NO. COA19-384

TENTH DISTRICT

NORTH CAROLINA COURT OF APPEALS
********************************************
NORTH CAROLINA STATE
CONFERENCE OF THE
NATIONAL ASSOCIATION
FOR THE ADVANCEMENT
OF COLORED PEOPLE,
Plaintiff-Appellee,
v.
TIMOTHY K. MOORE, in his official
capacity as SPEAKER OF THE
NORTH CAROLINA HOUSE OF
REPRESENTATIVES; PHILIP E.
BERGER, in his official capacity as
PRESIDENT PRO TEMPORE OF
THE NORTH CAROLINA SENATE,
Defendants-Appellants.
*************************************************************
MOTION BY THE NORTH CAROLINA LEGISLATIVE BLACK
CAUCUS FOR LEAVE TO FILE BRIEF AMICUS CURIAE
*************************************************************
ROBERT E. HARRINGTON
ADAM K. DOERR
ERIK R. ZIMMERMAN
TRAVIS S. HINMAN
ROBINSON, BRADSHAW &
HINSON, P.A.
101 N. Tryon St., Suite 1900
Charlotte, NC 28246
(704) 377-2536

 TO THE HONORABLE COURT OF APPEALS OF NORTH CAROLINA:
The

North

Carolina

Legislative

Black

Caucus

(the

“Caucus”)

respectfully moves this Honorable Court for leave to file the attached brief
amicus curiae in support of Plaintiff North Carolina State Conference of the
National Association for the Advancement of Colored People (“NAACP”).
Pursuant to North Carolina Rule of Appellate Procedure 28(i), the
Caucus sets forth here the nature of its interests, the issues of law its brief
will address, its positions on those issues, and the reasons why it believes
that an amicus curiae brief is desirable.
NATURE OF THE AMICUS’S INTEREST
The Caucus is an association of 37 North Carolina State Senators and
Representatives of African American, American Indian, and Asian-American
Indian heritage. It is a vehicle designed to exercise unified political power for
the betterment of people of color in North Carolina and, consequently, all
North Carolinians; to ensure that the views and concerns of African
Americans and communities of color more broadly are heard and acted on by
elected representatives; and to further develop the political consciousness of
citizens of all communities and cultures.

 -2-

REASONS WHY AMICUS SHOULD BE HEARD
As a group of minority state legislators centrally concerned with
representing the voices of African Americans and communities of color in
North Carolina, the Caucus brings a unique perspective to the issues before
this Court. As the Caucus explains in its brief, the members of the Caucus,
the people and communities of color (and, in particular, the African-American
and minority voters) they represent, and the candidates who wish to join
their

ranks

have

been

uniquely

affected

by

Defendants’

repeated,

discriminatory acts targeted at minimizing minority voting power and
reducing minority voter turnout. In particular, members of the Caucus were
directly affected by Defendants’ extensive racial gerrymander of state
legislative districts, which concentrated minority voting power into a few
districts where, by and large, minority candidates were already winning their
elections with high margins of success. Likewise, the African-American and
minority voters the Caucus represents were disproportionately targeted by
Defendants’ racial gerrymander and subsequent passage of discriminatory
voting laws, which were intended to preserve Defendants’ electoral gains
under unconstitutionally racially gerrymandered state legislative maps.
As members of a minority group within the state legislature, the
Caucus also is uniquely positioned to explain how the constitutional
amendments at issue in this case lock in Defendants’ policy preferences, such

 -3-

that even after North Carolina voters were able to elect state representatives
under constitutional maps in 2018 Defendants still benefit from the
supermajority they wrongfully obtained through racial gerrymandering.
The Caucus’s firsthand experiences with the measures that this
legislature has taken to influence election outcomes make the Caucus well
suited to speak to the constitutional problems with those measures.
AMICUS’S POSITION ON ISSUES OF LAW BEFORE THIS COURT
I.

The trial court’s order is an appropriate and proportional
response to Defendants’ unconstitutional actions to entrench
their wrongfully procured electoral power.
The first issue the Caucus intends to address is Defendants’

mischaracterization of the trial court’s order as an “extreme overreach” that
will lead to “chaos and confusion.” The Caucus will explain that, in fact,
Defendants’ “extreme overreach”—fashioning racially gerrymandered state
legislative maps, procuring a Republican supermajority in both the North
Carolina State House and Senate through those unconstitutional maps, and
using their supermajority power to lock in ill-gotten legislative gains by
proposing constitutional amendments to the people of North Carolina—
warrants a proportional response. The Caucus will further explain that the
trial court’s order, which holds that two constitutional amendments proposed
by an unconstitutionally elected Republican supermajority are void, provides
that proportional response.

