RALEIGH – In a bracing blast from the past, the North Carolina Supreme Court has just ordered the General Assembly to redraw N.C. House districts. But in a major change from an earlier period of redistricting litigation, the Court majority apparently decided that electoral justice delayed is not justice denied.
The latest case, Pender County v. Bartlett, involves the existence of two House districts in Pender County. The county originally sued the state to enforce the constitution’s whole-county provision, which forbids the division of counties when drawing legislative districts. After an initial adverse ruling, the Pender commission voted to end the lawsuit, but some current and former commissioners decided to continue the litigation as private citizens.
They made the right call. In a 4-2 decision (one justice, Democrat Robin Hudson, did not participate), the Court majority found that because Pender’s population fell within the range required to accommodate a single House district, the constitution requires that it be a single House district. Currently, the county is split between two districts: House 16, represented by Republican Carolyn Justice of Pender, and House 18, represented by Democrat Thomas Wright of New Hanover.
The background of the case is essential not only to understanding the legal issues in dispute but also to explaining why I am so surprised that the Court, having ruled that House 18 should go away, nevertheless allowed the legislature to wait until 2009 to redraw the map. So here’s a brief synopsis.
In 2001, the General Assembly convened its regular session and, armed with the new census numbers, reapportioned and redrew House and Senate districts. By every sensible account, the result was a heavily Democratic gerrymander. A set of Republican plaintiffs sued to overturn the maps, arguing that among other things legislative leaders had violated the state constitution’s whole-county provision by dividing a large number of counties to pack Republican voters into a relatively few districts to maximize Democratic-leaning ones.
The state’s main defense was that the whole-county provision no longer had any legal force. The passage of the federal Voting Rights Act, said the Attorney General’s office, had superseded the state constitution. Because in VRA-covered communities the requirement not to dilute minority voting strength clearly overrode county-line considerations, these considerations no longer existed. They had been nuked by proximity to the federal VRA.
The North Carolina Supreme Court disagreed. The majority found that the whole-county provision still clearly applied in the parts of North Carolina not subject to the VRA. Even within VRA communities, it argued that lawmakers had to harmonize VRA rules with respecting state constitutional rules if possible. Furthermore, the Court required that the legislature harmonize the federal “one-person-one-vote” rule, which in practice creates a range of permissible district populations, with the intent of the whole-county provision by creating multi-county clusters within which roughly proportional districts could be drawn.
The Court handed down its decision in this original case, Stephenson v. Bartlett, in April 2002. It ordered the state legislature to redraw the districts. But the result was still an unconstitutional gerrymander, so the trial judge, Knox Jenkins of Johnston County, had interim maps drawn up for the 2002 election.
(That’s when the Republicans won the House, only to see Jim Black bribe Michael Decker to switch parties and then form a co-speakership arrangement to keep Black and the Democratic minority in power. Perhaps you remember that part of the story.)
In 2003, the Supreme Court affirmed Jenkins’ earlier rulings and ordered the General Assembly to draw yet another set of maps (that would be the fourth). Well-crafted by aides to Black and Senate leader Marc Basnight, these maps passed constitutional muster – due in part to a change of venue – while retaining a Democratic tilt. The House map also split Pender, however, which led to the latest litigation.
The new decision has two important statewide ramifications. First, redrawing the House map to accommodate a single Pender district will necessarily affect surrounding districts. It’s possible, though not assured, that their partisan makeup may noticeably shift.
Second, by rejecting the state’s defense of House 18, the Court has sent a clear signal that at least in the context of state legislative districts, the Voting Rights Act is not an invitation to maximize “minority influence” districts that don’t have a majority of black voters but have a fair likelihood of electing black (Democratic) candidates. Instead, the more-traditional interpretation applies – that the VRA prevents states from diluting minority voting strength.
I remain puzzled, though. If Pender voters are being denied their constitutional right to a single-county district, why does the Supreme Court consider it permissible to allow the 2008 election to proceed with the current map? We are hardly up against a deadline here. There is plenty of time for the General Assembly to rectify the situation before candidate filing begins. Instead, the legislature will draw the House map in 2009, for one election only (2010), and then everything will have to be redrawn anyway in 2011.
Doesn’t make sense.
Hood is president of the John Locke Foundation.