RALEIGH — North Carolina has of late seen its political class come down with a severe and persistent case of separation anxiety. Only this version of the malady doesn’t involve a child who must leave his parent. It concerns a certain group of tempermental children who refuse to stay on their separate, designated side of the room.
In an earlier column, I wrote about Senate leader Marc Basnight’s propensity to act as though he was a member of the executive branch — calling the shots in job-recruitment policy and attempting to supervise state agencies. More problematic, however, has been attempts by Basnight, House Speaker Jim Black, Co-Speaker Richard Morgan, and other lawmakers to intrude into the legal territory that belongs to the separate and co-equal judicial branch of state government.
When talking about North Carolina’s ongoing ordeal about legislative redistricting, it has usually been the state’ judiciary who have been accused of violating the constitutional separation of powers. When the original Stephenson v. Bartlett case reached the state Supreme Court, Chief Justice Bev Lake and a solid majority ruled that the state legislature had violated the letter and spirit of the constitution, that the intent of the constitution’s “whole-county provision” governing political districts had to be carried out as much as possible given voting-rights considerations, and that a coherent set of rules provided by the court would guide lawmakers in complying with their responsibilities.
Legislative leaders and their political and media defenders were outraged, charging the Republican-majority court with acting for partisan gain and for encroaching on the General Assembly’s role in drawing districts. I was critical in some respects myself, arguing that the court came up with a good set of redistricting criteria — relying on concepts such as compactness and county clusters borrowed from other states with significant and valuable experience in drawing neutral maps — but that it would be have been far better for lawmakers and voters to write these rules into the constitution formally rather than having them “interpreted” by judges.
The substance of the charge against Lake and his colleagues — that they had no business “second-guessing” the General Assembly on redistricting — is just nonsense. The very separation of powers that gives elected lawmakers the power to draw political boundaries gives elected judges the power to rule on the constitutionality of those boundaries. Certainly judges shouldn’t act as legislators. The extreme remedy of judicially ordered districts should be a last resort after repeated entreaties to the legislative branch have been rebuffed (which is where I think we are now). But to insist that the legislature and the legislature alone gets to decide whether the state constitution’s strictures apply to their political handiwork is ridiculous.
Although it might have seemed impossible, the General Assembly has now committed what is arguably the worst offense so far to the constitutional separation of powers by including in its latest redistricting legislation, enacted in November, a provision to move all new and pending redistricting litigation to a new court of its creation in Wake County. As the Stephenson plaintiffs have properly argued in a brief filed Tuesday with the Supreme Court, this constitutes a gross and unprecedented encroachment on the judicial branch’s powers and prerogatives. If allowed to stand, this brazen act would seem to imply that any time legislators believe that a lawsuit against the state — or against a private individual with powerful political friends, now that I think about it — isn’t going well, they can pass a law to shift it to a different and possibly more friendly court of their own mischievous construction.
Whatever the merits of the redistricting claims of 2004, surely people of good faith, representing every political party and every political persuasion, can agree that the General Assembly does not have and should not claim such sweeping and dangerous power.
I know, I know: “Don’t be so naive, and don’t call me Shirley.”
Hood is president of the John Locke Foundation and publisher of Carolina Journal.