 -4-

The Caucus will also show that proposed constitutional amendments
are distinct from other types of legislation passed by an illegally constituted
legislature because they require, per the state Constitution, a three-fifths
majority vote both to propose to the people and, later, to overturn. By
contrast, other legislative actions require only a majority vote to undo.
Because of that distinction, an unconstitutionally elected legislature—like
the one Defendants created through racial gerrymandering—can use
constitutional amendments, like the Voter ID and Tax Amendments at issue
here, to lock in ill-gotten electoral gains even after their party no longer holds
a supermajority (or even a simple majority) in the state House. For that
reason, Defendants’ hyperbolic claims that the trial court’s order will result
in widespread invalidation of legislation since 2011 are unfounded. The
Caucus will argue that the trial court’s order provides a narrow,
administrable, and proportional remedy, and should be affirmed.
II.

The legitimacy of proposed constitutional amendments passed
by an illegally constituted legislature is not a political question.
The Caucus further intends to address whether the political question

doctrine bars the Court from considering the constitutional issues presented
in this case. The Caucus will show that Defendants’ arguments in favor of
applying the political question doctrine rely on outdated cases and ignore
modern decisions concerning the doctrine. The Caucus will explain that,

 -5-

under these modern decisions, the grounds for applying the political question
doctrine are absent from this case. The Caucus will argue that this Court
therefore has a duty to decide whether Defendants’ actions exceeded
constitutional limitations.
WHEREFORE,

the

North

Carolina

Legislative

Black

Caucus

respectfully moves this Honorable Court to allow this motion for leave to file
a brief amicus curiae.

[Signatures on Following Page]

 -6-

Respectfully submitted this
12th day of July, 2019.
Electronically Submitted
Adam K. Doerr
N.C. Bar No. 37807
adoerr@robinsonbradshaw.com
N.C. R. App. 33(b) Certification: I
certify that all of the attorneys listed
below have authorized me to list their
names on this document as if they
had personally signed it:
Robert E. Harrington
N.C. Bar No. 26967
rharrington@robinsonbradshaw.com
Erik R. Zimmerman
N.C. Bar No. 50247
ezimmerman@robinsbradshaw.com
Travis S. Hinman
N.C. Bar No. 50779
thinman@robinsbradshaw.com
ROBINSON, BRADSHAW &
HINSON, P.A.
101 North Tryon Street, Suite 1900
Charlotte, North Carolina 28246
Telephone: (704) 377-2536
Facsimile: (704) 378-4000
Attorneys for Amicus Curiae
the North Carolina Legislative
Black Caucus

 -7-

CERTIFICATE OF SERVICE
The undersigned counsel hereby certifies that on this day the foregoing
was electronically filed with the North Carolina Court of Appeals and,
additionally, a copy was served upon the following counsel of record via First
Class U. S. mail as follows:
David Neal
Kimberley Hunter
Southern Environmental Law Center
601 West Rosemary Street, Suite 220
Chapel Hill, NC 27516-2356
dneal@selcnc.org
khunter@selcnc.org
Counsel for Plaintiff-Appellee

Noah H. Huffstetler, III
D. Martin Warf
Nelson Mullins Riley & Scarborough
LLP
GlenLake One, Suite 200
4140 Parklake Avenue
Raleigh, NC 27612
noah.huffstetler@nelsonmullins.com
martin.warf@nelsonmullins.com
Counsel for Defendants-Appellants

Alexander McC. Peters
Senior Deputy Attorney General
N.C. Department of Justice
Post Office Box 629
Raleigh, NC 27602
apeters@ncdoj.gov

Irving Joyner
Post Office Box 374
Cary, NC 27512
ijoyner@nccu.edu

Daryl Atkinson
Leah Kang
Forward Justice
400 W. Main Street, Suite 203
Durham, NC 27701
daryl@forwardjustice.org
lkang@forwardjustice.org
This the 12th day of July, 2019.
Electronically Submitted
Adam K. Doerr
N.C. Bar No. 37807
adoerr@robinsonbradshaw.com

 NO. COA19-384

TENTH DISTRICT

NORTH CAROLINA COURT OF APPEALS
********************************************
NORTH CAROLINA STATE
CONFERENCE OF THE
NATIONAL ASSOCIATION
FOR THE ADVANCEMENT
OF COLORED PEOPLE,
Plaintiff-Appellee,
v.
TIMOTHY K. MOORE, in his official
capacity as SPEAKER OF THE
NORTH CAROLINA HOUSE OF
REPRESENTATIVES; PHILIP E.
BERGER, in his official capacity as
PRESIDENT PRO TEMPORE OF THE
NORTH CAROLINA SENATE,

From Wake County
18-CVS-9806

Defendants-Appellants.
*****************************************************************
BRIEF OF THE NORTH CAROLINA LEGISLATIVE BLACK CAUCUS
AS AMICUS CURIAE SUPPORTING PLAINTIFF-APPELLEE
*****************************************************************
ROBERT E. HARRINGTON
ADAM K. DOERR
ERIK R. ZIMMERMAN
TRAVIS S. HINMAN
ROBINSON, BRADSHAW &
HINSON, P.A.
101 N. Tryon St., Suite 1900
Charlotte, NC 28246
(704) 377-2536

 -iINDEX
TABLE OF CASES AND AUTHORITIES ........................... ii
ARGUMENT ...........................................................................2
I.

