?”
In response, Hunter reviewed the case’s long, complex procedural history — making clear that the defendants have been “ready to proceed with discovery at every stage” — noting that this same three-judge panel had asked to hear the challenge before the court Thursday prior to the parties proceeding with a discovery plan.
Judge Michael Duncan said he recalled asking whether discovery could proceed simultaneously with the motion on the pleadings, his impression being that the parties had found this task to be “too much” to deal with at one time. Sturges said she had not been aware discovery could not proceed.
“We thought it efficient to see if the case could be resolved at the trial level without discovery,” Warf told the judges.
Judge James Bell, who asked no questions of either party, said the panel will meet in-person at a to-be-determined date and time to deliberate on the motion. Regardless of outcome, an attempt to appeal is likely, meaning no end in sight for the six-year legal saga.