Legislators defend their redistricting authority in brief for N.C. Supreme Court | Eastern North Carolina Now

    Publisher's Note: This post appears here courtesy of the Carolina Journal. The author of this post is CJ Staff.

    Legislative leaders urge the N.C. Supreme Court to confirm the General Assembly's authority to draw state election maps. That's the key argument of a brief submitted Wednesday in the state's ongoing legal fight over redistricting.

    "The central question in this appeal is whether the General Assembly retains even a scintilla of discretion in redistricting or whether the judiciary has become North Carolina's redistricting authority. To ask the question is to answer it," wrote attorney Phillip Strach, who represents top Republican lawmakers.

    Those legislative leaders are defending new state House and Senate election maps drawn for the 2022 elections. Both maps replaced earlier versions tossed out by the state Supreme Court. The high court had ruled that both original legislative maps, along with a congressional map, employed partisan gerrymandering that violated the N.C. Constitution.

    A three-judge panel later accepted revised state House and Senate maps, labeled remedial plans, and the state Supreme Court refused to block them for this year's elections. Yet left-of-center critics continue to challenge the House and Senate maps. The state Supreme Court will determine whether the current maps will continue to be used after 2022.

    "The North Carolina Constitution vests the General Assembly with redistricting authority; that body enacted new redistricting statutes ... in response to this Court's fashioning a new 'partisan gerrymandering' limit on its authority," Strach wrote. "[T]he General Assembly is not alleged to have purposefully discriminated against the Democratic party in the State Remedial Plans. The State Remedial Plans satisfy the letter and spirit of this Court's ruling, as the partisan-fairness measurements endorsed by that ruling and adopted by the General Assembly prove."

    "Plaintiffs-Appellants suggest a constitutional system in which courts are free to draw districts based upon personal preference as defined by a simple majority of any particular set of judges (including of a single political party)," Strach argued. "This Court should not open that Pandora's box. The superior court's finding that the State Remedial Plans comply with this Court's prior orders is sound and supported by substantial and competent evidence. Its judgment concerning the State Remedial Plans should be affirmed."

    If the Supreme Court disagrees, the General Assembly should have the opportunity to draw another set of maps, Strach wrote.

    "The Constitution reserves to the General Assembly the right to apportion state Senate and House districts. If the Court orders the implementation of permanent Senate or House plans drawn by it or the superior court, the effect of any such order would be to transfer the constitutional authority for redistricting from the General Assembly to the judicial branch," he argued. "There is no precedent for any such remedy. Any ruling effectively transferring redistricting authority to the judicial branch would constitute the most extreme and outrageous violation of the separation of powers doctrine in the history of North Carolina."

    Nor should the state Supreme Court determine that any new legislative election maps would be used for the rest of this decade, Strach wrote.

    "For this Court to announce that any given plan (especially a plan not even yet crafted or adopted as law) will override any future plan during a given time frame would be improper and unprecedented," according to the legislators' brief. "Any such statement would constitute an advisory opinion that would not, and could not, prove binding in future litigation."

    Strach takes aim at arguments from Gov. Roy Cooper and Attorney General Josh Stein, both Democrats. They have filed a joint friend-of-the-court brief in the case. In past redistricting disputes, the attorney general consistently supported the General Assembly's right to draw - and redraw - election maps. Now Cooper and Stein appear to support the courts drawing election maps.

    "Given the history of positions taken by the Attorney General in previous redistricting cases, it is beyond disingenuous for the Attorney General and the Governor (as the former Attorney General) to argue for the first time in decades that once the General Assembly establishes legislative plans, it loses any and all authority to modify plans to address constitutional violations identified by the courts," Strach wrote. "In fact, the Attorney General previously took the completely opposite view when Democrats controlled the majority in the General Assembly."

    "The unprecedented remedy now sought by the Attorney General, contrary to the position that office has taken in five different redistricting decisions over the last twenty years, finds no basis in the text of the North Carolina Constitution," he added. "No rational person could read the state Constitution without concluding that all redistricting authority lies exclusively with the General Assembly. Nowhere in the Constitution are there any provisions that can reasonably be construed as allowing the courts to declare districts illegal so that they can then draw permanent districts they prefer to districts adopted by the People's representatives."

    Strach's brief did not address a contested congressional map. The state Supreme Court tossed out the original map lawmakers drew for North Carolina's 14 seats in the U.S. House of Representatives. The same three-judge panel that accepted remedial state House and Senate maps rejected a revised congressional map.

    The judges substituted their own map for 2022 congressional elections, drawn by three outside "special masters."

    Legislative leaders are challenging the rejection of their congressional map at the U.S. Supreme Court in a case titled Moore v. Harper. Arguments in that case are expected this fall.

    Meanwhile, state lawmakers have asked to drop their appeal of the N.C. congressional map in state Supreme Court proceedings. Plaintiffs in the case oppose legislators' request.

    The state Supreme Court has not yet scheduled oral arguments in the latest redistricting dispute.