The trial court’s order provides a necessary and
proportional remedy to nearly a decade of
attempts by an illegal majority to entrench itself
in power at the expense of minority voters and
their representatives. ...................................................2

II.

Invalidating the amendments challenged here will
not call into question the legitimacy of other
legislative acts. ........................................................... 10

III.

This case does not present a political question. ....... 14

CONCLUSION ..................................................................... 18

-i-

 - ii TABLE OF CASES AND AUTHORITIES
Cases
Bacon v. Lee,
353 N.C. 696, 549 S.E.2d 840 (2001) ............................. 15
Baker v. Carr,
369 U.S. 186 (1962) ................................................... 14, 15
Common Cause v. Rucho,
279 F. Supp. 3d 587 (M.D.N.C.), vacated on
other grounds, 138 S. Ct. 2679 (2018) .......................... 5, 8
Cooper v. Berger,
370 N.C. 392, 809 S.E.2d 98 (2018) ......................... 15, 17
Cooper v. Berger,
No. 18-CVS-9805, 2018 WL 4764150 (N.C.
Super. Aug. 21, 2018)...................................................... 17
Cooper v. Harris,
137 S. Ct. 1455 (2017) ............................................. 3, 4, 17
Covington v. North Carolina,
270 F. Supp. 3d 881 (M.D.N.C. 2017) ...................... 2, 5, 9
Covington v. North Carolina,
316 F.R.D. 117 (M.D.N.C. 2016) ........................ 3, 4, 5, 12
Giles v. Harris,
189 U.S. 475 (1903) ......................................................... 14
Gomillion v. Lightfoot,
364 U.S. 339 (1960) ......................................................... 15
Harris v. McCrory,
159 F. Supp. 3d 600 (M.D.N.C. 2016), aff’d sub
nom., Cooper v. Harris, 137 S. Ct. 1455 (2017) ................3

 - iii Leandro v. State,
346 N.C. 336, 488 S.E.2d 249 (1997) ............................. 15
Leonard v. Maxwell,
216 N.C. 89, 3 S.E.2d 316 (1939) ................................... 15
N.C. State Conf. of NAACP v. McCrory,
831 F.3d 204 (4th Cir. 2016)....................................... 6, 17
North Carolina v. Covington,
137 S. Ct. 2211 (2017) ................................................. 5, 17
State v. Berger,
368 N.C. 633, 781 S.E.2d 248 (2016) ............................. 17
Territory v. Tam,
36 Haw. 32 (1942) ........................................................... 13
United States v. Munoz-Flores,
495 U.S. 385 (1990) ......................................................... 17
Constitutional Provisions
N.C. Const. art. II, § 20 ....................................................... 16
N.C. Const. art. XIII, § 4 ..................................................... 10
Session Laws
Session Law 2018-119 ............................................................2
Session Law 2018-128 ............................................................2
Other Authorities
Richard H. Pildes,
Democracy, Anti-Democracy, and the Canon, 17
Const. Comment. 295 (2000) .......................................... 14
Speaker Tim Moore, Taxpayer Protection Cap in
State Constitution Approved by N.C. House ...................12

 NO. COA19-384

TENTH DISTRICT

NORTH CAROLINA COURT OF APPEALS
********************************************
NORTH CAROLINA STATE
CONFERENCE OF THE
NATIONAL ASSOCIATION
FOR THE ADVANCEMENT
OF COLORED PEOPLE,
Plaintiff-Appellee,
v.
TIMOTHY K. MOORE, in his official
capacity as SPEAKER OF THE
NORTH CAROLINA HOUSE OF
REPRESENTATIVES; PHILIP E.
BERGER, in his official capacity as
PRESIDENT PRO TEMPORE OF THE
NORTH CAROLINA SENATE,

From Wake County
18-CVS-9806

Defendants-Appellants.
*****************************************************************
BRIEF OF THE NORTH CAROLINA LEGISLATIVE BLACK CAUCUS
AS AMICUS CURIAE SUPPORTING PLAINTIFF-APPELLEE1
*****************************************************************

No person other than the Caucus and its counsel wrote or contributed
money to this brief.
1

 -2ARGUMENT
I.

