By Mitch Kokai
Senior Political Analyst
John Locke Foundation
Critics argue that North Carolina’s new election maps violate key basic provisions of the state’s Declaration of Rights. Those critics include the four Democrats serving on the N.C. Supreme Court. They labeled the maps unconstitutional.
Read the Declaration’s provisions yourself in Article I of the N.C. Constitution. You’ll get a sense of just how far the legal arguments diverge from the document’s text.
The Declaration of Rights features 38 sections. Four sections play roles in this discussion.
Section 10 declares, “All elections shall be free.” Section 12 addresses the rights of assembly and petition. “The people have a right to assemble together to consult for their common good, to instruct their representatives, and to apply to the General Assembly for redress of grievances; but secret political societies are dangerous to the liberties of a free people and shall not be tolerated.”
Section 14 identifies two important freedoms. “Freedom of speech and of the press are two of the great bulwarks of liberty and therefore shall never be restrained, but every person shall be held responsible for their abuse.”
Section 19 contains two major provisions. The second affects the election maps debate. “No person shall be denied the equal protection of the laws; nor shall any person be subjected to discrimination by the State because of race, color, religion, or national origin.”
Most of us endorse concepts spelled out in Article I, sections 10, 12, 14, and 19. But unless you have spent much of your life immersed in election law disputes, you’re likely to ask: What do any of these provisions have to do with election maps?
It’s a good question. It’s one election map challengers strain to answer. They have to put forward some answer as they use state government’s judicial branch to throw out election maps they don’t like.
Critics say maps drawn for Republicans’ partisan advantage challenge the “free” nature of the state’s elections. The challenged maps also infringe on the rights of free speech and assembly, and they deny equal protection of the laws, according to the argument.
If those conclusions sound far-fetched to you, don’t worry. It’s not just your lack of sophisticated legal training. Count Chief Justice Paul Newby and his two Republican colleagues among those who spot dubious constitutional interpretation.
During oral arguments before the Supreme Court Wednesday, Newby responded to the claim that the maps “subvert the will of the people.”
“Why can’t you say that the will of the people is established by the precise language of the constitution?” Newby asked. “The precise language of the constitution in Article II gives the General Assembly the authority to redistrict, and it sets out the objective standards that are to be used. Why isn’t that the will of the people?”
Newby amplified his concerns in a response to the court order rejecting the election maps.
“I dissent from the decision of the Court which violates separation of powers by effectively placing responsibility for redistricting with the judicial branch, not the legislative branch as expressly provided in our constitution,” Newby wrote. “As predicted by the Supreme Court of the United States, this Court’s decision results in an ‘unprecedented expansion of judicial power.’”
Since the constitution assigns election mapmaking to the legislature, courts should remain wary of interfering with the process, Newby argued.
“[A]ll power which is not limited by the Constitution inheres in the people,” he wrote, quoting a 60-year-old court precedent. “The people act through the General Assembly. Since the General Assembly serves as the ‘agent of the people for enacting laws,’ a restriction on the General Assembly is in fact a restriction on the people themselves.”
Newby accused his Democratic colleagues of misusing the state constitution’s Free Elections, Free Speech, Free Assembly, and Equal Protection clauses.
“In the majority’s view, it is this Court, rather than the people, who hold the power to alter our constitution,” Newby added. “Thus, the majority by judicial fiat amends the plain text of Article I, Sections 10, 12, 14, and 19, to empower courts to supervise the legislative power of redistricting arising from complaints of partisan gerrymandering. Such action constitutes a clear usurpation of the people’s authority alone to amend their constitution.”
To the chief justice, the court’s Democratic majority plays the role of usurper, “seizing the opportunity to advance its agenda.” “There is no express provision of the constitution supporting the decision of the majority; there is no showing that the enacted redistricting plans are unconstitutional beyond a reasonable doubt. A summary pronouncement by the majority to the contrary does not make it so.”
It would be difficult to find a more clear-cut case of subverting the will of the people.
Mitch Kokai is senior political analyst for the John Locke Foundation.