Opinion: Daily Journal

How to Win & Lose Simultaneously

Republican plaintiffs in North Carolina’s ongoing conflict over legislative redistricting lost a battle in court Thursday.

Superior Court Judge Knox Jenkins of Johnston County rejected the plaintiffs’ motion to order Democratic leaders of the General Assembly (plus Richard Morgan) to convene soon to prepare new House and Senate maps. Jenkins — you know, that “Republican” judge that is clearly in the Republicans’ pocket — stated in his decision that it was impossible for the plaintiffs to establish that the legislature’s impasse over redistricting justified judicial intervention, since the legislature hadn’t met yet to draw maps. It would be “speculative,” he said, to grant such a motion.

So why were the plaintiffs celebrating the decision?

Because, as I wrote about in a previous column, their goal was evidently never to invoke judicial intervention at this stage. Rather, the GOP plaintiffs were responding to Democratic attempts during the recently concluded session to move the venue for future redistricting litigation to Wake County, where they apparently expected to draw a more sympathetic judge. By filing an amended motion with Jenkins now, the Republicans sought to ensure that he retained the authority to enforce his previous orders and the N.C. Supreme Court’s decision on how to implement constitutional rules on redistricting.

They also sought Jenkins’ involvement in a related matter — the issue of residency requirements. The Democratic strategy (plus Morgan’s) appears to be to wait until November to draw districts, thus attempting to prevent any Republican lawmakers they punish with adverse redistricting from moving into another district to seek re-election. The state constitution requires that candidates live in their districts for at least one year before being able to run from them. Among other claims, the plaintiffs are arguing — and I agree — that this rule can’t be enforced if the districts don’t exist for at least a year, a timetable that won’t be met under the schedule legislative leaders are currently following.

So when you look at the actual content of Jenkins’ ruling, it becomes clear why the plaintiffs and their attorneys seem satisfied with the result. First, the judge declared that the case “shall remain open for further orders of the Court.” That means any legislative attempt to rip jurisdiction away from him will likely fail. Second, he reserved the right to re-examine the residency requirement should a challenge, along the lines I suggested above, be brought back to him at a later date.

My advice is to ignore whatever political spin you hear about this case and keep your eye on the ball. What matters is what gets fashioned during the special legislative session in November. If Democrats (plus Morgan) deviate from the Supreme Court’s firm guidelines for neutral redistricting — that is, for districts that respect county lines and use compact groupings of counties when necessary — in order to engineer a partisan or political outcome, then the case will surely come back to Jenkins, and head back up to the higher courts from there. If, on the other hand, lawmakers decide to stop gaming the system and simply redraw the maps along reasonable and constitutional lines, the plaintiffs won’t have any justification for seeking further judicial relief.

Yes, Democrats (and Morgan) are risking an impasse by waiting so long and, one hears, continue to scheme. But Jenkins properly ruled Thursday that the impasse is not yet evident.

The operable word is “yet.”

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