Redistricting in North Carolina: Democrats Find New Avenue of Attack Against Republicans

Redistricting in NC (flag pic)

by Diane Rufino, September 29, 2019

We’ve been hearing a lot about “redistricting” lately. In fact, we heard that a state court invalidated two of the popularly-mandated (that is, approved by voters in 2016) amendments to the state constitution (the one adding a photo ID requirement to vote and the other capping the state income tax at 7.5%) on the grounds that the bills giving rise to the amendments were the illegal products of an illegitimate NC General Assembly. The body was claimed to be “illegitimate” because several representatives were supposedly elected pursuant to improperly racially-gerrymandered district maps.

So what are we referring to when we talk about “redistricting”?

Redistricting is the process by which new congressional and state legislative district boundaries are drawn. Each of North Carolina’s 13 United States House representatives and 170 state legislators [120 for the House and 50 for the Senate] are elected from political divisions called districts. United States senators are not elected by districts, but by the states at large. District lines are redrawn every 10 years following completion of the United States census. The federal government stipulates that districts must have nearly equal populations and must not discriminate on the basis of race or ethnicity.

I.  WHERE WE STAND (After Several Court Opinions) —

(1) On June 27, 2019, the Supreme Court of the United States issued its opinion in Rucho v. Common Cause, finding that partisan gerrymandering claims, such as that made against North Carolina’s congressional district plan, present political questions that fall beyond the jurisdiction of the federal judiciary. As part of its ruling, the high court overturned a district court ruling that had struck down the state’s congressional district plan as an impermissible partisan gerrymander. The case was remanded back to the state court system.

(2) On September 3, 2019, in the case Common Cause v. David Lewis, a state court struck down North Carolina’s legislative district plan as an impermissible partisan gerrymander under the state constitution. Did you know that the state constitution requires districts to be drawn in a non-partisan manner? Clearly, those Democrats who were in power for over 110 years in the state, and who took their oaths to support the constitution, did not know it. Or if they did, they chose to violate those “apparent” provisions. Following the lead of a court in Pennsylvania which held that redistricting maps must be drawn on a non-partisan basis, the group Common Cause filed suit in North Carolina to challenge the 2017 redistricting maps drawn by a Republican-dominated General Assembly as being violative of the state constitution and its requirements for non-partisanship in elections.

Common Cause, a non-profit organization that claims to be “non-partisan,” was under the leadership of Robert Reich, former Secretary of Labor in the Clinton Administration and a rabid socialist, for 5 years – from 2013-2018.

Here are the state constitutional provisions that Common Cause referred to in their challenge to the 2017 redistricting maps:

The NC state constitution provides, in Article I (“Declaration of Rights”):

Article I, § 14 reads: “Freedom of Speech and Press. 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.” [Referred to in court rulings and in this article as the “Freedom of Speech” Clause of the NC state constitution].

Article I, § 12 reads: “Freedom of Assembly and Redress. 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.” [Referred to in court rulings and in this article as the “Freedom of Assembly” Clause of the NC state constitution].

The NC General Court of Justice, Superior Court Division, Raleigh agreed with Common Cause. In their unanimous conclusion, issued earlier this month on September 3, the 3-member panel of judges (Judges Paul Ridgway, Joseph Crosswhite, and Alma Hinton) wrote:

The Freedom of Speech Clause in Article I, § 14 of the North Carolina Constitution provides that “freedom of speech and of the press are two of the great bulwarks of liberty and therefore shall never be restrained.” The Freedom of Assembly Clause in Article I, § 12 provides, in relevant part, that “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.” The 2017 Plans, therefore, violate the North Carolina Constitution’s guarantees of free speech and assembly, irrespective of whether the plans violate the U.S. Constitution. [pp. 317-318]

North Carolina’s Constitution Protects the Rights of Free Speech and Assembly Independently from the Federal Constitution. The NC Supreme Court has held that “in construing provisions of the Constitution of North Carolina is not bound by opinions of the Supreme Court of the United States construing even identical provisions in the Constitution of the United States.” The NC Supreme Court has further held that the North Carolina Constitution’s Free Speech Clause provides broader rights than does federal law. In particular, the Court has held that the North Carolina Constitution affords a direct cause of action for damages against government officers in their official capacity for speech violations, even though federal law does not. [pg. 318]