The trial court’s order provides a necessary and proportional
remedy to nearly a decade of attempts by an illegal majority to
entrench itself in power at the expense of minority voters and
their representatives.
Defendants paint the trial court’s order as “an extreme overreach” that

“sits on a jurisprudential island.” Def. Br. 25. But that order is properly
viewed as a necessary and appropriate response to Defendants’ “extreme
overreach.” That overreach began with the “most extensive unconstitutional
racial gerrymander ever encountered by a federal court.” Covington v. North
Carolina, 270 F. Supp. 3d 881, 892 (M.D.N.C. 2017). And it culminated in
Defendants’ attempt to entrench their ill-gotten power by passing Session
Laws 2018-119 and 2018-128 (the “Tax Amendment” and “Voter ID
Amendment,” respectively), which disproportionately affect—and in the case
of Voter ID, disenfranchise—minority voters.
These actions against minority voters and their representatives and the
Constitution itself demand an appropriate, proportional response, which the
trial court provided by holding that an illegal legislative supermajority
cannot permanently change the North Carolina Constitution through laws
passed in the waning moments of its unconstitutional reign.
This Court should affirm.

 -3To understand the extraordinary and unconstitutional lengths to which
the legislature has gone to entrench power at the expense of minority
legislators, candidates, and voters, some history is in order. Defendants took
their first steps to expand and entrench legislative power following gains in
the state legislature in the 2010 election.2 In 2011, the new majority—not yet
a supermajority—redrew North Carolina’s House and Senate maps.
Defendants, with the help of Republican map-drawer Dr. Thomas Hofeller,
designed 28 state legislative districts to ensure that each had a 50%-plus-one
majority black voting age population (“BVAP”). Covington v. North Carolina,
316 F.R.D. 117, 126-27 (M.D.N.C. 2016). By concentrating African-American
voters in a small number of districts, Defendants reduced their overall
political influence across the state. See id. Defendants’ dilution of minority
voting power was so significant that fixing it required redrawing “more than
two thirds of the districts in both the House . . . and Senate”—81 (or 68%) in
the House and 36 (or 72%) in the Senate. (R p 184, ¶ 11 (“Order”)).3

Defendants were named in their official capacity, and references here to
“Defendants” are generally to the legislative majority, not the individuals.
2

At the same time Defendants designed the racially gerrymandered 2011
state redistricting plan, they implemented a congressional redistricting plan
with racially gerrymandered districts. Harris v. McCrory, 159 F. Supp. 3d
600, 627 (M.D.N.C. 2016), aff’d sub nom., Cooper v. Harris, 137 S. Ct. 1455,
1482 (2017). These unconstitutional congressional districts represent yet
another attempt by Defendants to procure and maintain Republican electoral
power by minimizing minority voting strength in North Carolina.
3

 -4Defendants’ purported justification for drawing these majority-black
districts was to comply with the Voting Rights Act of 1965 (the “VRA”).
Covington, 316 F.R.D. at 132-33. But Defendants did not have a “strong basis
in evidence” for concluding the VRA required such districts. To the contrary,
“Defendants knew they were increasing the [Black Voting Age Population] in
districts where African-American candidates, who were purportedly also the
African-American voters’ candidates of choice, were already consistently
winning.” Id. at 173 (emphasis added). Indeed, in previous decades, “[m]any
African-American General Assembly candidates . . . had electoral success
even when running in non-majority-black districts.” Id. at 125-26. These
candidates won in “effective coalitional districts” in which minority citizens
“form[ed] coalitions with voters from other racial and ethnic groups, having
no need to be a majority within a single district in order to elect candidates of
their choice.” Id. at 133.4
Because Defendants had no valid justification for concentrating black
voters into fewer districts, the district court concluded that all 28 districts

At the trial challenging the congressional districts, former congressman and
state senator Mel Watt testified he told a state legislator involved in
redistricting efforts, “I’m getting 65 percent of the vote in a 40 percent black
district. If you ramp my [BVAP] to over 50 percent, I’ll probably get 80
percent of the vote, and that’s not what the Voting Rights Act was designed
to do.” Cooper, 137 S. Ct. at 1476 & n.10. The Supreme Court described
Watt’s testimony as “[p]erhaps the most dramatic testimony in the trial.” Id.
4

 -5were unconstitutional racial gerrymanders. Id. at 176. The Supreme Court
summarily affirmed. North Carolina v. Covington, 137 S. Ct. 2211 (2017).
Defendants then delayed, opposed, and undermined efforts to remedy
the racially gerrymandered plan. Indeed, the Covington court called
Defendants out for “act[ing] in ways that indicate they are more interested in
delay than they are in correcting this serious constitutional violation.” 270 F.
Supp. 3d at 884. Defendants made “no effort to draw and submit
constitutional redistricting plans” before the Supreme Court summarily
affirmed and opposed a special election under constitutional maps. Id. at 88789. When Defendants did engage in the remedial process, the “Covington
panel . . . expressed ‘serious’ concerns that several districts drawn by the
General Assembly to remedy the constitutional violation either perpetuate[d]
the racial gerrymander or [we]re otherwise legally unacceptable.” Common
Cause v. Rucho, 279 F. Supp. 3d 587, 622 n.13 (M.D.N.C.), vacated on other
grounds by 138 S. Ct. 2679 (2018).
All the while, the Republican supermajority elected under the
unconstitutional maps passed a series of racially discriminatory laws
designed to entrench their wrongfully procured power so that, even after the
racial gerrymander was remedied, Defendants still would benefit from their
unconstitutional actions. See, e.g., id. (citing cases showing that “[t]he
legislature elected under the racially gerrymandered 2011 districting plan

