High court careens back to the future

In the conservative catalogue of insults, calling a judge an “activist” is about as cutting as it gets. If this were an old-time playground war of words, it would rank up there with that classic zinger: “And your mama wears combat boots!”

How strange, then, that the conservative majority on North Carolina’s Supreme Court now has soared to a level of activism that may set a Tar Heel record for wild-eyed judicial overreach.

With its 5-2 Republican majority that took control in January, the court has swiftly, not to say brutally, nullified two major rulings that would have defended voting rights – under attack by Republicans who rule the General Assembly.

Yes, the targeted opinions were the work of the court’s previous Democratic majority. And of course the Republican justices are quick to say it was those opinions that were infected with partisanship.

Here’s the big difference. Even if court rulings intended to limit partisan gerrymandering and to shield voters from potentially discriminatory ID requirements might indirectly have helped Democratic candidates and causes, they would have done so by augmenting, not suppressing, people’s ability to vote and to have their votes carry meaningful weight.

In other words, they would have strengthened our small-d democratic system instead of warping it by making it harder for qualified citizens to participate. That’s the backsliding goal our present corps of activist justices seems happy to embrace.

Party favors

While gerrymandering has had its self-serving practitioners from both major parties, North Carolina’s recent experience has been a Republican production, intended to tighten the GOP’s grip on the state’s congressional delegation and the state House and Senate.

Voting rights advocates have fought back in federal and state courts, arguing that election districts drawn to boost Republican candidates have done so by violating the constitutional rights of voters who tend to favor Democrats. Race-based discrimination was a clear no-no. But that left the courts to decide whether discrimination on the basis of party affiliation, race aside, also could be blocked.

That’s where the state Supreme Court in 2022 first answered yes – only to do a sharp about-face once Republican justices took charge. 

First, the new court granted Republican legislators’ request to rehear the case known as Harper vs. Hall, in which extreme partisan gerrymandering had been found to violate several guarantees embedded in the state constitution and in which the court affirmed its duty to require changes to election maps.

Then on April 28, the court tossed its predecessor court’s rulings aside. Chief Justice Paul Newby, in his majority opinion, declared that drawing election district boundaries was the sole prerogative of the legislature, subject only to a few standards that the constitution specifically mentions. And he maintained there were no acceptably simple ways to gauge whether impermissible gerrymandering on the basis of party had occurred. 

Where to put the district lines, Newby asserted, involves political decisions beyond the courts’ proper authority to make. So that meant that district maps which were crafted with Supreme Court oversight, and which were used during the elections last fall for congressional and legislative seats, would have to be tossed.

The upshot is that Republican legislators now can proceed to draw new maps without restrictions on how much of an advantage their party’s candidates enjoy. That puts the GOP on track to strengthen its veto-proof legislative rosters for years to come, if not more or less permanently. 

At the same time, a revised congressional map could have national consequences if it boosts the narrow edge Republicans now hold in the U.S. House, where North Carolina’s current delegation features a 7-7 split.

See no evil

Newby’s opinion is as remarkable for what it doesn’t say as for what it does. For example, it leans heavily on a landmark 2019 ruling by the U.S. Supreme Court – in a case also involving North Carolina – in which Chief Justice John Roberts Jr. asserted that extreme partisan gerrymandering has no remedy under the federal Constitution and thus via the federal judiciary.

Still, Roberts had this to say: “Our conclusion does not condone excessive partisan
gerrymandering. Nor does our conclusion condemn complaints about districting to echo into a void.” He went on to explain how what he apparently agrees is a problem can be addressed. “Provisions in state statutes and state constitutions,” he wrote, “can provide standards and guidance for state courts to apply.”

Unfortunately, that prescription turns out to be a non-starter in North Carolina, where our high court now says there’s no constitutional guardrail to prevent one party essentially from hijacking election district maps for its own benefit. 

And once that party has cemented its power, no statute leading to fairer maps is likely to have a chance. Nor can North Carolina voters, unlike those in some other states, initiate referendums on constitutional changes by which partisan gerrymandering could be restrained.

