Whatever the three-judge Superior Court panel decides about Common Cause v. Lewis, a challenge to the constitutionality of North Carolina’s legislative districts, is relevant only if the plaintiffs win.
That’s because we would get new legislative maps for 2020 elections — drawn to the liking of the state Democratic Party and left-leaning groups who sued the Republican-led General Assembly. The results of last November’s election, and the replacement earlier this year of a Republican on the state Supreme Court with a Democrat, sealed the deal.
Common Cause’s Bob Phillips essentially admitted it as he testified July 15, the first day of the trial. Phillips said Common Cause thinks all maps drawn under the current system violate the state constitution. They deny fairness because the party that controls the General Assembly draws maps to ensure it wins more seats than justified by its percentage of the statewide vote.
Phillips and other plaintiffs say they object to the map-drawing process. That may well be, but they also clearly don’t like the electoral results. Phillips almost gave that away on the 15th. Opposing attorney Phil Strach asked Phillips why, if the system was irreparably flawed, and a lawsuit addressing gerrymandering was on the docket before the U.S. Supreme Court, plaintiffs waited until after November’s election to file this lawsuit.
Phillips didn’t offer much of an answer, other than to say timing wasn’t the issue.
But it was.
In November, Democrat Anita Earls defeated incumbent Justice Barbara Jackson in a state Supreme Court race. Democrats increased their court majority from 4-3 to 5-2. A few weeks later, Republican Chief Justice Mark Martin resigned from the court. Democratic Gov. Roy Cooper elevated a Democrat to chief justice and appointed another Democrat to fill her vacant seat.
Though Democrats had a court majority before the election, justices hadn’t routinely voted along partisan lines. But when Earls reached the court, hopes for continued nonpartisanship — especially in redistricting cases — took a major hit.
Earls spent her legal career as a litigator and advocate. She had no judicial experience. There’s nothing wrong with that if, once you don judicial robes, you end your advocacy and rule on the law and the constitution.
That’s asking a lot from Earls.
Since 2000, she led the voting rights project for the left-leaning Lawyers’ Committee for Civil Rights, directed advocacy for the controversial UNC Center for Civil Rights, and founded the activist Southern Coalition for Social Justice. The latter group sued the GOP-led General Assembly in earlier redistricting lawsuits.
Maybe Earls could consider any decision by the three-judge panel in Common Cause v. Lewis and rule in a way that sets aside her lifelong advocacy. That’s not a good bet.
At a minimum, she should recuse herself from this case, should it reach the court.
The three-judge panel’s ruling was harder to predict. We have every reason to believe the judges took their jobs seriously and performed with professionalism and decorum.
Indeed, the court may side with the General Assembly. The panel might say the legislature’s maps, regardless of partisan skew, were legal because the N.C. Constitution fails to say how much partisan sleight-of-hand is too much.
Such a ruling would align the three-judge panel with the legal reasoning behind a U.S. Supreme Court decision on North Carolina districts. It ruled in June that federal courts have no business interfering in redistricting plans so long as the maps stick to principles and guidelines stated in the U.S. Constitution. Redistricting is a political concern. The political branches of government — not the courts — should settle political disputes.
The federal justices got it right.
State courts can throw out election maps. Sometimes they should, as in the 2002 Stephenson case which said legislative districts should keep counties intact whenever possible, as the state constitution orders. In the current case, the Common Cause plaintiffs want state courts to devise and apply a new set of rules not currently spelled out in the state constitution.
For a couple of decades Common Cause has joined the John Locke Foundation, Carolina Journal’s publisher, in a coalition of groups trying to reform redistricting. We haven’t agreed on the details, but we’ve all emphasized taking politicians out of the process of drawing the maps.
In our view, the voters should decide on a constitutional amendment which sets clear criteria for drawing legislative districts. Voters should choose who represents them, not the other way around.
(A similar version of this editorial appears in the August 2019 print edition of Carolina Journal.)