Opinion: The Woodshed

Only an ‘extreme partisan’ Supreme Court would rule against N.C. election maps

Carolina Journal photo by Maya Reagan
Carolina Journal photo by Maya Reagan

The North Carolina Constitution is silent on how political the legislature can be in drawing districts.

Period.

End of story.

I know this because I can read the North Carolina Constitution.

On receiving the latest redistricting case from the lower courts, if the Democrat-controlled state Supreme Court declares district maps drawn by Republicans to be unconstitutional extreme partisan gerrymanders, they will do so because they are extremely partisan justices doing the bidding of the Democratic Party. They will be stealing political power for Democrats who were unable to win at the ballot box.

I also know this because it is the only logical conclusion of what the General Assembly proposed, passed, and sent to voters in 1970.

The North Carolina State Bar began studying and drafting a new Constitution in 1967. The main goal was to organize our Constitution and remove unconstitutional sections, along with modernizing language and syntax. The rewrite of the Constitution generated significant debate and developed consensus within the General Assembly. Legislators approved the new Constitution in 1969 with only one negative vote in seven roll-call votes. In November 1970, the proposed Constitution of 1971 was approved by voters, 61% to 39%

Remember that stuff about three co-equal branches of government you learned on “School House Rock”? That deals with the federal government. The General Assembly passed, and voters approved, a state Constitution that made the General Assembly BY FAR the strongest branch of North Carolina’s government.

Arguably no state, dating back to colonial times, has loathed a strong executive and executive power more than North Carolina. At one time, North Carolina’s governor was elected directly by the General Assembly for one year. The position was so irrelevant it was simply traded by the eastern and western parts of North Carolina.

The idea that the General Assembly debated and passed a Constitution that limited their ability to draw election district lines is a joke. It is impossible. When voters approved the amendment giving N.C. governors veto power in 1996, the General Assembly made sure that it did not apply to redistricting.

Carolina Journal reported on the plaintiff’s arguments in the redistricting case here and here.

N.C. State political science professor Andy Taylor testified that nothing in North Carolina’s state constitutional history indicates provisions protecting the individual rights of free elections, equal protection, and free speech/assembly were intended to restrict the ability of the General Assembly to create district lines.

Taylor testified that “free election” does not mean one without burdens on the right to vote. A given districting system is “not generally understood as essential to the meaning of free elections.”

In examining the claim that partisan-leaning maps violate the state’s equal protection clause, Taylor testified that an election is generally regarded as “equal” so long as “each person has one vote to elect one legislator who has one vote in the legislature.”  Taylor contended that equal outcomes are not generally accepted as a necessary facet of equal elections. Administering such a rule would seem to be unworkable, and voting is not a feature of party participation but of individual participation as a citizen.

Taylor argued there is no reliable way to know, as a matter of fact, whether a redistricting plan produces an unfair partisan effect.

Republicans are likely to obtain a temporary victory by the lower court panel, which has a 2-1 GOP majority.

Then the case will go directly to the Democrat-controlled state Supreme Court. The high court ordered that the case bypass the N.C. Court of Appeals, where Republicans outnumber Democrats, 10-5.

To overturn the GOP-crafted maps, the N.C. Supreme Court would have to adopt many of the following extreme positions:

  • The N.C. Constitution allows for some partisan considerations and outcomes but specifically prohibits extreme partisanship without ever saying so.
  • The N.C. Constitution provides the state Supreme Court the power to create a “Goldilocks standard” of measuring when the inherently political process of map drawing is too political, and this empowers the court to override the General Assembly’s constitutionally enumerated powers of map drawing.
  • The state Supreme Court would have to eviscerate the political-question doctrine that has controlled partisan districting cases for centuries in state and federal courts. The political-question doctrine refers to disputes that courts determine are best resolved by the politically accountable branches of government.
  • The state Supreme Court would have to arrogantly adopt the position that its justices are wiser and more capable than the U.S. Supreme Court in inventing its “Goldilocks standard.” The U.S. Supreme Court said doing so was impossible.