Precious little of that context makes its way into Newby’s opinion. The chief almost seems pleased that our state constitution has no explicit language requiring that elections treat all voters substantially the same – i.e., allotting them more or less equal voting strength.

He’s quick to echo Roberts in concluding that the abuses of partisan gerrymandering are “non-justiciable” in the federal courts — without acknowledging Roberts’ view that states can come to the rescue.

What Newby could have done was reckon, even as Roberts did in his fashion, with the ensuing harm when election outcomes are essentially foreordained because of gerrymandering that lets politicians choose their voters.

Who can’t see the corrosive effect on public faith in our democracy when the party in charge of redistricting arranges to capture solid majorities of legislative seats even while claiming only a narrow edge at best in the statewide vote?

Not only does extreme gerrymandering suppress the views of those voters it targets, and thus the impact of disadvantaged officeholders, but it allows one powerful faction to pursue its agenda without meaningful debate or challenge. This is the system that our chief justice and his majority colleagues endorse seemingly without a qualm.

Those conservatives are entitled to their reasonable belief that judges should be cautious in any interference with legislative branch prerogatives. But that caution can be exercised in tandem with a responsibility to be good stewards of the democratic system.

For instance, Newby could have noted that moving to a less partisan redistricting process under the auspices of an independent commission, as many voting rights advocates favor, would be a positive step. Within the constraints of the opinion he was determined to write, he nevertheless could have tried to be helpful in signaling that unhinged gerrymandering is a valid concern, and not just for those on the losing side. His failure in that regard tends to show how partisan his exercise in judicial activism actually was.  

IDs in the cards

The court’s simultaneous ruling in Holmes vs. Moore, in which it moved to put photo identification for voters back in play, exhibited its own form of tunnel vision in discounting the potential effect on minority voters who are entitled to constitutional protection.

Its opinion signed by Justice Philip Berger Jr. likewise took an activist plunge in casting aside a well-grounded decision by the court as previously composed. Democratic Justice Michael Morgan, in a dissent joined by his Democratic colleague, Anita Earls, made plain just how far the majority had to stretch its normal guidelines for agreeing to reconsider a case – while downplaying the Republican-controlled legislature’s racially tinged history of voter suppression.

Earls, for her part, dissenting along with Morgan from Newby’s opinion (see page 147), ripped the chief’s assertion that the court had no way of measuring whether a certain degree of partisan gerrymandering was too much to tolerate. In fact, during lower court proceedings, several statistics-based methods were described that could be used, although Newby eventually signaled his impatience with what he basically characterized as political science mumbo-jumbo.

Earls zeroed in on the way today’s computerized map-drawing tools facilitate gerrymandering schemes that are reliably effective. Statistical tests of the kind scorned by Newby, she wrote, “use the same data [emphasis in original] and analyses that the General Assembly uses in attempting to create egregious partisan gerrymanders in the first place.”

She continued, “When the General Assembly uses advanced technological tools and similar analyses in drawing legislative plans, it does not simply cross its fingers and hope that it is making a close guess about election outcomes. It knows with near certainty what the outcomes are going to be. The same is true when trial courts use this data to determine whether the maps as drawn by the General Assembly have been gerrymandered on a partisan basis.” But her Republican colleagues denied any responsibility to act even when the evidence showed that kind of tilt.

No matter which party uses extreme gerrymandering to advance its interests, the effect is to muzzle a portion of the electorate and to lay a pall of authoritarianism over our democratic system. As practiced by conservatives whose dubious goals include undermining public education, increasing access to guns and interfering in women’s health decisions, the damage is compounded.“Following decisions such as this,” Earls wrote in summation, “we must remember that, though the path forward might seem long and unyielding, an injustice that is so glaring, so lawless,
and such a betrayal to the democratic values upon which our constitution is based
will not stand forever.” It will be up to many of us whether that prediction comes true or whether it remains a fervent but futile hope.