A Special Report -- The Supreme Court Ruling
Ed Stiles, Wilson GOP Secretary
Just to catch everyone up, let’s do a quick examination of what has happened until now.
Starting in October last year, the Republicans began the process of drawing new districts based on the 2020 census, as prescribed in the North Carolina Constitution. First, we need to establish what direction the NC Constitution gives as far as redistricting.
State Senators
The Senators shall be elected from districts. The General Assembly, at the first regular session convening after the return of every decennial census of population taken by order of Congress, shall revise the senate districts and the apportionment of Senators among those districts, subject to the following requirements:
(1) Each Senator shall represent, as nearly as may be, an equal number of inhabitants, the number of inhabitants that each Senator represents being determined for this purpose by dividing the population of the district that he represents by the number of Senators apportioned to that district;
(2) Each senate district shall at all times consist of contiguous territory;
(3) No county shall be divided in the formation of a senate district;
(4) When established, the senate districts and the apportionment of Senators shall remain unaltered until the return of another decennial census of population taken by order of Congress.
State House Members
The Representatives shall be elected from districts. The General Assembly, at the first regular session convening after the return of every decennial census of population taken by order of Congress, shall revise the representative districts and the apportionment of Representatives among those districts, subject to the following requirements:
(1) Each Representative shall represent, as nearly as may be, an equal number of inhabitants, the number of inhabitants that each Representative represents being determined for this purpose by dividing the population of the district that he represents by the number of Representatives apportioned to that district;
(2) Each representative district shall at all times consist of contiguous territory;
(3) No county shall be divided in the formation of a representative district;
(4) When established, the representative districts and the apportionment of Representatives shall remain unaltered until the return of another decennial census of population taken by order of Congress.
Other Mentions of Redistricting
(5) Other exceptions. Every bill: (a) In which the General Assembly makes an appointment or appointments to public office and which contains no other matter; (b) Revising the senate districts and the apportionment of Senators among those districts and containing no other matter; (c) Revising the representative districts and the apportionment of Representatives among those districts and containing no other matter; or (d) Revising the districts for the election of members of the House of Representatives of the Congress of the United States and the apportionment of Representatives among those districts and containing no other matter, shall be read three times in each house before it becomes law and shall be signed by the presiding officers of both houses.
At no time does the Constitution give the courts a say in anything relating to the drawing of districts. Yet, the left seems to use their favorite forum to repealing constitutional amendments, or any other legislation that they could not repeal or overturn in any other fashion. Remember the constitutional amendments on which the people voted in 2018? Hence the phrase, “sue ‘til blue.”
Some Recent History
For the vast majority of the state’s history before and after the Civil War, redistricting was the sole prerogative of the Democrat Party, since North Carolina was mostly a one-party state until the 1970s. In the early 1990s when there was a Democrat legislature and a Republican Governor, the legislative leadership saw to it that the Governor did not get a veto on redistricting. Apparently, they did not anticipate that in 2011 and 2021, that there would be Republican legislature and a Democrat Governor. It should also be pointed out that no liberal groups filed any kind of lawsuit prior to the Republicans drawing the maps.
It should also be pointed out that every single Republican map drawn after 2010 has been the object of the Democrat’s “sue ‘til blue” strategy. So here we are.
The Process Begins
During the October-November timeframe, there were on-site and off-site opportunities for the public to weigh in on redistricting. There were computer terminals in two open committee rooms that allowed members of the legislature (in both parties) to provide input. It should be noted that members of the public could see everything online and in-person. With that said, no one can say that the process as presented by Republican legislators was anything but open and transparent. Even with that, the first lawsuit before the first bill was even filed. Other lawsuits from the usual suspects followed, including such important voting groups like the League of Conservation Voters (please note the sarcasm).
Please forgive the statement of the obvious, but during the debates on those bills in November, the Democrats only argument on these maps was “racism, racism, racism.” Without getting too deep into the weeds on this, the three judge panel from the Wake County Superior Court (two Republicans, one Democrat) seemed to not be phased by that overplayed argument. More on that later.
What needs to be focused on now is the secret vote (assuming there was a vote, since there is no record of it) that the Supreme Court to delay the primary and the re-opening of filing (the first delay in filing was instigated by Judge Darren Jackson, former House Democrat leader). Realizing that is a rhetorical question, the question must be asked. Under what authority does the Court can order a delay in the primary or the filing period (all constitutional prerogatives of the General Assembly, not the Governor or the Courts)? A plain English reading of the Constitution does not indicate any authority.
