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

[Marty Lederman]

Bruce:  Was the Union's position that all of the legislation enacted by the
Confederate Congress was null and void, even w/r/t the legal effects it had
within the seceding states before the war ended?  If so, that'd be fairly
remarkable, no?  In any event, if that's right, it would have been
something the court here could have cited!  The utter absence of any cited
authority--not even a reference to the provision of NC law (or natural law,
or equity, etc.) that is said to be violated--is, to say the least . . .
unusual.

On Sat, Feb 23, 2019 at 5:28 PM Ackerman, Bruce <bruce.ackerman at yale.edu>
wrote:

> 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> 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> 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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-- 
Marty Lederman
Georgetown University Law Center
600 New Jersey Avenue, NW
Washington, DC 20001
202-662-9937
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