[EL] Unlawful legislature can't propose constitutional amendments?

[Paul Smith]

The district court made a similar point in Baker v Carr in support of non-justiciability.  It said that a ruling that the Tennessee legislative map was unconstitutional would disempower the legislature from fixing the situation:

Kidd v. McCanless, 200 Tenn. 273, 292 S.W.2d 40<https://law.justia.com/cases/tennessee/supreme-court/1956/292-s-w-2d-40-1.html>, affirmed by the Supreme Court of the United States in Kidd v. McCanless, supra, holds that a declaration of unconstitutionality of the existing apportionment statute of Tennessee, without more, would result in a destruction of the state government itself, since the de facto doctrine would not be applicable to maintain the present members of the legislature in office and there would be no prior valid apportionment act to fall back upon."

________________________________
From: Law-election <law-election-bounces at department-lists.uci.edu> on behalf of Ackerman, Bruce <bruce.ackerman at yale.edu>
Sent: Saturday, February 23, 2019 5:28:28 PM
To: Marty Lederman
Cc: Election Law Listserv
Subject: Re: [EL] Unlawful legislature can't propose constitutional amendments?

Marty, This was precisely the position of the Union with regard to the Confederate Constitution during the Civil War. See vol. 2 of my We the People.
Bruce

Sent from my iPad

On Feb 22, 2019, at 11:08 PM, Marty Lederman <Martin.Lederman at law.georgetown.edu<mailto:Martin.Lederman at law.georgetown.edu>> wrote:

What's most striking about the decision is that the state court judge doesn't cite any authority under NC law for the key proposition that an unlawfully constituted legislature (as NC's was) does not "represent the people" and therefore cannot pass legislation to put proposed constitutional amendments on the ballot.  Did the plaintiffs cite anything in their briefs to support such a novel idea?

On Fri, Feb 22, 2019 at 5:25 PM Rick Hasen <rhasen at law.uci.edu<mailto:rhasen at law.uci.edu>> wrote:
Breaking: North Carolina State Court Rules State Voter ID Constitutional Amendment is Void Because Enacted by a Racially Gerrymandered Legislature; Not Clear if Ruling Will Stand<https://nam05.safelinks.protection.outlook.com/?url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D103731&data=02%7C01%7Cbruce.ackerman%40yale.edu%7Cad66b94eabce47f4c88808d6994492d4%7Cdd8cbebb21394df8b4114e3e87abeb5c%7C0%7C1%7C636864917153284843&sdata=eoSoriJyKI1ida%2BPzNg3GteOSLOXa%2FeDpbfUQbFtE9g%3D&reserved=0>

Posted on February 22, 2019 2:22 pm<https://nam05.safelinks.protection.outlook.com/?url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D103731&data=02%7C01%7Cbruce.ackerman%40yale.edu%7Cad66b94eabce47f4c88808d6994492d4%7Cdd8cbebb21394df8b4114e3e87abeb5c%7C0%7C1%7C636864917153294856&sdata=FffPTwH7UiKv9CSFSXrKYR860y7y4GpIBmex6TPniKo%3D&reserved=0> by Rick Hasen<https://nam05.safelinks.protection.outlook.com/?url=https%3A%2F%2Felectionlawblog.org%2F%3Fauthor%3D3&data=02%7C01%7Cbruce.ackerman%40yale.edu%7Cad66b94eabce47f4c88808d6994492d4%7Cdd8cbebb21394df8b4114e3e87abeb5c%7C0%7C1%7C636864917153294856&sdata=KG5ujf6tAuNIb1DWpuVFslh%2FyPVYQLttMteR8VyhLVc%3D&reserved=0>

Release<https://nam05.safelinks.protection.outlook.com/?url=https%3A%2F%2Fwww.southernenvironment.org%2Fnews-and-press%2Fpress-releases%2Fcourt-voids-two-constitutional-amendments&data=02%7C01%7Cbruce.ackerman%40yale.edu%7Cad66b94eabce47f4c88808d6994492d4%7Cdd8cbebb21394df8b4114e3e87abeb5c%7C0%7C1%7C636864917153304860&sdata=sd3zQi6uPcmuhkJYyOnZkxvg5xNUl1gZmpJcqOB5AVo%3D&reserved=0>:

The Wake County Superior Court today ruled<https://nam05.safelinks.protection.outlook.com/?url=https%3A%2F%2Fwww.southernenvironment.org%2Fuploads%2Fwords_docs%2Fdoc03389420190222171503.pdf&data=02%7C01%7Cbruce.ackerman%40yale.edu%7Cad66b94eabce47f4c88808d6994492d4%7Cdd8cbebb21394df8b4114e3e87abeb5c%7C0%7C1%7C636864917153314864&sdata=LEd%2FzFQO3nqei7FXkYpuQ5a0rj8f9yQvxn5wEB1Rk0k%3D&reserved=0> that the illegally gerrymandered North Carolina General Assembly did not have legal authority to place constitutional amendments on the ballot because it did not act with the full will of the people of North Carolina.  The court voided two constitutional amendment proposals – related to imposing a photo voter ID requirement and lowering the state income tax cap – that were hurriedly enacted in the final 2018 special session of the illegally-constituted legislature before it left office.
Judge Bryan Collins of the Wake County Superior ruled that “[a]n illegally constituted General Assembly does not represent the people of North Carolina and is therefore not empowered to pass legislation that would amend the state’s Constitution.” As a result, the two amendments challenged by the plaintiffs are void, and the constitution will revert to its earlier form.

It is not at all clear that this ruling will stand. Aside from the fact that these amendments went before voters for a popular vote (which was not called into question), this ruling would seem to call into question all the actions of the General Assembly based upon the improper drawing of districts. I have not seen such a holding before.

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