Opinion: Daily Journal

A Wide-Ranging Court Ruling

RALEIGH — A superior-court judge in Franklin County issued a ruling Monday that could influence legislative politics and decisions for the rest of the decade, shape North Carolina’s statewide elections for governor and Senate in 2004, and even affect the presidential-nomination process.

And Judge Robert Hobgood’s decision, on legislative redistricting (what else?), isn’t likely to be the last word on these weighty subjects, either.

At the risk of plunging headlong into very deep and troubled waters without a particularly strong set of lungs, let me explain a bit more of my initial reaction to Hobgood’s ruling. It largely upheld legislation enacted by the North Carolina General Assembly earlier this year to create a new three-judge panel to hear both future and pending litigation on redistricting matters. The Democrat-controlled legislature’s intention was obviously to strip Johnston Superior Court Judge Knox Jenkins of jurisdiction over the matter, as prominent Democrats have believed for more than a year now that Jenkins had been handpicked by the Republican plaintiffs to be biased in their favor.

The new provision calls for Supreme Court Chief Justice Bev Lake to appoint the three-judge panel to sit in Wake County and to oversee redistricting litigation. At first glance it would not appear that this gambit would offer much partisan advantage to Democratic legislators and party officials, given that Lake is himself a Republican and author of the decision that previously upheld Jenkins’ rulings and set forth a coherent set of redistricting principles that GOP plaintiffs now claim, again, have been violated. But I think that Democratic leaders know Lake and his Republican colleagues in the judiciary don’t want to be perceived as partisan and unfair. The former are counting on the latter to bend over backwards to avoid that perception, perhaps to the detriment of the original Stephenson v. Bartlett plaintiffs.

I’m not sure their fervent wish constitutes a likely scenario. The law is the law. Hobgood’s ruling rejected the plaintiffs’ arguments against the legislature’s jurisdiction switcheroo, but my initial reaction to the news coverage of his decision (I haven’t yet read it) is that it rests on shaky foundations and could well be reversed on appeal. For one thing, there’s this little matter of the legislature taking a pending case away from a presiding judge, something that would seem to violate both the letter and the spirit of existing law. Another issue is the separation of powers, with plaintiffs’ attorneys arguing that the state legislature does not have the constitutional authority on its own to create a new court, which is what the three-judge panel appears to be.

Hobgood apparently put more stock in the response to these objections from the state attorney general’s office. On the latter point, for example, deputy AG Alexander Peters said that there was ample precedent for the legislature to create three-judge panels — to oversee investigative grand juries, for example. But grand-jury probes aren’t trials. If the new three-judge redistricting panel, something never before existing in North Carolina, isn’t a new court, then what is?

Meanwhile, as the two sides prepare for the inevitable appeal — possibly going straight to the Supreme Court — politicians in both major parties have to think through some obvious electoral implications. Whatever the fate of Hobgood’s findings on appeal, they will almost certainly have the effect of delaying the current election schedule, which is supposed to begin with candidate filings in mid-February and include a May primary. The ongoing litigation now will probably move these dates back, pushing the primary into the summer or early fall. That’s good for Democrats who want a short general-election campaign against Richard Burr for U.S. Senate and against whomever the Republicans nominate for governor. In both cases, these Democrats believe the situation will help their better-known nominees — Gov. Mike Easley for sure and Erskine Bowles most likely (a delayed primary also means that former House Speaker Dan Blue won’t challenge him).

Oddly, defenders of the state’s new legislative maps and redistricting panel claimed after Hobgood’s ruling that the opposite effect would occur. “This is the best opportunity to have elections in a timely fashion,” said K. Edward Greene, one of House Co-Speaker Richard Morgan’s lawyers. Maybe I’m missing something, but this sounds absurd. Even if the plaintiffs choose not to appeal the decision, it still means that a brand-new three-judge panel will take over a complicated, fact-intensive case. These judges will need time to get up to speed on the issues, time that Jenkins would not have needed. Surely Hobgood’s decision, whatever its merits, has made it harder to meet the current election schedule.

And it could result in a delay in the May presidential primary, putting in danger North Carolina Democrats’ ability to be represented at the 2004 Democratic nominating convention. Already foreseeing this possibility, there is talk of holding party caucuses for the presidential contest in North Carolina this spring. It will probably happen too late to affect the outcome of the national race, but it will be interesting political theater at least.

Judge Hobgood, like Jenkins before him, has perhaps unwittingly reshuffled the deck of North Carolina politics with a court decision. I can’t wait to see what cards will be dealt out next.

Hood is president of the John Locke Foundation and publisher of Carolina Journal.