Court decision may impact constitutional law beyond NC


The N.C. Appeals Court decision in the case of the LPNC vs. The State of North Carolina is a watershed decision for constitutional law with implications far beyond North Carolina, said Jason Kay, a senior staff attorney with the N.C. Institutional for Constitutional Law.

Kay was speaking about the Libertarian and Green parties challenge to the constitutionality of North Carolina’s election laws at a luncheon at the John Locke Foundation

“The very first issue the court had to determine was whether a fundamental right was involved,” Kay explained. If that is the case, he said the court should have applied the concept of “strict scrutiny.”

That means the court should have determined whether or not the state has a compelling interest in limiting ballot access and was using the most narrow and least restrictive measures in its ballot access laws.

“If it is a fundamental right, if the court says yes, then strict scrutiny applies,” he said, “which usually means the government loses.”

“If it is not (a fundamental right),” he said, “the rational basis applies, which usually means the government wins.”

The court ruled unanimously that there is a fundamental right at stake. But in a 2-1 split decision, they applied the presumption that any statue enacted by the legislature is constitutional.

“Let me quote the decision,” Kay said, “because the words are very powerful: This court presumes that any act of the General Assembly is constitutional and resolves all doubt in favor of its constitutionality.”

He compared this to running a 100 yard race beginning at the 30 yard line.

“The court, having held that strict scrutiny applies — which means that they must dig into the statue and a reasoning analysis was appropriate — then said, ‘Well, we have to resolve all doubt in favor of the state,” Kay said.

Kay explained the ruling this way. On the one hand, the court said “We are going to dig in. The state doesn’t get any deference. If there is a least restrictive means we are going to find it. On the other hand, the court said “This is like a criminal defendant before a judge facing jail. We’re going to all doubt in the defendants favor.”

“These are conflicting mindsets,” he said. “It guts strict scrutiny. This changes the landscape of constitutional litigation and has impact far beyond this case,” Kay said.

That’s why the NCIS is submitting an amicus curie brief in the case.

The court also said that when challenging the constitutionality of a statue the burden of proof is on the challenger, who must show that the law is “clearly, positively and unmistakably appears, beyond any responsible doubt” unconstitutional.

“This is a case based on the North Carolina Constitution so the most binding precedents are decisions issued by North Carolina courts on North Carolina law,” Kay said. He noted that the state’s brief and the majority opinion cited numerous precedents from Federal and other state courts.

“That’s partly because there hasn’t been directly on point in North Carolina, but I think it’s fairly wide open as to what a higher court would do. It’s not bound by the decisions of other jurisdictions based on other laws.”

Retired Chief Justice I. Beverly Lake Jr. Lake and Appeals Court Judge Ann Maria Calabria, who wrote the dissenting opinion in the case, were in the audience.

  • Here’s a report by JLF’s Mitch Kokai, along with some video.

One comment

  1. THe court said that if the GA passes a law it is automatical constitutional, the flood gates are open and the end of this Republic.

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