In 2017, the US Supreme Court wrote: “By packing and cracking Democratic voters to make it harder for them to translate votes into legislative seats, the 2017 Plans “single out a subset of messages for disfavor based on the views expressed. This is the essence of viewpoint discrimination.” Matal v. Tam, 137 S. Ct. 1744, 1766 (2017, Kennedy concurring). NC Republican legislators (defendants) drew the 2017 Plans in a way that deliberately minimized the effectiveness of the votes of citizens with whom they disagree (ie, Democrats).  [pg. 326]

Question: Isn’t the historically accepted exercise of re-districting by the political party in power to “minimize the effectiveness of votes cast by citizens with whom they disagree”?   I think everyone has come to accept this as the permissible consequence of election outcomes. “Elections have consequences.” How many times have we heard this? The Supreme Court itself has made this statement in its opinions.

In their opinion, and as they wrote, “it is the carefully-crafted maps, and not the will of the voters, that dictate the election outcomes in a significant number of legislative districts and, ultimately, the majority control of the General Assembly.”

The judges concluded that the 2017 Redistricting Plan violate the Freedom of Speech and Assembly Clauses by discriminating on the basis of viewpoint. They went on to conclude that the Plans violate the Clauses for an independent reason. “In addition to forbidding discrimination, those clauses also bar retaliation based on protected speech and expression.” [pg. 329]. Furthermore, they concluded that “partisan gerrymandering claims are justiciable under the North Carolina Constitution” (pg. 341).

They ultimately concluded and ruled: “There is no reasonable doubt the 2017 House and Senate Plans are unconstitutional under the North Carolina Constitution, and the Court enjoins their use in the 2020 primary and general elections…..” (pg. 347)

The ruling went on to require:

“The Court will require that Remedial Maps for the House and Senate legislative district maps for the 2020 election (hereinafter “Remedial Maps”) be drawn (within 2 weeks), and that the Remedial Maps comply with the criteria adopted by the General Assembly’s House and Senate Redistricting Committees on August 10, 2017, with several exceptions, including the following:

(1) In redrawing the relevant districts in the Remedial Maps, the invalidated 2017 districts may not be used as a starting point for drawing new districts.

(2) “Election Data” criteria shall not be permitted in the drafting of the Remedial Maps. In other words, partisan considerations and election results data shall not be used in the drawing of legislative districts in the Remedial Maps. The Court likewise will prohibit any intentional attempt to favor voters or candidates of one political party.

(3) The Court will require Legislative Defendants and their agents to conduct the entire remedial process in full public view. At a minimum, that would require all map drawing to occur at public hearings, with any relevant computer screen visible to legislators and public observers. Given what transpired in 2017, the Court will prohibit Legislative Defendants (ie, Republican legislators) and their agents from undertaking any steps to draw or revise the new districts outside of public view.”

**** Reference::  Opinion of the NC General Court of Justice, Superior Court Division, Raleigh (September 3, 2019), which is 348 pages in length – https://big.assets.huffingtonpost.com/athena/files/2019/09/03/5d6ec7bee4b0cdfe0576ee09.pdf

The new maps were drawn up on September 17. They were reviewed and ratified by a court-appointed referee the same day. The non-partisan house legislative plan and map was ratified as H.B. 1020 and the non-partisan senate legislative plan and map was ratified as S.B. 692.

(3) North Carolina’s House of Representatives comprises 120 districts; North Carolina’s State Senate comprises 50 districts. The responsibility for drawing both congressional and state legislative district lines lies with the state legislature (NC General Assembly). District maps cannot be vetoed by the governor.

