Opinion: Daily Journal

Behind the Latest Redistricting Gambit

North Carolina’s long-running fight over legislative redistricting just took another odd turn. The Republican plaintiffs in Stephenson vs. Bartlett have so far won every important legal battle in their quest to prevent legislative leaders from gerrymandering the House and Senate districts to eliminate significant competition and engineer continued control of state government. Last week, the plaintiffs returned to the trial court in Johnston County with a motion to amend their complaint. They now want Superior Court Judge Knox Jenkins to intervene and force legislative leaders to draw new House and Senate districts before early November. Failing that, they want Jenkins to draw the districts himself – districts that would be in place for the rest of the decade.

It was, in many ways, an audacious legal maneuver. For the judiciary to assume the responsibility for state redistricting until after the 2010 Census would be to countenance a significant deviation from tradition and from the state constitution’s grant of authority over redistricting to elected lawmakers. On this, I find myself in partial agreement with Gene Nichol, the politically outspoken dean of the UNC-Chapel Hill law school, who suggested that the motion was premature if not a significant overreaching. (Nichol’s broader criticism of the Republican position on redistricting, and the North Carolina judiciary’s handling of the issue, is uninformed and malicious, as I will discuss in my syndicated newspaper column next week).

However, you can’t fairly evaluate the plaintiffs’ latest move without doing two things: 1) examining the motion in detail and 2) interpreting it in the light of a legislative attempt earlier this year to move the redistricting case out of Jenkins’ court and into Wake County, where Democratic lawmakers apparently hope to get a friendlier judge.

First, the motion filed September 2 by the plaintiffs and their two lead attorneys, Tom Farr and Robert Hunter, doesn’t read like an attempt to bait a relentlessly partisan judge into muscling the General Assembly, though that is what many probably think it does based on the public comments of state lawmakers and of Nichols and his ilk. Instead, the plaintiffs come across as frustrated by the continued intransigence of legislative leaders who refuse to recognize the state supreme court’s authority on state constitutional matters – indeed, these lawmakers seem to think that their election somehow gives them the moral authority lacked by justices of the North Carolina Supreme Court, who are also elected (and never from gerrymandered districts).

The plaintiffs state four causes of action. First, they note that Jenkins still retains authority over legislative redistricting, and that his injunction forbidding legislative districts that don’t comport with the state constitution remains in force. More about this later.

Second, they argue that Jim Black, Richard Morgan, and Marc Basnight have publicly committed themselves to a course that will result in a violation of future candidates’ right to due process. That is, they say that because this legislative trio wants to hold a special redistricting session after November 2, 2003, it will be impossible for candidates who are disadvantaged by the resulting new district maps to move into other districts and qualify for election. The state constitution contains a provision that requires candidates to reside in a district for at least one year prior to the general election. Black and Morgan have already stated that this is at least one reason they are delaying the redistricting process – so as to prevent members from moving around afterward. That will allow Black and Morgan (and Basnight, if he is inclined to) to force lawmakers they don’t like to run against each other in party primaries or general elections.

The plaintiffs’ due-process argument here is that the failure to act before November 2 will result in potential candidates not receiving enough notice of the districts they’ll be in to allow them to “comply with the one-year residency” rule. While I agree that the Black-Morgan plot is capricious and disreputable, and I admit I am not an attorney, this due-process claim seems dubious to me. Do you really have a constitutional right to enough warning so that you don’t have to face a competitive primary? Does due process really protect the ability of potential candidates to shop around for congenial districts? A related issue is the plaintiffs’ allegation that Black and Morgan would have to violate the redistricting rules set out by the Supreme Court in carrying out their little plot. It’s not clear to me that this is true. Several of the targeted Republican members in question reside in the same or a next-door county, for example.

Similarly, the plaintiffs’ third cause of action is that the failure to redistrict by November 2 will violate potential candidates’ right to equal protection under the laws. They argue that placing some sitting lawmakers in the same district while letting other lawmakers have districts all to themselves – and to do so without leaving time for candidates to move elsewhere – constitutes “arbitrary and invidious discrimination.” This argument would seem to apply to plenty of previous redistricting maps. Indeed, one could argue – and I have – that those drawing district maps shouldn’t even be informed about where existing incumbents live, so as not to take any action that protects incumbents’ political turf. Districts should be drawn to serve voters, not politicians. In other words, incumbents don’t have a right to be re-elected, and so it would seem that they can’t have an equal protection claim if they are politically disadvantaged and their colleagues are not.

The fourth cause of action is the plaintiffs’ suggestion that there is an “impasse” in legislative redistricting. That is, they argue that public statements by the legislative leaders, the plan to hold the special session in November, and other evidence indicates that there is a very possibility that legislative elections cannot be held on time and in compliance with the law and the constitution.

Here they are clearly onto something. Any set of legislative districts must be pre-cleared by the U.S. Department of Justice and could well be subject to state judicial review given the past litigation. It is irresponsible for Black, Morgan, and Basnight to wait until November and possibly risk missing the appropriate deadlines for filing and the primary election in May. Sure, the filing deadline was moved back in 2002 and the primaries were held late. But that was an emergency situation created by the legislators’ unwillingness to draw constitutional maps. This time around, they have no excuse to risk disruption of the state’s electoral process other than their own political machinations.

Interestingly, the plaintiffs conclude this section by requesting that the court “set a date by which the General Assembly must enact a constitutional redistricting plan.” Only if lawmakers then fail to meet the deadline would the plaintiffs want the court “to take jurisdiction of the drafting of these plans and impose court-drawn permanent plans” to be used until the 2010 Census. So the Republican plaintiffs aren’t, in fact, asking the judiciary to take over the process precipitously, though that is how their argument was portrayed by many.

This brings me to the issue of venue. Plaintiffs appear worried that even though the state legislature didn’t pass a special provision to move the case from Jenkins’ court to Wake County, it might try again – perhaps even in the special session. Filing this motion to amend now creates a new round of litigation in the trial court of jurisdiction, thus possibly making it harder – or at least more embarrassing – for lawmakers to then try to jerk it out in November. More importantly, the plaintiffs aren’t actually asking Jenkins to take over, again. They are asking him to impose a deadline on the General Assembly so that it can’t start the process in November and thus imperil the election calendar and process just to suit Morgan’s or Black’s personal political motives.

One other wrinkle is possible. In the past, there has been some disagreement about the meaning of the state constitution’s one-year residency requirement. Some argue that it applies even if the districts aren’t in existence a year before the general election. This is the position assumed by the plaintiffs. But others argue – and I completely agree with them – that the one-year residency requirement can’t possible lock candidates into whatever districts they are drawn into because there are no districts in force It is impossible, in other words, to reside for at least a year in a district if it does not exist for at least a year.

The state attorney general’s office, in order to dispense with the due process and equal protection issues alleged in the motion, may well stipulate to this second, and reasonable, interpretation – which would have the effect of nuking whatever political objectives Morgan and Black have in mind. That would take away their interest in waiting to November, and perhaps result in quicker action, which is what the plaintiffs wanted in the first place.

As usual, you can’t interpret the punches and counterpunches of North Carolina’s redistricting fight without delving into the details and making some educated guesses about motivations and strategy. In this case, the Republican plaintiffs are filing what I perceive to be a somewhat-flawed motion with a laudable goal in the public interest.

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