Opinion: Daily Journal

Constitutional law versus constitutional language

Read the latest court opinion in North Carolina’s ongoing fight over electoral redistricting, and you might sense a growing disconnect between the world governed by constitutional law and the world most people understand.

This column does not aim to chastise the opinion’s author, U.S. Appeals Court Judge James Wynn. He serves only as the messenger. It’s the message that rankles.

First, some background information: Democrats remain unhappy that Republicans broke through the Democratic Party’s long stranglehold over the N.C. General Assembly in 2010. Elections conducted that year under maps drawn by Democrats returned a GOP supermajority in the state Senate and GOP dominance (four seats shy of a supermajority) in the House.

Democrats don’t like the fact that Republicans adopted the Democrats’ own tools, including partisan electoral redistricting, to help maintain legislative control. A series of lawsuits from Democrats and their allies — five, at last count — targeted Republicans’ redistricting methods.

(The John Locke Foundation is no fan of the partisan mapmaking process employed by both Democrats and Republicans. The organization has advocated redistricting reform for decades.)

Wynn’s opinion addresses the two most recent suits. Both take aim at the congressional election map North Carolina used in 2016. A federal court struck down the previous map, used for 2012 and 2014 elections, as unconstitutional because of racial gerrymandering. So Republican lawmakers eschewed race as a factor when drawing the 2016 map. Instead lawmakers drew a map designed specifically to elect a congressional delegation of 10 Republicans and three Democrats.

The U.S. Supreme Court never has tossed an election map because of partisan factors, though justices have opened the door to that possibility. The high court is scheduled to hear arguments next month in a Wisconsin case addressing the issue.

Rather than waiting for the Supreme Court to add more clarity to partisan gerrymandering disputes, plaintiffs in both of North Carolina’s most recent redistricting suits want to move forward with their own complaints … about partisan gerrymandering.

Wynn and his colleagues have agreed. The opinion issued Friday helped explain why.

Democrats seek any means possible to limit Republicans’ electoral advantage. Unable to mirror their opponents’ 2010 electoral success story, Democrats have seen a 31-19 deficit in the N.C. Senate extended to 35-15 over the past three election cycles, while they’ve been unable to secure more than 46 of the 120 seats in the state House.

If Democrats must rely on courts rather than voters to boost their fortunes, it should surprise no one that they are putting forward any argument that might have the remote chance of convincing a judge.

Wynn summarizes the key arguments.

Collectively, Plaintiffs allege that the Plan violates four constitutional provisions:

1. The Equal Protection Clause of the Fourteenth Amendment, by diluting the electoral strength of individuals who voted against Republican candidates;

2. The First Amendment, by burdening and retaliating against individuals who voted against Republican candidates on the basis of their political beliefs and association;

3. Article I, section 2, which provides that members of the House of Representatives will be chosen “by the People of the several States,” by usurping the right of the voters to select their preferred candidates for Congress; and

4. Article I, section 4, which provides that “the times, places, and manner of holding elections of … Representatives, shall be prescribed in each State by the Legislature thereof.”

The prospect that any of these claims might succeed demonstrates a key flaw in “constitutional law,” if one defines the term as judicial interpretation of the Constitution. That judge-determined law often strays from adhering to a Constitution that’s recognizable to an average, reasonable person.

The 14th Amendment says no state can “deny to any person within its jurisdiction the equal protection of the laws.” Designed to ensure that recently freed slaves would face the same legal standards as whites after the Civil War, the amendment contains nothing to suggest that a person choosing to vote “against” a political candidate has any right to “electoral strength.”

Nor does the First Amendment’s protections against laws abridging free speech or association say anything about the impact of casting votes. You’ll search in vain for a sign within that amendment’s 45 words that it has anything to do with “burdens” or “retaliation.”

Article I, section 2 does indeed specify that people within the states choose members of the U.S. House of Representatives “every second Year.” North Carolina has held elections for Congress every two years, including 2016. Nothing linked to the disputed congressional election map has blocked people from voting in those elections.

Wynn’s quotation of Article I, section 4 highlights the provision’s key point: State legislators dictate most aspects of the electoral process for the U.S. House of Representatives.

Election law experts reading the last four paragraphs might conclude, “Kokai, you ignorant fool! You have failed to account for the 1980 case of Smith v. Jones, which spelled out blah, blah, blah, and the 1993 ruling in Howard v. Fine, which explained why yadda, yadda, yadda.”

To which I respond: You’ve just made my point.

To suggest that North Carolina’s 2016 congressional election map violates any of these constitutional provisions, one must look far beyond the basic language of constitutional text. One must enter the mystifying labyrinth of election law.

If a constitutional provision that spells out the legislature’s role in conducting elections can be used to help throw out the legislature’s role in conducting elections, something strange is afoot. Yet Wynn cites federal court cases from 1986 and 1995 that might lead to that very outcome.

No one knows how courts will resolve these latest redistricting suits. Of greater concern to this observer: Only the most expert election law specialists might end up understanding the resolution.

Mitch Kokai is senior political analyst for the John Locke Foundation.