Annoying, Persistent, Increasing and Crucial Reminders that North Carolina is Part of the US

By GENE NICHOL

It came as little surprise when a federal court ruled that North Carolina’s state legislative districts were racially gerrymandered. A couple weeks earlier, the court of appeals in Richmond threw out the state’s voter ID law, which deployed “surgical precision” to target voting practices used heavily by African-Americans. The goal, the court explained, was to suppress black participation, not ensure ballot integrity. Governor Pat McCrory and General Assembly are at war with the 14th amendment.

The pattern has become old hat. Every month or so, a federal court rules that a new, often path-breaking, North Carolina enactment suppresses rights guaranteed by our foundational charter. In each instance, the freedoms of one disfavored group or another are determined to have been trampled by Republican leaders. The justifications proffered for the incursions are held to be mere feigned, tawdry pretense. Judges conclude the laws were passed, instead, to subordinate, demean and disenfranchise. Purposeful derogation and exclusion, the courts remind, aren’t kosher in America. And, even today, North Carolina is part of the United States.

A brief recap.

A federal court, and then the US Supreme Court itself, ruled North Carolina’s Amendment One “harms and humiliates the children of same sex couples,” while it “disrespects, stigmatizes and subordinates” lesbians and gay men. The state’s asserted interest in protecting traditional marriage was deemed pure subterfuge.

The Fourth Circuit ruled North Carolina’s neo-Stalinist mandatory sonogram law commandeered the doctor-patient relationship to compel a physician to express the ideological message of the state. The forced medical procedure had nothing to do with a women’s health and everything to do with her coercion. What matters a woman’s opinion, or her well being, after all, when you have the hubris to boast you speak for God?

The US Court of Appeals also concluded North Carolina’s congressional redistricting scheme was impermissibly gerrymandered. The judges found racial suppression the driving factor when Republicans recast electoral boundaries – lawmaker denials notwithstanding. The right to an equal vote is not subject, the judges held, to the grace and asserted bona fides of persistently disingenuous statehouse leaders.

The Fourth Circuit then, two months ago, upheld a challenge to the General Assembly’s alteration of the electoral system in Wake County (Raleigh) – which violated equality to “gerrymander Republican victories.” State Sen. Chad Barefoot and his co-conspirators, unhappy with Democratic wins in 2011, overrode local autonomy in “an intentional effort to obtain partisan advantage.” Barefoot, of course, claimed the move had nothing to do with politics. But courts engaging in constitutional review, thankfully, are not required to accept factual assertions all the world knows to be untrue.

The trend, of course, continues. The US has sued North Carolina over HB2 to guarantee “the dignity and respect that we, as a people and as a country, have enacted laws to protect.” The Tar Heel-born Attorney General asserted: “Not long ago, states, including North Carolina, had signs above restrooms keeping people out based upon a distinction without a difference.” Sen. Phil Berger’s “religious exemption law” – either in the presently filed case or one soon to follow – will be interred as well. There can be no government officer exemption to the enforcement demands of the fourteenth amendment. Apparently, the constitution’s writ runs fully in the land of the long leaf pine. So the taxpayers bill for attorney fees is $9 million, and rising. Really rising.

This is hardly the first time a bumbling southern governor and his henchmen (or, in our case, his overseers) have decried federal interference with the supposed traditions, expectations, desires, and predispositions of their constituents. It’s not the first time leaders have frothed about states’ rights and tenth amendment sovereignty. It’s not the first time demagogues have argued for a recaptured past instead of an equality-demanding future. It’s not the first time we’ve seen how important it is to have independent federal (as opposed to politically obeisant state) courts.

Because, at bottom, being part of the United States means something. As Carl Friedrich put it: “To be an American is an ideal, to be a Frenchman is a fact.” I don’t mean to mock the French. But the US was founded on an idea. It’s not race, or religion, or tribe, or color, or language, that marks us as a people – but a defining commitment to foundational values of liberty and equality. What Lincoln described as the notion “back of (the Constitution) entwining itself more closely about the human heart – the principle of liberty to all.”

It is our national birthright and lodestar — whether the governor and General Assembly understand it, or reject it, or choose to do battle against it. Here’s to Uncle Sam.

Gene Nichol is Boyd Tinsley Distinguished Professor of Law and in 2015 started the Poverty Research Fund at the University of North Carolina School of Law after the UNC Board of Governors closed the state-funded Poverty Center. He is also President Emeritus of College of William & Mary.

From The Progressive Populist, October 15, 2016

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