Fundamental rights are on the line as GOP seeks U.S. Supreme Court intervention in state gerrymandering case

Four months after the N.C. General Assembly enacted a new alignment of the districts in which our state’s congressional representatives are chosen, the gavel has come down: That district map was so skewed to benefit the Republican Party that it violated voters’ rights under the state constitution.

So declared the state Supreme Court in its ruling of Feb. 14 that sent legislators back to their drawing board.

No, the ruling wasn’t unanimous. Three of the seven justices filed a strong dissent, arguing that partisan gerrymandering, whatever its practical effects on election outcomes, is not expressly barred under the constitution and thus is a political matter beyond the state courts’ proper reach.

Yet here’s the deal. Those three, led by Chief Justice Paul Newby, were outvoted. They lost. In fact they went 0 for 3, since the maps for state House and Senate districts that they had supported also were tossed.

What happened then? Working on a tight schedule laid down by the high court, legislators redrew the districts. The revisions were submitted to a panel of three trial judges for review.

The panel, upon the advice of specially appointed experts including two retired Supreme Court justices and a former president of the University of North Carolina system, gave thumbs up to the two new state legislative maps.

But the proposed congressional map didn’t make the grade. It was found still to be too sharply tilted in favor of Republican candidates – a tilt achieved by diluting the power of voters likely to back Democrats. So the trial judges substituted another version devised by the outside experts, as the Supreme Court had authorized them to do.

The final package of three new maps was submitted to the justices on Wednesday, Feb. 23. A request to block the congressional map pending appeal, filed by attorneys for the legislature’s redistricting chiefs, was denied. For Democrats looking to shave perhaps a couple of seats off the Republicans’ projected 10-4 edge in the state’s congressional delegation — as well as for advocates seeking to give all voters a fairer chance to elect their preferred candidates – it seemed like the clouds had parted and the sun was shining.

Perhaps they should have known better. The legislature’s Republican leaders figured they had an ace up their sleeve.

Their idea wasn’t to dispute the unfairness of maps that virtually guaranteed a lopsided advantage for one party even when the overall vote was split about evenly.

It wasn’t to continue disputing what the state constitution allowed or didn’t allow under its foundational Declaration of Rights.

It was to look instead to the U.S. Constitution and its assignment of responsibility for determining the “manner” of election for senators and representatives. That duty, according to Article I, Section IV, falls to each state’s legislature, subject to laws passed by Congress itself. The plain language says nothing about oversight by a state’s courts.

Among the thorns

So, here we go into a classic legal briar patch – a favorite hang-out of judicial conservatives such as our Chief Justice Newby and his soul mates among the U.S. Supreme Court’s Republican-appointed majority.

The Constitution must be read literally, they maintain. And if it says the manner of congressional elections are set by the various legislatures, with no spelled-out role for state judiciaries, then by golly it’s legislators themselves who get to draw district lines without second-guessing by “activist” liberal judges.

That’s the gist of the argument now being pressed by lawyers operating on behalf of House Speaker Tim Moore, Senate President Pro Tem Phil Berger and their respective redistricting leaders. They played their ace in the form of a Feb. 25 motion to the U.S. Supreme Court seeking to invalidate the congressional map approved by the state justices.

In line with Supreme Court procedure, the request for a stay went to Chief Justice John Roberts Jr., who handles such motions originating in our part of the country. It was Roberts who, in 2019 in another case from North Carolina, wrote a majority opinion saying that the federal courts had no constitutional grounds for regulating extreme partisan gerrymandering even though it “leads to results that reasonably seem unjust.”

Roberts said the remedy lay in state-by-state constitutional and statutory provisions to keep gerrymandering under control. Well, North Carolina’s Supreme Court now discerns rights embedded in our state constitution having that precise effect. But the argument that our court has overstepped its bounds is meant to kick that conclusion to the curb. Will the chief justice bite?

If he does, it would seem to undercut a pillar of our American system of checks and balances: the doctrine of judicial review, by which the courts determine what rights are embedded in constitutions and whether legislative acts do or don’t uphold those rights. North Carolina’s courts have operated under that principle since 1787, according to documents in the current case.

At the federal level, judicial review was established in the famous 1803 opinion in Marbury vs. Madison. Ever since, it has been the federal courts’ prerogative and duty to “say what the law is.” It’s notable that the U.S. Constitution with its Elections Clause, assigning responsibility for drawing congressional districts to state legislatures without mentioning any oversight by the courts, predates Marbury vs. Madison by 16 years. So that omission deserves to be seen in context and perhaps should come as no surprise.

The people’s will

The state Supreme Court’s majority, in the Feb. 14 opinion signed by Justice Robin Hudson, cited precedents it said established the court’s power to weigh the constitutionality of congressional redistricting. And when it undertook that task, it found that the legislature’s first attempt at drawing district maps violated several rights flowing from North Carolina’s constitution to its voters.

Discriminating against some voters because of their partisan affiliation, the court said, deprives them of a more-or-less equal ability to influence election outcomes – an ability to which they should be entitled under the constitution’s requirement that “all elections shall be free.” The court said Republican gerrymandering would breach disfavored voters’ rights to free speech, to assemble and to gain equal protection of the laws.

“A legislative body can only reflect the will of the people if it is elected from districts that provide one person’s vote with substantially the same power as every other person’s vote,” Hudson wrote.

“In North Carolina, a state without a citizen referendum process and where only a supermajority of the legislature can propose constitutional amendments, it is no answer to say that responsibility for addressing partisan gerrymandering is in the hands of the people, when they are represented by legislators who are able to entrench themselves by manipulating the very democratic process from which they derive their constitutional authority.

“Accordingly, the only way that partisan gerrymandering can be addressed is through the courts, the branch which has been tasked with authoritatively interpreting and enforcing the North Carolina Constitution.”

The Republican defense? Basically, it boils down to this, as paraphrased: “We’ll decide which rules we have to follow when we draw voting districts, not you folks in your black robes.”

Risks to the system

The stakes in all the current legal jockeying are immense. Fair competition among candidates with different views and priorities is what makes our democratic system work. Suppressing that competition fuels political extremism, voter apathy, failures of accountability and policy choices heedless of the broad public interest. These are reasons why the N.C. Council of Churches is among those favoring reform of the redistricting process as, hopefully, a lasting gerrymandering antidote.

Something that remains an open question as the U.S. Supreme Court considers whether to put the congressional district map on hold is how that might affect the election schedule.

Already, the state’s primary elections have been delayed until May 17. Candidate filing is under way, with decisions about whether and where to run having to be made while district boundaries were shifted. Could there be another postponement while maps were redrawn yet again? Would the sort of confusion that the high court has tried to minimize become intolerable?

Our Supreme Court has articulated a powerful critique of the harms that extreme partisan gerrymandering can cause as it infringes on the voting rights of a broad swath of North Carolinians. It has explained why it should be allowed to rein in the legislature’s use of that gerrymandering to perpetuate one-party rule. Now it’s up to the high court in Washington to respect those efforts – mindful, as Chief Justice Roberts said, that to do otherwise could lead to “results that reasonably seem unjust.”

Steve Ford, former editorial page editor at Raleigh’s News & Observer, wrote this commentary for the North Carolina Council of Churches, which was first to publish it.