Court hands down a stunningly aggressive attack on illegal gerrymandering

Ian Millhiser

Ian Millhiser Senior Constitutional Policy Analyst, Think Progress

A perennial problem in gerrymandering cases is that, even when an illegal map is eventually struck down by the courts, the state will often administer one or more elections using the deficient map before the courts can intervene.

That effectively means illegally elected lawmakers will make new laws — sometimes for years. It also means partisans have little incentive not to gerrymander, because their illegal maps are likely to be in effect for at least one election.

On Friday, a North Carolina state court offered a radical and creative solution to this problem, invalidating two state constitutional amendments that were proposed by an illegally gerrymandered legislature after the state’s legislative maps were invalidated — but before a new election could remove lawmakers in gerrymandered seats from office.

The case is North Carolina State Conference of the NAACP v. Moore.

Under the North Carolina Constitution, the state legislature may propose constitutional amendments with a 3/5s supermajority vote in both chambers. Such proposed amendments must then be ratified by a majority of the voters.

In June of 2018, about a year after the Supreme Court affirmed a lower court decision striking down many of North Carolina’s legislative districts as unconstitutional racial gerrymanders, state lawmakers proposed six amendments to the state’s constitution. Two of these amendments, a cap on income taxation and a voter ID requirement, were later ratified by voters.

In his opinion striking down these amendments, Judge G. Bryan Collins reasons that an illegally gerrymandered legislature cannot propose an amendment — at least after the state’s legislative maps were declared invalid by the Supreme Court of the United States.

The state constitution, Collins notes, provides that “the people of this State have the inherent, sole, and exclusive right of regulating the internal government and . . . of altering or abolishing their Constitution and form of government.” Yet, when the Supreme Court determined that the state’s legislative maps are invalid, the state’s “General Assembly lost its claim to popular sovereignty.”

“The unconstitutional racial gerrymander,” Collins reasoned, “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.”

Judge Collins’ opinion is brief, but it appears to apply only to state constitutional amendments proposed after the state’s legislative maps are struck down. Ordinary legislation would likely survive under Collins’ reasoning. In that sense, Collins strikes a balance between the need for the state to be able to conduct business, and the need to ensure that an illegal majority in the state legislature does not enact laws which cannot be easily repealed by a future legislature.

It remains to be seen whether Collins’ opinion survives contact with higher courts — although it has a fighting chance in a state supreme court where Democrats will soon enjoy a 6-1 majority. It is highly unusual, to say the least, for a court to strike down the acts of a gerrymandered legislature — though Collins’ opinion is limited enough in scope that it can be read largely as a shield against illegitimate constitutional amendments.

Yet, while opinions like Collins’ are rare, Judge Collins also addressed a very real problem in gerrymandering cases. Without protections against lawmaking by legislators who owe their jobs to an illegal gerrymander, those legislators have every incentive to enact illegal maps and then ride them out through as many elections as possible before a court intervenes.


Reposted from ThinkProgress

Ian Millhiser is a Senior Constitutional Policy Analyst at the Center for American Progress Action Fund and the Editor of ThinkProgress Justice. He received a B.A. in Philosophy from Kenyon College and a J.D., magna cum laude, from Duke University. Ian clerked for Judge Eric L. Clay of the United States Court of Appeals for the Sixth Circuit, and has worked as an attorney with the National Senior Citizens Law Center’s Federal Rights Project, as Assistant Director for Communications with the American Constitution Society, and as a Teach For America teacher in the Mississippi Delta. His writings have appeared in a diversity of legal and mainstream publications, including the New York Times, The Los Angeles Times, U.S. News and World Report, Slate, the Guardian, the American Prospect, the Yale Law and Policy Review and the Duke Law Journal; and he has been a guest on CNN, MSNBC, Al Jazeera English, Fox News and many radio shows.

Posted In: Allied Approaches

Union Matters

Steel for Wind Power

From the USW

From tumbledown bridges to decrepit roads and failing water systems, crumbling infrastructure undermines America’s safety and prosperity. In coming weeks, Union Matters will delve into this neglect and the urgent need for a rebuilding campaign that creates jobs, fuels economic growth and revitalizes communities. 

Siemens Gamesa last month laid off 130 workers at its turbine blade manufacturing plant in Iowa, just months after GE Renewable Energy decided to close an Arkansas factory and eliminate 470 jobs.

The companies reported shrinking demand for their products, even though U.S. consumption of wind energy increases every year.

America’s prosperity depends not only on harnessing this crucial energy source but also ensuring that highly skilled U.S. workers build the components with the cleanest technology available.

Right now, the nation relies on imported steel and turbine components from foreign manufacturers like China while America’s own steel industry—well equipped for this production—struggles because of dumping and other unfair trade practices.

Steel makes up the bulk of turbine hubs and the wind towers themselves. It’s also used to make the cranes and platforms necessary for installing the towers.

Yet the potential boon to America’s steel industry is just one reason to ramp up domestic production of wind energy infrastructure.

American steel production ranks among the cleanest in the world, while China has the highest carbon emissions of any steelmaking nation and flouts environmental regulations.

The nation’s highly-skilled steelmaking workforce must play an essential role in the deeply-needed revitalization and modernization of the nation’s failing infrastructure. Producing the components for harnessing wind energy domestically and cleanly is an important step that will put Americans to work and position the United States to be world leaders in this growing industry.


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