Going further with these specific maps in question, the state Supreme Court would have to adopt the following extreme positions:

  • The Court would have to accept the plaintiffs’ argument that the challenged maps produced extreme partisan outliers that are impermissible under the state Constitution, and the results alone are proof of extreme partisan intent.  This would set a horrific precedent that the results by themselves are proof of intent, despite no evidence that the legislature used partisan political data in creating the maps.
  • The court would have to decide that some sort of proportional representation based on statewide vote totals is required under the state Constitution, despite there being no part of the constitution or state/federal laws that require that outcome. Requiring some kind of modified proportional representation would overturn significant case law in North Carolina. That outcome has time and time again been rejected by the federal courts.
  • The court would have to label the enacted congressional map that COULD and MIGHT elect 10 Republicans as an extreme partisan outlier in violation of the state constitution despite the fact the plaintiff’s lead witness produced computer-generated “fair” redistricting maps that would produce a 9-5 Republican majority within North Carolina’s congressional delegation 73% of the time. In another 9% of the “fair map” simulations, Republicans would gain a 10-4 edge.
  • In comparison, the Democrat experts’ computer simulations would produce an even 7-7 map just 1.3% of the time, although that is what plaintiff’s are asking the court to force on the General Assembly and the citizens of North Carolina. The court would have to find a possible outcome of 10 GOP congressional seats is an extreme partisan outlier in violation of the constitution despite the fact 82% of the maps liberal challengers created through computer programs resulted in nine or 10 GOP victories.
  • Similarly, the court would have to find that the difference in four out of 120 N.C. House seats (3.33%) and three out of 50 Senate seats (6%) from the plaintiffs’ experts’ “perfect” and “fair” maps as compared to the enacted maps are unconstitutional extreme partisan gerrymanders.

It is important to note that N.C. law requires that the court identify any district it finds illegal and explain specifically to the General Assembly what it must do to fix that district. N.C. law does not allow and there is no constitutional basis to find an overall map unconstitutional in the aggregate without finding specific districts flawed.

Since many districts are drawn by constitutionally required county groupings and are basically unalterable by the General Assembly, the court would have to find:

  • All of Pitt County must be represented by Democrats in the state House. Instead of one seat for the GOP and one for Democrats, the court would have to mandate that both Pitt seats be drawn for Democrats, by splitting Greenville down the middle.
  • That state House districts in Cumberland and Guilford counties that are nearly identical to districts drawn by the courts’ special master just a few years ago are unconstitutional extreme partisan gerrymanders.
  • That all of Buncombe County must be represented by Democrats in the state House. Under the enacted maps, Democrats are nearly certain to win two of three seats, but plaintiffs say Republicans should have no opportunity to win even one seat in North Carolina’s most populous mountain county.
  • That all 10 N.C. Senate seats (20%) wholly contained in Wake and Mecklenburg Counties must be drawn to guarantee Democratic victories. In the GOP-enacted map, all 10 seats heavily favor Democrats or lean to Democrats. Not one single seat leans to the GOP. However, one swing seat in each county could in theory elect a GOP member in a red wave year. Plaintiffs argue this is extreme partisan gerrymandering and that Democrats must be guaranteed all 10 seats.
  • Similarly, Republicans currently control just two of 23 House seats in Mecklenburg and Wake counties. In the new maps, 26 House seats are in Mecklenburg and Wake. In finding an extreme partisan gerrymander, the court would have to support the plaintiffs’ position that Republicans should have virtually ZERO opportunity to win any of these 26 seats, a stunningly radical position that NONE of the more than 2.2 million residents in North Carolina’s two largest counties should have a chance to elect a Republican member to the General Assembly.
  • That a Democratic gerrymander is required in N.C. Senate Districts 1 or 2. Combined these two GOP-leaning seats voted for Donald Trump in 2020 with 54% of the vote, but Democrats say one of these seats must be drawn for them.
  • And finally, in finding the legislature engaged in unconstitutional partisan gerrymandering, the court would be adopting a standard that not only these maps fail, but that every map enacted since North Carolina’s founding would have also failed.

If the state Supreme Court makes all of those findings, who exactly would be extreme?