Author photoJohn Hood's Syndicated Weekly Column
UNC Dean Should Do Homework on Redistricting

By John Hood

September 12, 2003

RALEIGH – My alma mater, UNC-Chapel Hill, has good reason to be embarrassed.

No, I’m not referring to the latest flap over freshman readings, the school’s rather questionable financial “crisis,” or even the basketball team. I’m reacting to public statements by the dean of UNC’s law school on North Carolina’s ongoing redistricting imbroglio.

Even since Gene Nichol – a former Democratic candidate in Colorado – came to North Carolina to take over as dean, he has worn his politics on his sleeve. Opining on a host of issues, he has confirmed the left-wing slant that many perceive at UNC, which is heavily subsidized by mostly non-leftist taxpayers.

Naturally, I’m not questioning his right to speak. I am questioning his judgment, given the position he holds. And on redistricting, a subject with which he supposedly has prior experience, I am questioning his basic competence.

Reacting to the latest motion by Republican plaintiffs who successfully sued last year to overturn an egregious gerrymander of legislative districts, Nichol told the Winston-Salem Journal that the North Carolina Supreme Court had “chosen to play [redistricting] in a partisan way” and so the plaintiffs had just decided to “return to the well” for more favoritism. A few days later, Nichol wrote an op-ed in the Raleigh News & Observer that expanded on his conspiracy theory and stated that the court had failed to “find a specific violation of the constitution and fix it,” thus turning redistricting into a political game.

These arguments would invite a giggle if they were not surrounded by an aura of authority bestowed by Nichol’s affiliation. Among other things, he doesn’t mention that the plaintiffs’ latest action came after a legislative attempt to change the venue of the case so as to secure a friendlier judge – surely an objectionable attempt to subvert the independent judiciary. The new motion cannot be understood outside of that context.

While Nichol fretted that the litigation might violate the constitution’s grant of authority over redistricting to legislators, he expressed no concern at all for the constitutional violations that judicial intervention has sought to rectify. The main issue has been a constitutional requirement that districts respect county lines. The state followed the rule for years, but starting in the 1980s lawmakers fearful of losing their monopoly on power in Raleigh began to get more “creative” in drawing maps and ignored county borders.

They contended that the federal Voting Rights Act had invalidated the constitution’s whole-county provision. But the Voting Rights Act never applied to North Carolina as a whole. It applied to only some counties. A basic rule of legal interpretation, I am told by many attorneys (including some who graduated from UNC law school, apparently just in time), is that one should attempt to harmonize apparently conflicting statutes or constitutional provisions if possible. In this case, to suggest that when a federal law comes into contact with a constitutional provision in any way it completely neutralizes it is to advance an absurd doctrine. If North Carolina could respect the letter and spirit of the whole-county provision while also respecting the Voting Rights Act, it should do so. That’s what the state supreme court, that out-of-control cabal, reasonably concluded.

Now, it just so happens that I didn’t agree with much of court’s decision. I think it is manifestly obvious – to anyone familiar with state politics – that the trial court’s interim districts were far less partisan and far more respectful of voters than the maps the Democratic legislature drew, which rendered most districts uncompetitive. Indeed, GOP candidates in 2002 still got many more votes than Democrats in both the N.C. House and Senate and still ended up with less than a majority of legislators (though Republicans tend to oversell their “popular vote” case here, just as Democrats did about the 2000 presidential election).

My beef was not with the court’s redistricting rules, which were sound, but with the fact that they were the court’s rules. While having ample precedent in other states, the rules were never voted on by our legislature or written into our constitution through amendment. Of course, this is the Catch-22: the traditional way to limit partisan gerrymandering would have been through the actions of legislators who were themselves the authors of the partisan gerrymanders.

It is, in other words, quite possible to believe that the court erred but that it did so for understandable reasons. Indeed, that is what many fair-minded critics have concluded. Unfortunately, they do not include the dean of the UNC law school, who prefers to cast aspersions and blow partisan smoke over an issue he apparently doesn’t understand.

-30-

Hood is president of the John Locke Foundation, publisher of Carolina Journal.com, and host of the new statewide program “Carolina Journal Radio.”

Add This