 -6has enacted a number of pieces of voting- and election-related legislation that
have been struck down by state and federal courts as unconstitutional or
violative of federal law”).
For example, after years of expanded voting access for African
Americans, when “African American registration and turnout rates had
finally reached near-parity with white registration and turnout rates [and]
African Americans were poised to act as a major electoral force,” the General
Assembly used data regarding race-based voting practices to pass legislation
that included numerous voting and voting registration measures, “all of
which disproportionately affected African Americans.” N.C. State Conf. of
NAACP v. McCrory, 831 F.3d 204, 214 (4th Cir. 2016). In striking down this
law, the Fourth Circuit described it as “the most restrictive voting law North
Carolina has seen since the era of Jim Crow.” Id. at 229.
The Fourth Circuit found that the General Assembly’s aim in enacting
this law was “to entrench itself . . . by targeting voters who, based on race,
were unlikely to vote for the majority party.” Id. at 233. In other words, a
Republican supermajority in the General Assembly—elected, at least in part,
as a result of racial gerrymandering—imposed barriers on voting and voting
registration that would disproportionately keep African-American voters
away from the polls to preserve and expand its illegitimate electoral gains.

 -7Foiled by the Fourth Circuit, Defendants tried—through one of the
amendments challenged in this case—to achieve through a constitutional
amendment what they failed to achieve through the law-making process:
authority to enact a voter ID law that could disproportionately impair African
Americans’ voting power. Defendants completed their plan to lock voter ID
into the Constitution during “the final two days of the 2018 regular
legislative session”—in other words, in the final two days they could wield
the Republican supermajority they created through racially gerrymandered
maps. Order ¶ 12.
With the help of those maps, Defendants succeeded. Id. ¶¶ 13-14. The
Voter ID Amendment passed the House by “just two votes over [the] threefifths majority required for a constitutional amendment, and in the Senate
the number was just three votes over the required margin.” Id. ¶ 13.
Likewise, the Tax Amendment passed the House by “just one vote over the
[required] three-fifths majority” and the Senate by “just four votes over the
required margin.” Id. ¶ 14. Had Defendants not unlawfully procured their
Republican supermajority through racial gerrymandering, Defendants likely
would not have had the required number of votes to put the Voter ID and Tax
Amendments on the ballot. This was the basis for the trial court’s
determination that the racial gerrymander tainted the three-fifths majority
required to amend the North Carolina Constitution.

 -8The Legislative Black Caucus could have played a critical role in
stopping these amendments by itself. Every member of the Caucus voted
against the Voter ID and Tax Amendments, and both passed by the slimmest
of margins—two votes for Voter ID, and one for Tax. If not for nearly a
decade of unconstitutional impairment of the political power of black voters
and their representatives, the result would likely have been different. Indeed,
when voters were finally able to vote in districts untainted by racial
gerrymandering in 2018, the Caucus added two members—which would have
jeopardized Defendants’ ability to pass the Amendments singlehandedly.5
“[A] legislature that is itself insulated by virtue of an invidious
gerrymander can enact additional legislation to restrict voting rights and
thereby further cement its unjustified control of the organs of both state and
federal government.” Common Cause, 279 F. Supp. 3d at 621-22. That is
exactly what happened here. Defendants drew a redistricting map infected by
unconstitutional, racially gerrymandered districts and obtained a Republican
supermajority. As the litigation involving that map wound its way through
the federal courts, Defendants repeatedly passed laws that discriminated

Because the remedial map used in the 2018 election altered more than twothirds of the House and Senate districts, Order ¶ 11, the Caucus would not
have been alone in its opposition. When finally given the opportunity,
African-American voters engaged in the coalition-building Defendants’ racial
gerrymander had prevented, combining their voting power to elect Democrats
who often vote with the Caucus.
5

 -9against African-American voters and, in particular, sought to entrench
Republican electoral power by disenfranchising minority voters who are less
likely to vote for Republican candidates. As the Fourth Circuit put it, “[t]he
harms attendant to [Defendants’] unjustified race-based districting [did] not
end with the enactment of an unconstitutional districting scheme. Quite the
opposite, those harms [began] with the enactment of unconstitutional maps;
[were] inflicted again and again with the use of those maps in each
subsequent election cycle; and, by putting into office legislators acting under
a cloud of constitutional illegitimacy, continue[d] unabated until new
elections [were] held under constitutionally adequate districting plans.”
Covington, 270 F. Supp. 3d at 891.
In short, the starting point of the analysis must be the established
record of Defendants’ unconstitutional and racially targeted acts. In rejecting
their effort to write the legacy of a supermajority founded in unconstitutional
racial gerrymandering into the North Carolina Constitution, the trial court
simply held Defendants responsible for their own failure to satisfy the
preconditions the Constitution demands for its amendment. This was
anything but an “overreach.”

