Opinion: Daily Journal

Bush v. Gore v. Redistricting

RALEIGH – It started a couple of weeks ago. Once it became evident that the North Carolina Supreme Court might intervene in a state redistricting case involving this year’s legislative races, a whispering campaign against the court began. The rap was that the 5-2 Republican majority on the court would demonstrate their partisan proclivities by striking down Democratic-drawn districts, thus setting up the GOP for a victory in November.

It didn’t take long for this scurrilous argument, with no shred of evidence whatsoever, to make it into print. The Winston-Salem Journal and The News & Observer ran pieces in which liberal hack Gene Nichol of the UNC-Chapel Hill law school warned of dire consequences should the justices intervene on a party-line vote. Other critics made similar comments, expressly citing the precedent of the U.S. Supreme Court ruling in Bush v. Gore that, in their view, had brought the highest court in the land into disrepute (actually, it headed off a constitutional crisis and thwarted a brazen attempt to steal a presidential election, as argued before in this space – see here).

Today, columnist Jack Betts writes in The Charlotte Observer (click here) that both Republicans and Democrats on the state supreme court were mortified by these comments. They don’t want any future action on the state redistricting case to be perceived as partisan, which may have influenced their actions so far.

Our political process is designed to handle a lot of stress. It offers checks and balances, limits (at least theoretically) the power of any one person or cabal to subvert self-government, and insures that every rampant partisanship cannot, for the most part, shake the public confidence in electoral outcomes. Yes, sometimes it is a close-run thing. Extraconstitutional activism by the judiciary and partisan gerrymandering by entrenched incumbents are two of the greatest threats to the system.

As cynical about the process as I sometimes feel, I still try to give people the benefit of the doubt whatever their political objectives as long as they try to follow the rules. (The reason the Gore folks don’t get a pass is because I believe any fair-minded person watching the Florida mess blow-by-blow should have concluded that they would make up any rules they could think of, and change them from day to day if necessary, to engineer the result they wanted. That’s the reason the Court acted, and should have.)

In the state redistricting case, there is disagreement about the rules, I grant you. But this disagreement can and will be adjudicated in the proper forum. And even if this forum yields a party-line vote, that is no more proof of ill-intent than the verdict in Bush v. Gore was. It may well represent a predicable difference of opinion between the two parties about the nature of constitutional interpretation. One side generally respects the letter and original intent of the law. The other generally views constitutional or statutory interpretation as partly a process of adjusting the law to fit new times and situations.

North Carolinians should not let their high court, which they have themselves elected (and not in gerrymandered districts, by the way), be Borked by the deluded or the mercenary.