N.C. Judges Adopt Reasoning from Kagan Dissent

Editors’ Note: The N.C. state court essentially adopted Justice Elena Kagan’s dissent, which is a masterpiece “Brandeis brief” against gerrymandering. Her analysis is likely to be repeated in other state challenges. Excerpted from The New York Times, September 4, 2019.

Image result for NC gerrymanderingThree state judges on a North Carolina trial court just did what a majority on the United States Supreme Court said was impossible only a few months ago — apply well-established legal standards to strike down some of the most egregious partisan gerrymanders in the country.

The state court judges’ 357-page ruling applies to the North Carolina state legislature, the General Assembly, which now has two weeks to come up with new, fairer maps for state legislative districts. It also sends a broader message to the justices in Washington, and to state judges everywhere: See? Protecting democracy from self-interested, power-hungry politicians isn’t so hard after all.

The lawsuit decided on Tuesday was the latest in a long line of litigation against North Carolina’s legislative maps, which the state’s Republican lawmakers have been unilaterally hacking up for the last eight years, then stitching back together to resemble not the state as it is (a hotly contested battleground) but as they would like it to be (a towering, impregnable Republican fortress).

The existing maps were so effective that they helped entrench Republican majorities even when Democrats won more votes statewide. In 2018, Republican candidates for North Carolina’s House of Representatives won less than 50 percent of the two-party statewide vote, but walked away with 65 seats to the Democrats’ 55. Republican candidates for the State Senate also won a minority of the popular vote, and still took 29 of 50 seats.

This kind of abuse of the democratic process is precisely what courts are designed to fix. But when North Carolina voters begged the United States Supreme Court for relief, arguing that they had been written out of the political process by the very people who were supposed to serve them, the five conservative justices turned their backs. The court could do nothing, Chief Justice John Roberts wrote in June — not because the Republicans are innocent, but because the judiciary can’t hold them accountable for what are, in essence, political crimes.

On Tuesday afternoon, the North Carolina judges — two Democrats and a Republican — agreed unanimously that they didn’t need the federal Constitution to vindicate Americans’ basic democratic rights. They could rely on their state’s own Constitution, which guarantees, among other things, free elections, equal protection and freedom of speech and assembly — all of which they said the Republicans’ maps violated.

“The object of all elections is to ascertain, fairly and truthfully, the will of the people,” the judges wrote, quoting the North Carolina Supreme Court. The “inescapable conclusion,” they said, was that the maps “do not permit voters to freely choose their representative, but rather representatives are choosing voters based upon sophisticated partisan sorting.”

The judges offered a simple and clear rejoinder to Chief Justice Roberts’s warning that judges would find it impossible to avoid getting caught up in the partisan bickering over legislative mapmaking. “It is not the province of the court to pick political winners or losers,” they wrote. “It is, however, most certainly the province of the court to ensure that ‘future elections’ in the ‘courts of public opinion’ are ones that freely and truthfully express the will of the people. All elections shall be free — without that guarantee, there is no remedy or relief at all.”

This is the central problem of partisan gerrymandering, and one that the conservative justices missed, or refused to see: When foxes guard henhouses, the hens invariably disappear.

The North Carolina judges, in contrast, aimed their sights squarely at the foxes — documenting how the Republican maps had been drawn intentionally to favor Republicans at the expense of Democrats, and noting that the lawmakers had offered no good alternative explanation for the extreme bias.

The North Carolina judges, in contrast, aimed their sights squarely at the foxes — documenting how the Republican maps had been drawn intentionally to favor Republicans at the expense of Democrats, and noting that the lawmakers had offered no good alternative explanation for the extreme bias.

The ruling applies only to state legislative districts, but its reasoning applies equally to North Carolina’s congressional districts, which are equally skewed. In the 2018 midterms, Republican candidates won a bare majority of the vote, but wound up winning 10 of the 13 seats in the House. One Republican lawmaker involved in the redistricting process explained that he and his colleagues had settled on that map only because “I do not believe it’s possible to draw a map with 11 Republicans and two Democrats.”

Braggadocio like that was absent on Tuesday. Only hours after the state court’s decision, North Carolina Republicans folded, admitting that they had finally run into a barrier they couldn’t draw their way around. In a statement that should be a finalist for the 2019 Chutzpah Award, the State Senate leader, Phil Berger, accused Democrats of trying to “game” the redistricting process, blamed the years of litigation over their maps for harming the “legitimacy of this state’s institutions,” and sniffed that they would abide by the ruling and draw “a nonpartisan map.”

At least they didn’t behave like their Republican counterparts in Pennsylvania, who responded to a decision by that state’s Supreme Court tossing out their biased maps by trying to impeach the justices who issued the ruling.

That’s why Justice Elena Kagan pointed to partisan gerrymanders as an existential threat to democratic self-rule. In her dissent from the Supreme Court’s decision in June, she explained that gerrymandered maps “make bipartisanship and pragmatic compromise politically difficult or impossible; and drive voters away from an ever more dysfunctional political process.” Justice Kagan asked, “Is this how American democracy is supposed to work?”

Tuesday’s decision in North Carolina was right to answer that question in the negative, and to claim a space for state courts elsewhere to intervene when partisan gerrymandering has effectively silenced huge portions of the electorate. But state courts shouldn’t have been saddled with this job in the first place. As Justice Kagan wrote in June: “What do those courts know that this court does not? If they can develop and apply neutral and manageable standards to identify unconstitutional gerrymanders, why couldn’t we?”

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