Alexis de Tocqueville once remarked, “There is hardly a political question in the United States which does not sooner or later turn into a judicial one.” And it wouldn’t be a redistricting year in North Carolina without a turn to the courts to resolve this most political of conflicts.
Following each census count, the majority party in North Carolina’s General Assembly performs what one scholar has declared “the most political activity in the United States: redistricting.” And after more than 100 years of getting the short shrift when the Democrats had the power, the Republicans took full advantage of their ability to redraw the district lines and ultimately craft a majority for the next election cycles (more on that aspect in a later blog).
A three-judge panel’s ruling keeps alive two lawsuits that challenge the redrawn lines. One was filed by the state chapter of the NAACP, the League of Women Voters, and two public interest groups; the other lawsuit by both former and current lawmakers.
The three judges dismissed several claims made in both lawsuits, including the charge that the redrawn maps failed to reflect the “good of the whole.” But some of the more legal, and serious, charges were allowed to proceed. These challenges center on three key aspects that determine how the political game is played.
First, Article VI of the state’s constitution declares the basic principle of who may vote: Those born or naturalized in the United States, at least 18 years of age, who meet the residence requirements, and who are properly registered. The lawsuits allege that by dividing 395 whole precincts into separate districts, approximately 1.8 million voters are being “substantially burdened” in their right to vote.
Next, the lawsuits allege that the redistricting maps violate the legal principle of “equal protection of the law,” found in both North Carolina’s state constitution (Article I, Section 19) and the U.S. Constitution (14th Amendment). These expressions, written into the national and state governing documents, help to fulfill the ultimate vision of the United States, that “all men are created.”
The 14th Amendment, ratified following the Civil War, sought to fulfill the Declaration of Independence’s vision. Subsequent U.S. Supreme Court interpretations have take different approaches to this phrase, most notably in the cases of Plessy v. Ferguson (“separate but equal” is allowable, because “legislation is powerless to eradicate racial instincts or to abolish distinctions”) to Brown v. Board of Education (“separate educational facilities are inherently unequal”).
When it comes to the legal principle of “equal protection of the law” within the redistricting process, the U.S. Supreme Court has often turned to controversies over North Carolina’s redistricting activities for the past 30 years. Most notably, the case of Shaw v. Reno tried to walk the tightrope of when race could be used in redistricting, and when “too much” of racial consideration violates the equal protection of the la w. It all boils down to the pithy legal principle of “bizarreness.”
But it was a mere legal footnote to one of the most critical cases of the New Deal era that shaped how the courts have utilized equal protection. In 1937, Justice Harlan Stone wrote that “prejudice against discrete and insular minorities may be a special condition” that requires a “more searching judicial inquiry.”
What has developed into the concept of “strict scrutiny” means that the courts will take a very close look at governmental policies to ensure that it serves a compelling interest, it is narrowly tailored, and it is the least restrictive means of achieving the government’s interest.
When race is a component of a governmental policy, the federal courts will apply an exacting standard of reviewing that policy’s constitutionality. This is at the core of the allegations made against the current redistricting maps.
Finally, those opposed to the Republican redistricting plan focus on a little-known, but highly influential section of the North Carolina state constitution, the “whole county provision.” Based on an interpretation in a state case, the federal courts have held that redrawn legislative lines “must preserve county lines to the maximum extent possible.”
For most of us who study redistricting, North Carolina provides enough fodder to reconstitute many trees, due to the number of judicial opinions, articles, and books on the subject.
It appears that this year’s round of redistricting in the Old North State is well on its way to cutting down even more trees—and making Alexis very proud indeed.