As the three-judge panel’s decision was moving through the legal pipeline, talk had circulated about two potential Democrat Justices recusing themselves. The two were Sam Ervin IV and Anita Earls. The reason for Ervin to recuse himself was for the very simple reason of being on the ballot this year, and Earls has been the recipient of nearly $250,000 in campaign cash from groups that are actively subvert the state elections processes, such as the one run by former Obama Attorney General Eric Holder. Clearly, neither one happened.
The troubling thing to all this is that the North Carolina Supreme Court had a long established reputation for following the law and constitution, and their resulting rulings have been fairly non-controversial as a result. Now that there is an incumbent Justice on the ballot who did not recuse himself, and a partisan operative posing as a Supreme Court Justice who was elected with the help of campaign cash from a brazenly partisan former US Attorney General, not to mention a candidate in 2018 who purposely split the Republican vote, this could severely damage that reputation among Constitutionalists and other fair-minded people.
The Arguments
First, a sample of the Supreme Court ruling, with special thanks to the Carolina Journal:
Democratic justices concluded that the GOP maps violated state constitutional provisions protecting free elections, freedom of speech, and freedom of assembly, along with the guarantee of equal protection of the laws.
“To comply with the limitations contained in the North Carolina Constitution which are applicable to redistricting plans, the General Assembly must not diminish or dilute any individual’s vote on the basis of partisan affiliation,” according to the order. “The fundamental right to vote includes the right to enjoy ‘substantially equal voting power and substantially equal legislative representation.'”
“This encompasses the opportunity to aggregate one’s vote with likeminded citizens to elect a governing majority of elected officials who reflect those citizens’ views,” the order continued. “When, on the basis of partisanship, the General Assembly enacts a districting plan that diminishes or dilutes a voter’s opportunity to aggregate with likeminded voters to elect a governing majority — that is, when a districting plan systematically makes it harder for one group of voters to elect a governing majority than another group of voters of equal size — the General Assembly unconstitutionally infringes upon that voter’s fundamental right to vote.”
“The General Assembly violates the North Carolina Constitution when it deprives a voter of his or her right to substantially equal voting power on the basis of partisan affiliation,” the order added.
What a joke!! One of the chief complaints against the redistricting maps was that it actually allowed for the possibility that one or two Republicans might win election in urban counties such as Wake and Mecklenburg, which comprise and aggregate of 20 House seats and 9 Senate seats. Clearly the Justices didn’t give any thought to the argument that Republican voters in those counties having their votes diluted. So that argument, in the minds of the Democrat Justices, only works one way.
Furthermore, in the most naked exercise of racial and partisan politics being played here, during testimony in front of the Wake County Superior Court judges, one of the defendants testified that only a Democrat legislature could represent African-American people. Interestingly enough, that testimony was turned on its head by virtue of the fact that Senator Toby Fitch (D-Wilson) publicly stated that Senate President Pro Tem Phil Berger had an open door policies to all Senators, and always listened to the concerns of members the Legislative Black Caucus.
The Democrat ruling, written by Justice Robin Hudson, was long on accusations but short on any Constitutional principles. What is even more laughable about this is that the ruling was sent out with the note “opinions to follow.” There’s only way to translate this: we are the sole power on this and we may or may not explain ourselves.
Fortunately, there was some sanity to come out of the decision that was decreed on February 4th. Of course, that was the dissenting view by Chief Justice Paul Newby.
“I dissent from the decision of the Court which violates separation of powers by effectively placing responsibility for redistricting with the judicial branch, not the legislative branch as expressly provided in our constitution,” Newby wrote. “As predicted by the Supreme Court of the United States, this Court’s decision results in an ‘unprecedented expansion of judicial power.'”
“By choosing to hold that partisan gerrymandering violates the North Carolina Constitution and by devising its own remedies, there appears to be no limit to this Court’s power,” Newby added.
“A majority of this Court, however, tosses judicial restraint aside, seizing the opportunity to advance its agenda,” Newby wrote of his Democratic colleagues. “There is no express provision of the constitution supporting the decision of the majority; there is no showing that the enacted redistricting plans are unconstitutional beyond a reasonable doubt. A summary pronouncement by the majority to the contrary does not make it so.”
“In the majority’s view, it is this Court, rather than the people, who hold the power to alter our constitution,” Newby added. “Thus, the majority by judicial fiat amends the plain text of Article I, Sections 10, 12, 14, and 19, to empower courts to supervise the legislative power of redistricting arising from complaints of partisan gerrymandering. Such action constitutes a clear usurpation of the people’s authority alone to amend their constitution.”
So What Now?
State lawmakers will have until Feb. 18 to submit new maps for a three-judge panel’s consideration. That panel must approve the legislative maps or its own alternative maps by Feb. 23. Candidate filing for all N.C. elections will resume as scheduled Feb. 24. Primary elections will take place May 17, according to the order signed by Justice Robin Hudson, the senior Democrat.