Opinion: Daily Journal

An Unholy Redistricting Mess

RALEIGH – Like a lot of folks tonight, I’m still trying to read through and interpret the various opinions in Stephenson v. Bartlett, the latest in a series of confusing court decisions about the North Carolina redistricting process. Five of the 7 members of the N.C. Supreme Court ruled that the plaintiffs were right in their assertion that House and Senate maps drawn by the Democrat-controlled General Assembly had violated the state constitution’s provision against splitting counties.

All five members in this majority were Republicans, and the decision was written by Chief Justice Bev Lake. That’s the headline. But there’s much more to the story.

Four of the five justices then ruled that, in reality, the county-line provision doesn’t always apply to legislative redistricting, even in counties outside the jurisdiction of the federal Voting Rights Act. They not only rejected the idea of multi-county, multimember districts as a remedy for the Democrats’ unconstitutional gerrymander, but they actually ruled that such districts are themselves unconstitutional unless there is a “compelling state interest” at stake – which is apparently so strict a test as to invalidate not just proposed new multimember districts but all of the existing ones.

This smaller majority (Republican Bob Orr opted out here) found that multimember districts violated another provision of the state constitution, this one involving equal protection under the laws. In doing so, they essentially found that the equal-protection clause canceled out the whole-county clause when the latter would appear to require multimember districts in order to keep districts as equivalent as possible in population.

Got that?

Orr went a different direction, arguing (correctly) that the majority had accepted an argument – that the equal protection clause prevents multi-county districts and thus invalidates the plaintiffs’ proposed remedy as well as, at least partly, the whole-county provision – even though “no party raised such an issue at trial, nor did anyone argue such an issue to this court.” The closest anyone came to making a similar argument was the spurious one by civil rights attorney Julius Chambers, an intervenor, that embracing multi-county districts would harm the voting rights of racial minorities. But since everyone had stipulated up front the inapplicability of the whole-county provision in counties under the Voting Rights Act, his argument was curious at best. Nor does it seem to be an excuse for the majority to strike down multimember districts, which both the plaintiffs and the state had supported in their arguments to the Court.

It was left to the two dissenting Democrats, Sarah Parker and G.K. Butterfield, to make the obvious point that the Republican majority was engaging in a legislative rather than a judicial act. One can certainly make a case for single-member districts, on a variety of public policy grounds, but it’s hard to argue at this late date that the state constitutional mandates them. That Parker and Butterfield would object to judicial activism here is ironic and more than a little hypocritical, given their past rulings.

The charge still seems to stick, though, unless I am missing something. Still, on the issue of whole-county districts, their opinions were even more embarrassing than the majority’s were on the remedy, so no plaudits are in order.

Bottom line (for now): the plaintiffs won the case, the state legislature will redraw the districts (or Superior Court Judge Knox Jenkins will if necessary), we’ll have a primary by late summer, and there will be more partisan competition and less voter confusion that the old maps would have generated. Cool.

But the majority, by allowing the legislature to continue to subdivide counties or even in some cases to stitch together portions of neighboring counties into districts, has still left the door open for legislative Democrats to gerrymander. And by embracing a theory advanced by neither side in the case, nor apparently by precedent or constitutional text, the majority has set back the cause of judicial restraint.

All in all, not exactly a gratifying day at the court.