The North Carolina General Assembly is having a busy fall trying to slip the annoying confines of judicial review.
` In late September, Republican lawmakers demanded that the North Carolina Supreme Court recognize an unfettered legislative power to draw electoral districts however they might choose – no matter how profoundly the maps disenfranchise their opponents to entrench Republican power.
And in the weeks ahead, the General Assembly will argue, separately, before the US Supreme Court in Moore v. Harper, that the Elections Clause of the federal constitution, despite two centuries precedent to the contrary, prevents the N.C. Supreme Court from reviewing legislative maps to redraw federal congressional districts.
The US Supreme Court ruled, famously, in Marbury v. Madison (1803) “it is emphatically the province and duty of the judicial branch to say what the law is.” Tim Moore and Phil Berger apparently think Chief Justice John Marshall got it wrong.
The General Assembly’s briefs in both cases are replete with demands that their discretion be unfettered – that the citizens of North Carolina are relegated to trusting the good offices of the lawmakers. Nowhere do they note that, over the course of the last decade, they have proven themselves to be the least trustworthy election regulators in America.
I know some might discount such a claim coming from me. I’m not cozy with North Carolina Republicans. So I turn, below, to the words of the federal courts, used in case after case, to describe the General Assembly’s efforts to restrict Tar Heels’ right to vote and to rig the electoral system in Republicans’ favor.
When Republican lawmakers drew new state districts early in the last decade, courts ruled they “created the largest racial gerrymanders ever confronted by a federal court.” The “widespread, serious and longstanding constitutional violation” was so pronounced it deprived Black North Carolinians of “a constitutionally adequate voice in the state legislature.”
Faced with continued recalcitrance by the General Assembly, a later court ruled: “we recognize that legislatures elected under unconstitutional districting plans have governed the people of North Carolina for more than four years and will continue to do so for more than two years after [courts] held districting plans unconstitutional.” These harms are “inflicted again and again in each subsequent election cycle putting into office legislators under a cloud of illegitimacy.”
A subsequent federal court lambasted the General Assembly’s redistricting argument that the legality of their districts was “certainly subject to rational disagreement.” The judges answered: “That is patently wrong. There is no rational disagreement as to whether the districts violate the Constitution. This Court unanimously held so. The US Supreme Court affirmed that conclusion without argument and without dissent.”
In invalidating the General Assembly’s monster voter ID law, another court determined that “neither this legislature, nor, as far as we can tell, any other legislature in the country has ever done so much, so fast, to restrict access to the franchise.”
Yet another federal tribunal found, in a subsequent gerrymandering challenge, “the chief legislative mapdrawer openly acknowledged the General Assembly’s majority ‘thinks electing Republicans is better than electing Democrats’ and created as many districts as possible to favor GOP candidates.” The lawmakers record, the judges concluded, “raises legitimate questions regarding (their) capacity or willingness to draw constitutional remedial districts.”
By 2018, judges would write: “We continue to lament that North Carolina voters now have been deprived of a constitutional congressional districting plan – and, therefore, constitutional representation in Congress – for six years and three election cycles.” Accordingly, essential bonds of “government by consent of the governed” had been broken.
Who would trust such a crew?
Gene Nichol is Boyd Tinsley Distinguished Professor of Law at the University of North Carolina School of Law and in 2015 started the North Carolina Poverty Research Fund after the UNC Board of Governors closed the state-funded Poverty Center for publishing articles critical of the governor and General Assembly.
From The Progressive Populist, November 1, 2022
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