Judges Uphold Constitutional Separation of Powers in Redistricting Case | Eastern North Carolina Now

    Publisher's Note: This post appears here courtesy of the John Locke Foundation. The author of this post is Dr. Andy Jackson.

    A three-judge panel, consisting of two Republicans and one Democrat, unanimously rejected plaintiffs' call to overturn state legislation and congressional districts drawn by the General Assembly on January 11.

    The combined cases, North Carolina League of Conservation Voters v Hall and Harper v Hall, have a date with the North Carolina Supreme Court, so this ruling will soon be forgotten. However, two elements of the verdict stand out.

    Attorney's Performing Poorly

    The first thing that jumps out in the ruling is how often plaintiffs failed to make their case. For example, we could say that plaintiffs' failure to win on Voting Rights Act claims was not due to a lack of trying, except they did not try (page 24):

    Plaintiffs evidence, however, fails to sufficiently show that any of the districts were required to be VRA districts and, to the extent Stephenson requires this determination at the outset, Plaintiffs do not assert a VRA claim.

    And on page 248:

    [E]ither for strategic reasons or a lack of evidence, Plaintiffs have repeatedly informed the Court that they are not pursing a Voting Rights Act claim, but rather, are only pursuing a State Constitutional claim for racial gerrymandering.

    The plaintiffs also failed in their arguments that the districts enacted by the General Assembly violated the Free Speech, Right of Assembly, Equal Protection, and Free Elections clauses of the North Carolina Constitution.

    Redistricting is "Non-justiciable"

    Even if the plaintiffs' had not failed in all of their constitutional claims, they still would have lost. They would have lost because determinations of political boundaries are not the business of the courts (page 142):

    In North Carolina, our Supreme Court has had an opportunity on a number of occasions to address whether the creation of boundaries is a question that presents a justiciable controversy. In those instances, the Supreme Court has found that they were political questions and thus non-justiciable.

    The verdict states several other reasons why courts are not the proper place to settle questions over political boundaries, and then gets to the heart of the matter on pages 247-248:

    Redistricting is a political process that has serious political consequences. 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.

    In short, the separation of powers enshrined in the North Carolina Constitution demands that political questions be left to the political branches. As specified in Article II (Sections 3 and 5), the branch empowered to handle redistricting is the General Assembly.

    Let's hope that Supreme Court justices similarly respect the limits of their power.
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