 -10II.

Invalidating the amendments challenged here will not call into
question the legitimacy of other legislative acts.
In their brief, Defendants refuse to confront the consequences of their

attempt to amend the North Carolina Constitution with a supermajority
achieved only by unconstitutional racial gerrymandering. Instead, they
devote most of their argument to claims that the trial court’s order will cause
chaos and confusion, require courts to make policy determinations about
which laws are valid and which are not, allow collateral attacks on all
legislation, and other specters. This is not so; as the trial court recognized,
constitutional amendments are different. When these differences come into
view, Defendants’ arguments collapse.
Ordinary legislation can be passed by a simple majority, but legislation
proposing changes to the Constitution must meet a higher burden—a threefifths majority. N.C. Const. art. XIII, § 4. In adopting a Constitution that can
be amended only by a proposal passed by a legislative supermajority, the
people of North Carolina chose a system requiring strong consensus to
change their constitutional order.
Defendants subverted that principle. As the trial court found, “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

 -11sovereignty between North Carolina citizens and their representatives.”
Order ¶ 7.
Contrary to Defendants’ assertion that the court “determin[ed] that the
General Assembly was a body of usurpers incapable of passing laws,” the
trial court limited its ruling to the amendments themselves.6 Defendants
attempt to sow confusion on this point. For example, they argue that “the
three-fifths majority vote of the Legislature required for a proposed
amendment is not truly unique,” and that the “constitutional amendment
process (at least as far as the vote of the General Assembly is required) is not
entirely unique from the regular law-making process.” Def. Br. 31, 20. They
are wrong.
A simple majority can change ordinary legislation. Thus, a minority
group like the Legislative Black Caucus can form or join a majority coalition
to repeal or amend laws passed by a racially gerrymandered majority when
the political tides change. And although legislative overrides of the governor’s
veto and proposals to amend the constitution both require a three-fifths
majority, the resemblance ends there. Laws passed by overriding a veto
remain laws, and a bare majority of a future legislature can repeal those
laws—notwithstanding that the initial override required a supermajority.
Although Defendants’ brief refers to “usurpers” and “usurping” 41 times, the
Order does not use that term. It focuses on the legitimacy of the
amendments, not the legitimacy of the legislature.
6

 -12The permanence of constitutional amendments sets them apart. Here,
after Covington finally forced the creation of state legislative districts
untainted by racial gerrymandering, North Carolina voters broke the illegal
supermajority. A future election could make the Legislative Black Caucus
part of a majority coalition. But even then—despite the will of a majority of
North Carolina voters, expressed in a free and fair election—the Caucus and
its allies still could not undo the damage created by the illegal
supermajority’s unlawful acts. A constitutional amendment—unique among
legislative acts—cannot be undone by a later majority. Removing the stain of
this illegal supermajority would require another constitutional amendment—
starting with another supermajority.7
This is why the trial court wrote that “the requirements for amending
the state Constitution are unique and distinct from the requirements to enact
other legislation,” and concluded that the illegally constituted General
Assembly was “therefore not empowered to pass legislation that would
amend the state’s Constitution.” Order ¶ 10; see also id. ¶ 9 (holding it would

The difficulty of undoing constitutional amendments was a significant part
of their appeal for Defendants. See, e.g., Speaker Tim Moore, Taxpayer
Protection Cap in State Constitution Approved by N.C. House,
http://speakermoore.com/taxpayer-protection-cap-state-constitutionapproved-n-c-house/ (emphasizing that the Tax Amendment would
“safeguard” tax cuts and protect taxpayers from future increases).
7

 -13not cause chaos and confusion to declare two session laws and corresponding
amendments—not all legislation—void ab initio).
Refusing to engage these points, Defendants try to avoid the
consequences of their illegal actions by advancing a parade of horribles.
These are not serious legal concerns. For example, their claim that the “trial
court held that the North Carolina General Assembly lacked authority to
pass legitimate legislation,” Def. Br. 14, simply has no basis in the Order
being appealed.
Defendants’ attempt to marshal legal authority for their position also
misses the mark. Many of these cases are extraordinarily if not grotesquely
outdated, such as the 1916 decision that the right of women to vote and hold
office presents a political question. Def. Br. 21. Moreover, the underlying
legal arguments in many of these cases bordered on frivolous. For example, it
should not be a surprise that a driver challenging a hit-and-run conviction
failed to persuade the highest court of pre-statehood Hawaii that his
conviction should be thrown out because there was an apportionment issue in
the territorial legislature. Def. Br. 17 (citing Territory v. Tam, 36 Haw. 32, 36
(1942)). That courts have rejected such far-fetched claims says nothing about
the proper outcome here. If anything, it establishes that our courts would
have little tolerance for frivolous claims attempting to exploit the limited
precedent established by affirming the trial court’s order.

