In advance of this week’s arguments before the state Supreme Court, attorneys for Republicans at the N.C. General Assembly have filed their brief with the court in support of upholding recently enacted legislative and congressional districting maps as constitutional.
Democrat-aligned groups are suing over the maps. They ask the court to find for the first time that the N.C. Constitution forbids “extreme partisan gerrymandering,” even though nothing within the state’s governing document says so. The brief on behalf of the GOP-run General Assembly runs 211 pages.
Here are some of highlights of the brief submitted for GOP lawmakers by attorney Phillip Strach:
“Drawing electoral boundaries is political because of what it is, not because of who does it. All over the world, and throughout history, political lines have been drawn and maintained for predominantly political reasons. The boundaries of nations, states, political subdivisions, school districts, and utility districts exist because someone made a political determination that a line should lie in one place, not another. In the best circumstances, the lines are the result of political negotiation; in the worst, war.”
“Plaintiffs invite this Court to sit in review of the discretional choices made by a political body in one of the most divisive political processes confronting any political body in American political experience. Plaintiffs ask this Court to cease acting as a court of law and begin acting as a political body. But the North Carolina Constitution has no standard for distinguishing good political choices from bad ones. To draw such a distinction, the Court would have no choice but to legislate one. That would be unfounded not only because the North Carolina Constitution expressly denies this Court any legislative power but also because the North Carolina Constitution expressly commands the General Assembly to redistrict.”
Legislative leaders urge the Supreme Court to affirm the unanimous bipartisan ruling from a three-judge Superior Court panel. That panel upheld the challenged maps.
“The Panel rejected Plaintiffs-Appellants’ partisan gerrymandering claims because they were neither justiciable nor cognizable under the North Carolina Constitution. The Panel concluded that Plaintiffs-Appellants’ partisan gerrymandering claims presented political questions and, therefore, did not present a justiciable controversy for two independent reasons. First, ‘satisfactory and manageable criteria or standards do not exist for judicial determination of’ how much partisanship is too much in our politics. Such standards are necessary because ‘[w]ith uncertain limits’ the court ‘would risk assuming political, not legal, responsibility for a process that often produces ill will and distrust.’”
“It would make no sense to read the Constitution to delegate the General Assembly exclusive redistricting authority but to deny it the power to exercise political discretion in the process. Because redistricting is ‘root-and-branch a matter of politics,’ the power to redistrict necessarily entails discretion to harbor political ‘intent’ and consider political ‘effect.’”
Republican legislators reference Stephenson v. Bartlett, a 2002 state Supreme Court opinion that set redistricting standards still in place today.
“Plaintiffs-Appellants would nonsensically rewrite Stephenson to say as follows: ‘The General Assembly may consider partisan advantage and incumbency protection in the application of its discretionary redistricting decisions, but it must do so in conformity with the State Constitution, which forbids considering partisan advantage and incumbency protection.’”
“What is remarkable is that without amending a single word of the Constitution or even a passing reference to a statute, Plaintiffs-Appellants argue that politics in redistricting has always been forbidden. This would treat every redistricting conducted by the General Assembly in history as unconstitutional. Do they expect this Court to tell the generations of Republican voters who purportedly suffered constitutional violations at the hands of Democratic legislators that their delayed justice is now served — through a court-drawn redistricting plan designed to continue Democratic hegemony over redistricting?”
“What could the General Assembly do differently next time? Plaintiffs-Appellants have no answer — because they do not want to give an answer. They want a new Constitution, they want it now, and they want this Court to usurp the authority to draw districts based upon newly discovered and unprecedented standards.”
“There is no lawful possibility for this Court to proceed to hire a special master and direct remedial redistricting processes itself. The State Constitution forecloses this possibility in providing, in no uncertain terms, that ‘[t]he General Assembly . . . shall revise the . . . districts.” … The Court’s obligation to direct any remedial process to the General Assembly in the first instance is not a self-imposed prudential restraint this Court may discard within its discretion. This obligation, instead, flows from the constitutional text and non-negotiable limits on this Court’s authority. Any other course of action would declare a constitutional crisis.”