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Kirk Kovach: Ruling’s reaction shows legislative leaders’ hypocrisy

By Kirk Kovach

Last Friday, a Wake County Superior Judge threw out two recent state constitutional amendments — voter ID and the income tax cap. A lot of hoopla surrounds this case, and I would contest that most of it is disingenuous political posturing coming from the losing side.

Briefly, the decision rendered by Judge Bryan Collins said that an illegitimate North Carolina General Assembly had no standing to put the constitutional amendments onto the ballot last November. The first half of that logic is pretty well-established — multiple court cases have determined that North Carolina districts, both for state legislature and at the congressional level, are gerrymandered to a point that makes them unrepresentative of the state and its political makeup. So that is the first phase of his logic. The N.C. Constitution, if they have not amended it again since I wrote this, says that “all political power is vested in and derived from the people only.”

With unrepresentative districts, that is hard to achieve.

Next, the big question swirling after the decision was its scope. If the amendments placed on the ballot were unconstitutional because an illegitimate body put them there, would it not follow that all statutes enacted by this same body would face a similar fate? Not exactly.

The defendants cited a 1963 court case, Dawson v. Bomar, where a man argued that he could not be executed because the law making his crime a capital offense was enacted by a malapportioned Tennessee General Assembly. The Tennessee Supreme Court didn’t bite.

In cases where there is a question about the legitimacy of a legislative body, the “de-facto” members and statutes they pass are as valid as “de-jure” members. To suggest otherwise would necessarily dissolve state government, and the Tennessee Supreme Court decided that it would not find legislative acts unconstitutional “where the result would be to create chaos and confusion in government.”

Chaos and confusion are the guiding principles of the North Carolina General Assembly; one decision by Collins does not inject any more of either into Raleigh.

But the scope of his decision was narrow, in the sense that it only applied to constitutional amendments. In short, the NCGA needs three-fifths of both chambers to pass a ballot amendment to put it before the voters. Constituted as they are, the number of illegally gerrymandered districts makes it such that the NCGA could not reach a “legitimate” three-fifths majority.

Moreover, rescinding legislation that has an active impact on our daily lives is different than rescinding two amendments which have no practical effect yet.

The income tax cap is well above the current income tax rate, and the voter ID law has yet to take effect in any election. Former NC Supreme Court Justice Barbara Jackson noted that constitutional amendments have additional validity because they were voted for by the people, even if their introduction was somehow tainted. That is a compelling argument, and will no doubt factor into considerations when this decision is appealed.

The fact that this decision is going to be appealed is a good thing. It shows that our system is working — that North Carolina government isn’t dissolving or in a state of chaos and confusion.

If anything, the focus of this kerfuffle should be on the naked hypocrisy of legislative leaders in Raleigh, who have the gall to target and denounce a single court decision they dislike while they continue to sit in seats that they haven’t fully earned. This General Assembly has been tainted from the onset by gerrymandering and it should be telling that cases like this are the new norm.

Collins’ decision seems outlandish because it sets a new precedent, but that precedent is just as likely to be overturned. A higher court will review his decision and so on until it either stands or reverses.

What should really give us pause is the fact that we are habituated to accept as normal a General Assembly made up of representatives that don’t really represent our state.

Fair districts would have mitigated these expensive court cases and endless litigation long ago, but Senate Leader Phil Berger and Speaker Tim Moore would much prefer to spend your tax dollars fighting to keep their own power intact.

Kirk Kovach is from Rowan County and contributes to politicsnc.com.

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