North Carolina's 'usurper' legislature challenged on amending constitution

Four of the six proposed constitutional amendments that North Carolina voters are supposed to weigh in on this fall are facing lawsuits claiming the ballot language describing the proposals is so misleading that voters won't know what they're actually considering. A three-judge panel will hear arguments this week, with a September deadline looming for mailing out absentee ballots.

The Republican-controlled N.C. General Assembly approved the proposed amendments for the ballot in June, with little time for public input. The following month, legislators returned to Raleigh for a special session to repeal a 2016 law requiring a state commission to draft ballot language for the amendments. Legislators claimed without evidence that progressive groups were trying to influence the commission, which included two Democrats and one Republican.

Gov. Roy Cooper (D) is suing over two of the proposed amendments that would transfer executive authority to the legislature. One would give legislators near-total control over choosing judges to fill vacant seats, and another would give them complete control over hundreds of state boards and commissions, including state and local elections boards. Though these amendments would give the legislature unprecedented power over the other two branches of government, voters wouldn't know that due to the vagueness of the proposed ballot language. Cooper argues that this means the legislature hasn't actually "submitted" the proposed amendment to voters, as the state constitution requires.

Another lawsuit from the N.C. NAACP and Clean Air Carolina takes on those two amendments on the same grounds as the governor, as well as two others that would lower the state's income tax cap and impose a voter ID requirement.

But in making their case, the advocacy groups are also relying on a novel legal strategy: They argue that the legislature lost its authority to govern in July 2017, when the U.S. Supreme Court affirmed that it was unconstitutionally gerrymandered to disadvantage black voters. Because of that, the groups say, Republican legislators are "usurpers" under state law who lack authority to amend the constitution.

The court's failure to intervene now, they argue, would "allow chaos and confusion to reign as an undemocratically elected body enacts proposed amendments to the most fundamental law of the state in order to further entrench its own power, and to further disenfranchise its minority citizens."

A history of usurpation

In North Carolina and other Southern states, black men gained the right to vote and run for office in 1868, when state constitutions were re-drafted during the post-Civil War Reconstruction. But disputes soon arose between local white power structures and newly enfranchised black communities over the legitimacy of local elections.

In two Reconstruction-era cases, the N.C. Supreme Court sided with the white power structure against black political aspirations — but in doing so, it also created precedents for declaring a governing body or public official to be illegitimate.

After the U.S. Army departed the coastal city of New Bern in 1865, the governor appointed a city council that reigned for nine months before a new council was elected. When the elected council refused to pay an employee hired by the appointed council, the courts had to decide if the employee's contract was valid. Noting that the city's charter required the council to be elected, the high court declared the appointed council "usurpers" and refused to recognize them as "de facto" officers even though the public and other officials had acquiesced to their authority.

Then in 1890, a dispute arose over an election in New Hanover County, which at the time was majority-black and later that decade became the site of a deadly, racially motivated coup d'etat. At the center of the dispute was C.H. Thomas, a black resident concerned that a small group of what he called white "political overseers" controlled local politics and was forcing black men to vote for Democrats — at the time the party of white supremacy — and manipulating local elections to keep a white sheriff in power.

A precinct registrar said that Thomas, who was his clerk, had taken the voter registration books, refused to return them, and ran the 1890 election in that precinct. The local elections board refused to certify the results, with the omitted votes crucial to the outcome of a local judicial race.

Thomas protested when his precinct's votes weren't counted. Presiding over the board's meeting was Judge D. L. Russell, whom Thomas had claimed described blacks as "savages" who were not "fit to govern." He threatened to hold Thomas in contempt.

The case eventually made its way to the N.C. Supreme Court, which sided with the elections board. The opinion by Chief Justice Merrimon — a Democrat who had served in the Confederate Army — declared Thomas a "usurper" with no legal authority. The outcome of an election "unauthorized by law is wholly without legal force," Merrimon wrote.

But in other cases, the court has declined to declare the actions of questionably-elected bodies as constitutionally illegitimate. In two mid-20th century cases, for example, the court recognized members of two town councils along the North Carolina coast as de facto officers even though they were chosen in elections that were unconstitutional because nonresidents who owned local property had participated. The court refused to invalidate the actions the councils had taken before their elections were ruled out of bounds.

In these cases, the court has said that officials appointed or elected in an unconstitutional manner can be de facto officials whose actions are valid — but only before their election or appointment is ruled unconstitutional. Last year, when the question of the North Carolina legislature's legitimacy came up in the federal racial gerrymandering lawsuit, the court concluded that state law is unclear on whether members of the legislature are usurpers.

The NAACP and Clean Air Carolina aren't asking state courts to invalidate all actions taken by this legislature. However, they make the case that a usurper legislature cannot be allowed to fundamentally alter the document governing the entire state in order to solidify power gained by manipulating election districts in a racially discriminatory way.