Opinion: Daily Journal

Careful About Legitimacy Claims

Is the state government of North Carolina illegitimate? Based on the volume of emails and Facebook messages I’ve received lately, liberal politicians and organizations are shopping the idea that the Republican-led legislature and McCrory administration lack the moral authority to enact conservative policies because they derive their power only through an aggressive partisan gerrymander.

Such arguments are a good example of the old rule that having a little bit of knowledge of a subject may well be enough to get you into trouble — but not enough to get you out of it.

Sure, there was a partisan redistricting in 2011. The Republicans freely admit that they took their interests into account in drawing legislative and congressional districts, just as their Democratic predecessors did in 1961, 1971, 1981, 1991, and 2001. It is also true that many longtime Republican lawmakers have favored redistricting reform that would constrain gerrymandering by a combination of neutral rules and a nonpartisan process for applying them. Now that they are in a position to do so, these lawmakers ought to place consistency and principle over short-term political gain and approve redistricting reform, which I have long favored.

Nevertheless, to make a leap from criticizing gerrymandering to questioning the very legitimacy of North Carolina’s elected state government is neither necessary or nor helpful to advancing the cause of redistricting reform. It is also a self-defeating argument to make if you are a North Carolina Democrat.

For one thing, Pat McCrory was elected statewide in 2012 by a wide margin. Gerrymandering had nothing to do with his victory. For another thing, Republicans really did win a majority of the votes North Carolinians cast for the state legislature, even if the resulting margins were exaggerated by favorable district maps.

The irony of Democratic claims about illegitimacy is that the logic of those claims better fits past Democratic governments than the current Republican one. It is no exaggeration to say that some of the most important legislation of the past decade happened because Democrats used both gerrymandering and criminal action to stay in power against the will of North Carolina voters, most of whom had cast their votes for Republican legislative candidates but got stuck with Democrat-run legislatures anyway.

Let’s look at the numbers. Until the 1980s, Democrats enjoyed huge majorities in the N.C. House and Senate. They also received the lion’s share of statewide votes cast for legislature during the period, but their control of the redistricting process accentuated the effect. One common way to demonstrate this is to compare the “popular vote” for state legislature with the share of seats won. For example, in 1980 Democrats won 67 percent of statewide votes for House candidates but secured 80 percent of the seats in the House. That 13 percentage-point skew was actually the average pro-Democratic House skew during the 1960s and 1970s. The average pro-Democratic Senate skew was 17 percent in the 1960s, 15 percent in the 1970s, 18 percent in the 1980s, and 15 percent in the 1990s.

Republicans resented this, of course. After Ronald Reagan was elected in 1980, GOP activists began to look for ways to bring redistricting challenges before the Justice Department in states or localities subject to Section 5 of the Voting Rights Act. They often worked together, or at least along a parallel track, with African-American Democrats who saw their political interests submerged in Democratic gerrymandering that distributed black voters across multiple legislative districts to make them easier for (usually white) Democrats to win.

As these cases proceeded through the federal courts in the 1980s and 1990s, legislatures were forced to draw districts under different rules that benefited both black Democrats and Republicans. In North Carolina, the effects were first evident in the House of Representatives, which has more seats and thus reflects new demographic and legal trends more quickly. During the 1980s, the pro-Democratic skew in House races fell to an average of 7 percentage points. During the 1990s, the Democratic skew averaged only 2 percentage points, with Republicans actually winning both popular vote and legislative majorities in 1994 and 1996. (In 2000, however, Republicans won 51.5 percent of the vote in House races but only 58 of the 120 seats. Remember that.)

After the 2000 census, North Carolina Democrats used new voter data and increasingly sophisticated computer technology to attempt to engineer an old-school gerrymander in 2001. At this point state Republicans played a new card: redistricting litigation in state court rather than federal court. Citing the state constitution’s requirement that districts respect county lines, the GOP litigants won at trial and at the state supreme court. No longer would the Senate map skew outcomes by 15 percentage points. Democrats still managed to tilt the legislative districts a few points in their favor, an average of four in the House and six in the Senate, during the 2000s.

Here’s where today’s Democratic arguments about legitimacy run into major trouble. During these election cycles, the two parties were intensely competitive. Although federal and state courts had constrained Democratic gerrymandering, they hadn’t ended it altogether. When combined with close elections, the results were controversial. In both 2002 and 2004, Republicans received a majority of votes for the House and Senate – but ended up controlling neither chamber. In the 2002 Senate elections, for example, Republicans won 52 percent of the statewide vote but only 23 of the 50 seats.

Gerrymandering was the primary cause. But in the 2002 House elections, Republican even won a 61-59 majority of the seats on Election Day. Democrat Jim Black kept the job as Speaker of the House for the 2003-04 session by bribing a Republican lawmaker to switch parties, creating a 60-60 tie, and then picking off a few GOP dissidents to keep power mostly in Democratic hands.

If it is objectionable to use gerrymandering to pad a political party’s legislative majority, surely it is worse to use gerrymandering (or criminal behavior, in Black’s case) to put the legislature in the hands of the party that got fewer statewide votes. That’s true regardless of which party is the beneficiary.

But if you think such a result not just objectionable but illegitimate, making any legislation enacted by such a legislature illegitimate, that would make the following policies illegitimate: More at Four (now North Carolina Pre-K), Learn and Earn, the Clean Smokestack Act, the state lottery, early voting, and all the tax hikes, class-size reductions, public-employee pay raises, and other policies changes contained in every state budget from 2001 to 2006.

Should we just nullify all these illegitimate laws by unanimous consent?

Hood is president of the John Locke Foundation.