No one reading this post is likely to pull a brain muscle describing ways in which the recent elections could have consequences ranging from the unfortunate to the dire.
Our incoming president sends signals that he may be willing to walk back a few of his more extreme campaign positions, but so far the folks he’s choosing to carry out his agenda (if he can even be said to have an agenda) don’t inspire confidence.
It’s likely their negative impact will be felt in the spheres of health care, environmental protection, civil rights, the treatment of immigrants, tax policy…we could go on. And the shoe has yet to drop with regard to a pivotal Supreme Court pick.
Indeed, in North Carolina, Republican forces may be counting on a freshly restored conservative majority on the high court to safeguard what has proved to be their most effective tool for gaining and holding power.
That would be the case if a ninth member of the court – nominated by Donald Trump to fill the vacancy created by the death almost a year ago of Antonin Scalia – provides the swing vote to kill challenges to the General Assembly’s GOP-friendly redistricting plans. Voting rights advocates already have convinced lower courts that the plans, which set election district boundaries for congressional and legislative seats, amount to impermissible gerrymanders that unconstitutionally devalue the votes of African-American citizens.
The stakes are enormous – perhaps most obviously at the state level. Running in gerrymandered districts, Republicans have claimed big majorities in the House and Senate, with numbers of seats well out of proportion to Republican strength in the electorate.
Democratic voters typically are packed into districts where Democratic candidates can succeed. But that makes other districts lean Republican to the point where Democrats basically don’t stand a chance. And there are more of those districts – which goes a long way toward explaining why Republicans have been able to keep a firm grip on North Carolina’s legislative machinery since the current district maps took effect in 2012.
Even if Republican Gov. Pat McCrory, erstwhile moderate center-right mayor of Charlotte, had summoned the nerve to put up more resistance, his ostensible legislative allies have had the votes to do pretty much whatever they wanted, vetoes or no vetoes. And so they proceeded to saddle McCrory with statutory turkeys such as House Bill 2, which became a national symbol of Republican hostility to the LGBT community and which arguably dragged McCrory – the bill’s not-very-enthusiastic chief defender – down to defeat even while other Republicans atop the ticket such as Trump were cruising.
Price of a preference
How did the GOP gerrymanderers decide which voters would be disadvantaged? It wasn’t rocket science. They looked at skin color.
It’s no surprise that since the flowering of the civil rights movement several decades ago, black voters have shown a preference for Democrats – the party that has been more willing to deploy the influence of government in pursuit of social justice.
So in their efforts to minimize Democratic clout at the polls, legislators figured they could get the job done by targeting African-Americans. In August a federal court – mindful of the federal Voting Rights Act as well as constitutional guarantees of equal protection — blew the whistle.
Of the 120 House districts and the Senate’s 50, a total of 28 were deemed by a panel of judges to be shaped in ways that violate black voters’ rights. The remedy: redraw the districts.
That order didn’t come down in time to affect the elections last month. But now, the same three judges have told legislators to make the necessary fixes by mid-March. A new round of elections is supposed to follow in the fall – a year earlier than normal. So the partisan chemistry at the Legislative Building on Raleigh’s Jones Street could be in for a shake-up.
“While special elections have costs,” the judges wrote, “those costs pale in comparison to the injury caused by allowing citizens to continue to be represented by legislators elected pursuant to a racial gerrymander.”
Even if Republicans sustain their majorities, the loss of a modest number of seats would deprive them of their virtually automatic ability to override a governor’s veto along party lines. (An override requires the support of three-fifths of the legislators present and voting in each chamber.)
So, if Democratic state Attorney General Roy Cooper maintains his lead over McCrory as pockets of votes in the governor’s race are recounted, Cooper perhaps could look forward to a situation where his veto of a Republican-sponsored bill wouldn’t be futile from the outset.
That could be highly significant in charting the course of state policy – steering it back toward the sensible middle where, for example, the ability to fund programs and services vital to the state’s overall well-being takes precedence over tax cuts for corporations and the rich.
Legislative leaders ripped the judges’ latest order as politically motivated – a predictable criticism for them to level at any decision aimed simply at keeping their party from unfairly and unconstitutionally tilting the scales.
The fact is that the panel with two Democratic judges and one Republican ruled unanimously. And speaking of political motivation…well, it’s hard to imagine a scheme more driven by the quest for partisan advantage than the current districting plan.
The plan’s defenders noted that they’ve already appealed the judges’ original finding that the legislative districts as drawn discriminate against black voters. One could almost see them smirking in their expectation that, with a Trump nominee seated on the Supreme Court, such findings of racial bias eventually will go up in smoke.
They’re probably hoping for the same kind of outcome when the courts rule on allegations that North Carolina districts also carry plain partisanship out the window, to the unfair disadvantage of voters who happen to be Democrats, whether black or white.
Republicans in the U.S. Senate – partisan champs to be sure, who have practically lived and breathed with the goal of frustrating any initiative put forward by President Obama – no doubt will be happy to confirm a Supreme Court nominee whom they figure will cooperate with the Republican playbook.
But whoever that nominee turns out to be, perhaps it’s not too much to hope that members of the Supreme Court and the entire federal judiciary will take their responsibilities to the law and the Constitution even more seriously with loose cannon Donald Trump in the White House.
In that case, Republican legislators who expect Republican judges to green-light everything they come up with might need to recalibrate. They could still wind up having to draw election districts that satisfy basic principles of fairness – with all voters, no matter their party inclinations and certainly no matter their race, having an equal say when they cast their ballots.