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

Sun Feb 24 15:01:19 PST 2019

Dear Marty:

To make a (very) long story short, the key case is Texas v. White, 74 U.S. 700 (1868),where Chief Justice Chase, writing for the majority , refuses to recognize the legitimacy of an action by the Confederate government even when it was in power,  holding that:

“. . . the ordinance of secession, adopted by the convention and ratified by a majority of the citizens of Texas, and all the acts of her legislature intended to give effect to that ordinance, were absolutely null. . .

I entirely agree with you, however, that it is remarkable that the North Carolina court doesn’t cite the case or whether it is applicable to the very different situation it confronted.

Bruce
From: Marty Lederman <Martin.Lederman at law.georgetown.edu>
Sent: Sunday, February 24, 2019 3:06 PM
To: Ackerman, Bruce <bruce.ackerman at yale.edu>
Cc: Rick Hasen <rhasen at law.uci.edu>; Election Law Listserv <law-election at uci.edu>
Subject: Re: [EL] Unlawful legislature can't propose constitutional amendments?

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<mailto: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<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%7Cd300f293878b4061e7a608d69a938e43%7Cdd8cbebb21394df8b4114e3e87abeb5c%7C0%7C0%7C636866355872525443&sdata=MncilGcbtL1NzzK83qTdZo8ZLbKHoqeCZ%2BhPYwOpMM8%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%7Cd300f293878b4061e7a608d69a938e43%7Cdd8cbebb21394df8b4114e3e87abeb5c%7C0%7C0%7C636866355872525443&sdata=MncilGcbtL1NzzK83qTdZo8ZLbKHoqeCZ%2BhPYwOpMM8%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%7Cd300f293878b4061e7a608d69a938e43%7Cdd8cbebb21394df8b4114e3e87abeb5c%7C0%7C0%7C636866355872535447&sdata=ZIi8qP4YO3oqxrCxh5Y%2BK0nIK9m%2Bw1hO7dA2jVZCbc0%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%7Cd300f293878b4061e7a608d69a938e43%7Cdd8cbebb21394df8b4114e3e87abeb5c%7C0%7C0%7C636866355872535447&sdata=bXOwNK0d8mgut6cJckLzsYiefPJ%2FsYwYKS94Tfy6lnc%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%7Cd300f293878b4061e7a608d69a938e43%7Cdd8cbebb21394df8b4114e3e87abeb5c%7C0%7C0%7C636866355872545457&sdata=uNkdDLFC%2BFytGI4a159U7ebi0YD95Xjljo1%2FC%2F4xJIA%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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