 -14The army of strawmen Defendants have marshaled must not dissuade
this Court from enforcing the North Carolina Constitution. A ruling affirming
the trial court’s determination that Defendants cannot use an illegal and
racially gerrymandered supermajority to make permanent changes to the
North Carolina Constitution would be exactly that—and nothing more.
III.

This case does not present a political question.
Defendants also argue that the courts cannot address the serious

constitutional issues presented here because this case raises a political
question. If this Court accepted that argument, it would mean our courts
could never stop a racially gerrymandered General Assembly from amending
the North Carolina Constitution—no matter the harm to minority rights.
Defendants’ argument evokes a bygone era when courts deployed
political-question-type reasoning to reject challenges to state constitutional
amendments that disenfranchised African Americans in the Jim Crow South.
See generally Richard H. Pildes, Democracy, Anti-Democracy, and the Canon,
17 Const. Comment. 295 (2000) (discussing Giles v. Harris, 189 U.S. 475
(1903), and its historical context). But it is out of step with modern decisions
on the political question doctrine. Those decisions make clear that the courts
not only can, but must, rule on challenges to state laws that target minority
voting rights. See, e.g., Baker v. Carr, 369 U.S. 186, 216 (1962) (challenge to
legislative apportionment did not present a political question); Gomillion v.

 -15Lightfoot, 364 U.S. 339, 346-47 (1960) (same for racial gerrymandering).
More generally, they make clear that when “a government action is
challenged as unconstitutional, the courts have a duty to determine whether
that action exceeds constitutional limits.” Leandro v. State, 346 N.C. 336,
345, 488 S.E.2d 249, 253 (1997).8
To be sure, modern decisions recognize that a case can present a
political question when it “revolve[s] around policy choices and value
determinations constitutionally committed for resolution” to the political
branches. Bacon v. Lee, 353 N.C. 696, 717, 549 S.E.2d 840, 854 (2001); see
also Baker v. Carr, 369 U.S. at 216. But this case does not turn on policy
choices committed to the political branches. It turns on an “issue of
constitutional interpretation” that the courts have “a duty to decide,” Cooper
v. Berger, 370 N.C. 392, 412, 809 S.E.2d 98, 110 (2018)—namely, whether the
North Carolina Constitution permits a racially gerrymandered legislature to
propose constitutional amendments. Defendants’ contrary arguments (Def.
Br. 17-24) have no merit.
The decision on which Defendants rely, Leonard v. Maxwell, 216 N.C. 89, 3
S.E.2d 316 (1939), predates the articulation of today’s political question
doctrine in decisions like Baker v. Carr. In any event, Leonard does not
control. It involved a challenge to regular legislation based on an argument
the General Assembly should have been reapportioned after the 1930 census,
Leonard, 3 S.E.2d at 324, not a challenge to constitutional amendments
based on a final judicial ruling that the General Assembly was racially
gerrymandered. It does not support the argument that this case presents a
political question.
8

 -16Textual commitment to another branch. Defendants contend that
the Constitution commits the issue here to the General Assembly because it
grants each house the power to judge the “qualifications” of its members. Def.
Br. 23-24 (quoting N.C. Const. art. II, § 20). But this case does not concern
the “qualifications” of any member (which are listed in Article II and have no
connection to racial gerrymandering). It concerns the power of the legislature
as a whole—as Defendants admit elsewhere in their brief. See id. at 33-34
(attempting to distinguish cases about officers because they did “not involve
the full Legislature”).
Judicially manageable standards vs. policy determinations.
Defendants also miss the mark in contending that courts lack judicially
manageable standards for distinguishing between actions that a racially
gerrymandered legislature can and cannot take, and thus must use policy
judgments to draw that distinction on a case-by-case basis. Def. Br. 18-21.
The permanence of constitutional amendments distinguishes them from all
other legislative action. See supra 11-13. That distinction is a categorical,
judicially manageable one between constitutional amendments and other
legislation that rests on the supermajority requirement in the constitutional
text itself—not on policy judgments. Because this approach singles out
proposed constitutional amendments for unique treatment, Defendants err in

