JOHN HOOD COLUMN: Democratic justices reject Democratic vote

Published 2:30 pm Wednesday, September 28, 2022

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RALEIGH — On Nov. 6, 2018, the people of North Carolina voted to amend their state constitution. By a 57% to 43% margin, they added a provision to protect the right to hunt and fish. By the same percentages, they also modified a section about the state’s income tax, setting the highest possible rate at 7% instead of the prior 10%. North Carolinians also voted to protect the rights of crime victims (62%) and require a photo ID to cast a ballot (55%).

John Hood

Alas, “Democratic” activists loudly proclaiming their commitment to “democracy” refused to accept the results. They hated the tax cap and photo ID provision, in particular. So they resolved to overturn the will of the people.

Strong words. But they describe the situation accurately.

The facts aren’t in dispute. North Carolina voters approved the two amendments by healthy margins. Not every eligible voter participated in the 2018 election, of course, but its turnout was higher than normal for a midterm — and surveys show that the 2018 electorate accurately reflected broader public opinion on capping the income tax and requiring photo IDs to vote.

Moreover, there weren’t just four amendments on the ballot that year. There were six. Voters turned down two other amendments that would have reformed North Carolina’s board of elections and the selection process for state judges. In other words, voters didn’t reflexively approve every proposed change. They actively chose among several alternatives. This was the purest form of democracy there is, settling issues by a direct vote of the people.

Democratic activists didn’t like how the people voted on the tax cap and photo ID. So they sued. Democratic justices on the North Carolina Supreme Court didn’t like how the people voted, either. So they sided with the plaintiffs and, in effect, threw out the two amendments (though the final shoe, a trial court determination, likely won’t drop until after the 2022 election).

In an Aug. 19 decision written by Anita Earls and affirmed by justices Michael Morgan, Robin Hudson and Sam Ervin IV, the four justices argued that because of a prior decision invalidating some of the electoral districts from which state lawmakers were elected, those lawmakers lacked the legitimate authority to hold the referendum in the first place.

In their decision, the Democratic justices didn’t just buy the plaintiffs’ claim that prior gerrymandering made the General Assembly an illegally constituted body. They also bought the preposterous claim that capping the income tax and requiring photo IDs to vote are forms of racial discrimination (because minorities are disproportionately less likely to earn high incomes and disproportionally more likely to lack an ID). The justices needed to do this to address a thorny problem: if the General Assembly were truly an illegally constituted body, wouldn’t any state budget or law it enacted be illegal? Couldn’t any aggrieved party sue for relief, such as someone convicted of a crime under a statute enacted by such a legislature?

Yep — so the Democrats invented a new category to serve their needs. Even if some of its members were elected in districts subsequently declared illegal, the General Assembly remains the de facto legislature when it comes to passing laws and appropriating funds. That’s established law. The justices accepted it. Then they carved out an exception for 1) amending the constitution with 2) provisions the justices consider to be discriminatory.

There’s an argument here, but it’s a transparently bad one. If prior gerrymandering truly calls into question whether the legislature truly represents the will of the people, there’s at least one form of legislative action that already has a built-in remedy: putting  constitutional amendments (or bond issuances) on the ballot! If the people of North Carolina don’t like them, they can vote them down — as they did to two of the six amendments of 2018.

Although the Democratic justices are trying desperately to pretend otherwise, they have decided to reject an unambiguously democratic vote of the people because the justices don’t agree with it.

John Hood is a John Locke Foundation board member.