RALEIGH – For years, governors and leaders of the General Assembly have often viewed the North Carolina Supreme Court with impatience, if not actual disdain. Almost every time the Court has ruled on a major policy matter or electoral issue, the other two branches of government have sought to evade or appeal the decision. Almost every time, they’ve failed.
Add one more occasion to the list, now that the U.S. Supreme Court has upheld the state’s high court in a Pender County redistricting case.
The background on the Pender dispute is a bit complicated, but the underlying principle isn’t. When drawing district lines for congressional or legislative elections, the General Assembly has to pay attention to both state and federal law. The state law, as written in the state constitution and interpreted by a series of N.C. Supreme Court decisions earlier this decade, prevents lawmakers from drawing districts that split counties unless required to by federal law.
What are those federal requirements? The one-person, one-vote rule would be an example. Another is a provision of the Voting Rights Act (VRA) that applies to a number of North Carolina counties.
When Congress enacted the VRA in 1965, one of the local abuses of power it sought it address was the systematic dilution of black political power. Among other sins, Southern lawmakers had been rigging electoral districts so that African-American voters would help reelect white incumbents but could not constitute a large-enough bloc to elect black representatives if they so desired.
The VRA was intended to end this practice, and subsequent amendments and federal court decisions have clarified how and when this federal preemption applies. Until recently, legislatures in North Carolina and other affected states understood that if they could draw a district with a majority-black voting population, the VRA required that they do so. As these majority-black districts proliferated, so did black representation in legislative and congressional seats.
However, because black voters tended to vote overwhelmingly for Democratic candidates, one effect of complying with the VRA as originally interpreted was that as legislative leaders could no longer chop up the black electorate into pieces to include in several contiguous districts, they could no longer be used to tilt those districts Democratic. Some of the surrounding districts became competitive or Republican-leaning.
As a way of blocking GOP gains, some Democratic leaders then came up with the idea of “crossover districts” where minority voters didn’t form a majority but existed in large enough numbers to ensure the election they wanted – presumably a Democrat. This strategy sought to turn the VRA into a federal mandate for partisan gerrymandering. It was a lawsuit waiting to happen.
It did, in Pender County. In 2004, current and former county commissioners challenged the General Assembly’s latest district map because it split Pender between two House districts in contravention of state law. The legislature’s response was to peddle this silly “crossover district” argument, which the N.C. Supreme Court properly rejected in 2007. (Unfortunately, the Court declined to enforce its decision with new districts for the 2008 elections, exhibiting undue deference to a legislative branch that has repeatedly violated the state constitution on redistricting.)
Now that the U.S. Supremes have also struck down the state’s defense as flawed in concept and unjust in practice, the legislature must redraw before the 2010 elections. The open question is how far it must go to comply. Can the legislature redraw only the Pender-area districts that provoked the lawsuit, or must it apply the same standard to other districts in the state that were shaped along similar lines? Not surprisingly, Democratic leaders think it’s the former and Republican leaders think it’s the latter.
Here’s another question: Does the Voting Rights Act in its original form still have relevance in a country where both the Democratic president and national GOP chairman are of African descent and minority candidates routinely win elections? Perhaps a rewrite is warranted. But that would require an act of Congress, not just the whim of a few North Carolina legislators trying to win additional seats for their party. And such a rewrite would still have to be respectful of federal and state constitutions.
Respect for constitutional principle would have ended the Pender case in 2007. Instead, North Carolina’s legislative and executive branches appealed the judicial branch’s decision – and lost. Again.
Hood is president of the John Locke Foundation