Doing the Impossible: Separating Politics and Race in North Carolina

By GENE NICHOL

As one of its first defining steps, the new Republican NC Supreme Court here issued a warm and almost giddy embrace of extreme, politically partisan gerrymandering. Our state constitution is now unbothered by political parties (at least Republican ones) permanently entrenching themselves in power. Rigging elections to predetermine partisan outcomes is no transgression. Tar Heels enjoy no state constitutional right to equal political participation. We’ve got a lot of liberties, but they don’t include the right to fair elections. We also have no state supreme court worthy of the name.

North Carolina Republicans, however, are not yet empowered to overturn the federal Voting Rights Act or the 14th and 15th amendments to the U.S. Constitution. So our General Assembly’s newly enacted electoral districts can still be invalidated if they are the products of illegal race discrimination. And here there will likely be much to litigate, because Republican lawmakers don’t seem to be able to resist targeting Black voters. Just ask the residents of the redrawn New Hanover County (Wilmington) Senate district.

But that means the federal courts are charged with doing something that has never occurred throughout North Carolina’s long history – separating race from politics. Good luck with that.

Judges will explore intentions and purported deceptions, asserted motivations and methodologies, secret documents and “surgical precisions” to determine the proffered racial claims. The litigating line assumes political gerrymandering is acceptable while racial distinction is barred. But that prescription raises an even more overarching and foundational question – are the actions of the highly racialized Republican caucuses of the N.C. General Assembly to gain and expand their power “racial” or merely “political”?

Here’s what I mean.

For the last 13 years, the governing Republican caucuses of our General Assembly have had either no, or almost no, African American members. Nor is this merely a question of aesthetics. Lawmakers have produced a heavily racialized substantive agenda. We know it well – “among the largest racial gerrymanders ever encountered by a federal court,” racial voter suppression rules unequalled “by any other legislature in the country,” continued restrictions on Black voters so pronounced that they “intrude upon (foundational notions) of popular sovereignty,” an interred Racial Justice Act, increased barriers to the review police-cam video, new penalties aimed at Black Lives Matter protesters, bizarre protections for Confederate statues, and more. Looking and governing like a White folks’ party.

So, my question – are the partisan gyrations of a racialized governing legislative caucus merely “political” or are they also “racial” steps to discriminate? When the often racially motivated NC General Assembly deploys politically biased strategies to entrench and expand its electoral power is that, somehow, immune from examination under the equal protection clause? When North Carolina Republicans again deploy some of the most aggressively distorted districting practices in American history to further a radically anti-egalitarian legislative agenda — to entrench that agenda permanently into the social and political life of North Carolina — can it actually be that the 14th and 15th amendments are untroubled? Is constitutional law, in fact, an ass?

Is it literally permissible, as North Carolina leaders seem to claim, to impose debilitating restrictions on Black voters so long as the burden is supposedly levied because the potential voters are Democrats, not because they are Black? Over the centuries African Americans have been offered a dizzying array of justifications for abuse at the hands of a White majority in North Carolina. This one reeks like the others.

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, December 15, 2023

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