 -17portraying it as “an attack on any law that the General Assembly has
passed.” Def. Br. 18.
Respect for coordinate branches. Defendants further err when they
argue that a ruling on the merits of this case would demonstrate a “lack of
respect” for the legislature. Def. Br. 22. Every ruling that the legislature has
violated the Constitution “might in some sense be said to entail a ‘lack of
respect,’” but that “cannot be sufficient to create a political question.” United
States v. Munoz-Flores, 495 U.S. 385, 390 (1990). Otherwise, courts could
never rule on constitutional challenges to legislative action, and the many
recent

decisions

holding

that

the

General

Assembly

has

violated

constitutional limitations would have been wrongly decided. See, e.g., North
Carolina v. Covington, 137 S. Ct. 2211 (2017); Cooper v. Harris, 137 S. Ct.
1455, 1481-82 (2017); McCrory, 831 F.3d at 214-15; Cooper v. Berger, 370
N.C. at 422, 809 S.E.2d at 116; State v. Berger, 368 N.C. 633, 649, 781 S.E.2d
248, 258 (2016). So would the decision of the three-judge panel in this
litigation, which held that the General Assembly violated the state
Constitution by adopting misleading ballot questions for two of its proposed
amendments—and rejected Defendants’ effort to hide behind the political
question doctrine. See Cooper v. Berger, No. 18-CVS-9805, 2018 WL 4764150,
at *2-3, *13-15 (N.C. Super. Aug. 21, 2018).

 -18In any event, Defendants’ plea for respect rings hollow in this case.
Defendants and their party disrespected the Legislative Black Caucus, its
members, and its constituents when they used racial gerrymandering to
diminish minority representation in the General Assembly, and when they
went on to wield their resulting supermajority to propose a constitutional
amendment on voter identification that further threatens minority voting
rights. It would add insult to injury for the courts now to refuse, based on
“respect” for this legislature, to decide whether it violated the North Carolina
Constitution in the process. The Court should reach the merits—and rule
that a racially gerrymandered legislature lacks the power to amend our
Constitution.
CONCLUSION
For the foregoing reasons, as amicus curiae, the North Carolina
Legislative Black Caucus asks this Court to affirm.

 -19Respectfully submitted this
12th day of July, 2019.

Electronically Submitted
Adam K. Doerr
N.C. Bar No. 37807
adoerr@robinsonbradshaw.com
N.C. R. App. 33(b) Certification: I
certify that all of the attorneys listed
below have authorized me to list their
names on this document as if they
had personally signed it:
Robert E. Harrington
N.C. Bar No. 26967
rharrington@robinsonbradshaw.com
Erik R. Zimmerman
N.C. Bar No. 50247
ezimmerman@robinsbradshaw.com
Travis S. Hinman
N.C. Bar No. 50779
thinman@robinsbradshaw.com
ROBINSON, BRADSHAW &
HINSON, P.A.
101 North Tryon Street, Suite 1900
Charlotte, North Carolina 28246
Telephone: (704) 377-2536
Facsimile: (704) 378-4000
Attorneys for Amicus Curiae
the North Carolina Legislative
Black Caucus

 -20CERTIFICATE OF COMPLIANCE
Pursuant to Rule 28(j) of the North Carolina Rules of Appellate
Procedure, I hereby certify that the foregoing brief, which is prepared using a
13-point proportional font, contains fewer than 3,750 words (excluding the
caption, index, table of authorities, certificate of service, and this certificate of
compliance) as reported by the word-processing software.
This the 12th day of July, 2019.
Electronically Submitted
Adam K. Doerr

 -21-

CERTIFICATE OF SERVICE
The undersigned counsel hereby certifies that on this day the foregoing
was electronically filed with the North Carolina Court of Appeals and,
additionally, a copy was served upon the following counsel of record via First
Class U. S. mail as follows:
David Neal
Kimberley Hunter
Southern Environmental Law Center
601 West Rosemary Street, Suite 220
Chapel Hill, NC 27516-2356
dneal@selcnc.org
khunter@selcnc.org
Counsel for Plaintiff-Appellee

Noah H. Huffstetler, III
D. Martin Warf
Nelson Mullins Riley & Scarborough
LLP
GlenLake One, Suite 200
4140 Parklake Avenue
Raleigh, NC 27612
noah.huffstetler@nelsonmullins.com
martin.warf@nelsonmullins.com
Counsel for Defendants-Appellants

Alexander McC. Peters
Senior Deputy Attorney General
N.C. Department of Justice
Post Office Box 629
Raleigh, NC 27602
apeters@ncdoj.gov

Irving Joyner
Post Office Box 374
Cary, NC 27512
ijoyner@nccu.edu

Daryl Atkinson
Leah Kang
Forward Justice
400 W. Main Street, Suite 203
Durham, NC 27701
daryl@forwardjustice.org
lkang@forwardjustice.org
This the 12th day of July, 2019.
Electronically Submitted
Adam K. Doerr
N.C. Bar No. 37807
adoerr@robinsonbradshaw.com