A Course Correction in North Carolina?

By GENE NICHOL

Any political activists and legal eagles among us might recall that at the beginning of the summer the North Carolina Supreme Court handed down a stunning trifecta of cases announcing there was a new sheriff in town. Harper v. Hall and Holmes v. Moore deployed the re-hearing procedure in a way that had never occurred in state history to make two recent decisions by the prior Democratic court disappear. As a result, it’s no longer unconstitutional to enact extreme partisan gerrymanders or to require a racially-disparate voter ID in North Carolina. A third case removed 55,000 former felons from the election rolls. Tough day for voting rights.

Now I’ll concede normal people can be forgiven for not reading 440 pages worth of state Supreme Court opinions. But laced throughout those dreadfully long rulings by Chief Justice Paul Martin Newby, Phillip Berger and Trey Allen was an alteration in judicial philosophy that extends well beyond election law. It hasn’t received much attention.

The justices explained that, in recent years, the NC Supreme Court had “strayed from (its) historic role”. It was necessary, therefore, to initiate a “course correction.” From now on, the judges will cling to the “clear’, “explicit” and “plain” meaning of the text – deploying a heavy presumption in favor of the handiwork of the General Assembly, “the great and chief department of government.” The constitution “is written to be understood by everyone, not just a select few.” There will no longer be “hidden meanings or opaque understandings.” A statute will be permissible unless a challenger shows a precise, textual violation, beyond any reasonable doubt. Partisan gerrymandering and voter ID didn’t meet that test.

Sounds nice. Just the simple and straight-forward. Only textual violations obvious to all – apparent to every North Carolinian – merit judicial enforcement. Easy as pie.

This version of judicial interpretation has little in common with American constitutional law – whether federal or state in pedigree. Many of our most foundational civil rights are not reflected explicitly in the constitutional text. Brown v. Board of Education (integrated schools), Griswold v. Connecticut (contraceptives), Harper v. Virginia (no poll tax), New York Times v. Sullivan (libel cases), Abington v. Schempp (school prayer), West Virginia v. Barnett (pledge of allegiance), Gideon v. Wainwright (appointed counsel), Obergefell v. Hodges (gay marriage), Miranda v. Arizona (right to police warnings), and Reynolds v. Simms (one person, one vote) aren’t explicit textual rulings. And that’s just listing 10 foundational decisions off the top of my head. The list could be multiplied by a thousand.

Maybe Newby means to launch a radical re-ordering of state constitutional law. Now only the obvious, undisputed, clear-to all will be enforced. I doubt it though. He couldn’t even manage to apply the “course correction” in the case before him.

The Harper plaintiffs alleged extreme gerrymanders not only deny equality but also violate North Carolina’s requirement that “all elections shall be free.” After an almost comical historical inquiry, borrowing from King James and England’s Glorious Revolution, Newby determined our free elections clause means only that Tar Heels must be able to “vote according to their conscience without intimidation.” A merely rigged election, therefore, is still a free election.

I doubt many Tar Heels, apart from Newby, believe that. Who wouldn’t grasp that a stacked election is still free? Is this what “understood by all” means? It reminds me of his earlier oral argument claim that our constitution requires only “free elections,” not fair ones. Sure enough. It’ll take more than a faux-scholarly reference to King James to convince folks of that.

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, September 15, 2023

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