By Mitch Kokai
A unanimous three-judge panel has upheld North Carolina’s new congressional and legislative election maps. The panel of two Republican Superior Court judges and one Democratic colleague rejected critics’ arguments that mapmakers engaged in unconstitutional partisan and racial gerrymandering.
The 260-page order also grants the State Board of Elections’ request to resume candidate filing for 2022 elections on Feb. 24. Filing for all state and local offices will restart on that date and last through noon March 4.
“These consolidated cases present this Court with the unique challenge of balancing the competing interests of fairness, the role of the judiciary, statutory and constitutional construction, the interpretation of prior court rulings, and good old fashion common sense,” according to the opinion from Judges Graham Shirley and Nathaniel Poovey, both Republicans, and Dawn Layton, a Democrat.
“Sometimes, courts are required to make decisions that are not popular, but because judges take an oath to uphold the law, those rulings are mandated,” they added. “And sometimes, redress of a perceived wrong does not lie with the judiciary, but rather, with one of the other co-equal branches of government.”
“All of Plaintiffs’ claims in these lawsuits, in essence, stem from the basic argument that the 2021 redistricting maps passed by the North Carolina General Assembly are unconstitutional under the North Carolina Constitution,” the judges wrote. “We have taken great lengths to examine that document. At the end of the day, after carefully and fully conducting our analysis, it is clear that Plaintiffs’ claims must fail. Judges, just like many of the citizens they serve, do not always like the results they reach. That fact notwithstanding, judges have a solemn duty to uphold the law. We have done our best to perform that duty, regardless of the consequences.”
The judges produced their ruling Tuesday, meeting a deadline set by the N.C. Supreme Court. The ruling followed a four-day trial last week. The state’s highest court had ordered both the trial and the Jan. 11 date for a final ruling.
The same Supreme Court order establishing that deadline gave the losing parties in the case two business days to appeal the ruling. That appeal will bypass the N.C. Court of Appeals and move directly to the Supreme Court.
Within moments of the ruling, the Southern Coalition for Social Justice vowed to appeal. SCSJ represents one set of plaintiffs in a case that combines multiple lawsuits.
Democrats hold a 4-3 majority on the state Supreme Court. Legislative defendants asked last week that Democratic Justice Sam “Jimmy” Ervin IV recuse himself from the case. Ervin is the only sitting justice running for re-election this year. Plaintiffs in the case also had called last month for the disqualification of Republican Justice Phil Berger Jr. Berger’s father, leader of the state Senate, is a named defendant in the case.
Neither Ervin nor Berger has responded publicly to the recusal motions. Berger rejected a recusal request made for similar reasons in another case.
The three-judge panel’s ruling spells out the current restraints on lawmakers drawing N.C. election maps. “[T]oday there are four objective constraints delineated in the North Carolina Constitution: (1) apportionment of the district by population such that the representative or senators in each district shall represent, as nearly as may be, an equal number of inhabitants; (2) A contiguity requirement; (3) a Whole County Provision; and (4) a Mid-Decade Provision,” the judges wrote. “At no point has restriction of redistricting for partisan advantage ever been made part of any North Carolina Constitution.”
The judges rejected plaintiffs’ arguments that new N.C. election maps violated various portions of the N.C. Constitution.
“Plaintiffs would have this Court infer that it was the intent of the framers of
the 1971 Constitution, by including the Equal Protection Clause and Free Speech Clause in the State Constitution, to limit the legislature’s ability to redistrict for partisan advantage to some degree,” the judges wrote. “If the framers did intend to limit the partisan advantage that could be obtained through redistricting, ‘it is reasonable to presume it would have been declared in direct terms and not be left as a matter of inference.’”
“Redistricting and the political considerations that are part of that process do not impinge on the right to vote,” the judges added. “Nothing about redistricting affects a person’s right to cast a vote. Any impingement is limited and distant and as such is subject to a rational basis review. … The Court finds that the plans are amply supported by a rational basis and thus do not violate the Equal Protection Clause.”
The decision does not endorse the maps themselves. “This Court neither condones the enacted maps nor their anticipated potential results,” the judges wrote. “Despite our disdain for having to deal with issues that potentially lead to results incompatible with democratic principles and subject our State to ridicule, this Court must remind itself that these maps are the result of a democratic process.”
The court also warned against judicial overreach. “Redistricting is a political process that has serious political consequences,” the judges wrote. “It is one of the purest political questions which the legislature alone is allowed to answer. Were we as a Court to insert ourselves in the manner requested, we would be usurping the political power and prerogatives of an equal branch of government. Once we embark on that slippery slope, there would be no corner of legislative or executive power that we could not reach.”
“Indeed, under Plaintiffs’ rationale, we could require the Governor to ensure that the partisan makeup of his political appointees matched or closely resembled the percentage of votes that his political opponent received.”
A state Senate redistricting leader responded to the ruling. “Now that a bipartisan court unanimously validated the maps, the people of our state should be able to move on with the 2022 electoral process,” said Sen. Warren Daniel, R-Burke, in a prepared statement.
“But the sue-‘til-blue organizations and their lawyers will probably appeal to the conflict-riddled state Supreme Court because its 4-3 Democratic majority was won with the help of a six-figure donation from the very organization funding this case,” Daniel added.
“Eric Holder’s organization donated $250,000 to elect Justice Anita Earls, who has not yet recused herself even though this case is funded by that same organization — her largest campaign backer.
“And another justice, Sam Ervin, is on the ballot but hasn’t recused himself even though this case will decide the rules and timeline governing his own reelection,” Daniel said.