II.  THE LEGAL REQUIREMENTS FOR DRAWING UP DISTRICT MAPS FOR ELECTIONS 

As we all know, there are two general types of elections in our country – federal elections and state elections. The US Constitution and federal law provide the legal guidelines and requirements for drawing up districts for federal elections (ie, for US congressional districts). The state constitution and state laws provide the legal guidelines and requirements for state elections (for state house and senate districts).

A.  FEDERAL ELECTIONS & FEDERAL LEGISLATIVE REDISTRICTING

According to Article I, Section 4 of the US Constitution, the states and their legislatures have primary authority in determining the “times, places, and manner” of congressional elections. Congress may also pass laws regulating congressional elections.

The US Constitution provides:

The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of choosing Snators.” [Article I, Section 4]

Article I, Section 2 of the United States Constitution stipulates that congressional representatives be apportioned to the states on the basis of population. There are 435 seats in the United States House of Representatives. Each state is allotted a portion of these seats based on the size of its population relative to the other states. Consequently, a state may gain seats in the House if its population grows or lose seats if its population decreases, relative to populations in other states.

In 1964, the US Supreme Court ruled in Wesberry v. Sanders that the populations of House districts must be equal “as nearly as practicable.” This is where we get the general rule “One Person, One Vote.” In fact, the equal population requirement for congressional districts is strict. Any district with more or fewer people than the average, representing even a 1 percent deviation, will most likely be unconstitutional.

B.  STATE LEGISLATIVE REDISTRICTING —

The US Constitution is silent on the issue of state legislative redistricting. However, in the mid-1960s, the US Supreme Court issued a series of rulings in an effort to clarify standards for state legislative redistricting. In Reynolds v. Sims, the court ruled that “the Equal Protection Clause [of the 14th Amendment] demands no less than substantially equal state legislative representation for all citizens, of all places as well as of all races.”

The following is a list of recent redistricting bills that have been introduced in or passed by the North Carolina state legislature.

NC H717 – Judicial Elections Changes. “An Act to revise the judicial divisions; to make certain adjustments to the assignment of counties to the superior court, district court, and prosecutorial districts; to clarify listing of judicial seats on the ballot; and to limit rotation of superior… “ 6/28/2018: Ch. SL 2018-121

NC S209 – Nonpartisan Redistricting Commission. “An Act to establish a nonpartisan redistricting process……”   6/21/2018: Re-ref Com On Rules and Operations of the Senate

NC H927 – 2017 House Redistricting Plan A2. “An Act to realign the districts for the election of the members of the North Carolina house of representatives…..” 8/31/2017: Ch. SL 2017-208

NC S691 – 2017 Senate Floor Redistricting Plan (4th Ed.) “An Act to realign the districts for the election of the members of the North Carolina Senate…..”   8/31/2017: Ch. SL 2017-207

NC S692 – Adjourn August Redistricting Session & Reconvene. “A JOINT RESOLUTION adjourning the session reconvened pursuant to Section 2.1 of Resolution 2017-12, as amended by resolution 2017-14, and further amending RESOLUTION 2017-12.”   8/31/2017: Ch. Res 2017-15

NC H677 – Amend Who Can Serve on Three-Judge Panel. “An Act to provide that district court judges may be appointed to serve on three-judge panels for actions challenging the validity of Acts of the General Assembly…..” 4/21/2017: Passed 1st Reading

NC H735 – Redistricting by Computer. “An Act to amend the North Carolina constitution to establish an independent redistricting commission to redistrict via computer software programs utilizing politically neutral criteria to district….. “   4/13/2017: Ref To Com On Rules, Calendar, and Operations of the House

NC H674 – Independent Redistricting Commission. “An Act to amend the constitution to establish an independent redistricting commission…..” 4/11/2017: Ref To Com On Rules, Calendar, and Operations of the House

NC H714 – Fair Redistricting Study Committee. “An Act to create the Joint Legislative Study Committee on Fair Redistricting……” 4/11/2017: Ref To Com On Rules, Calendar, and Operations of the House

NC S554 – Fair Redistricting/Postmark & Absentee Ballots. “An Act to create the Joint Legislative Study Committee on Fair Redistricting and to provide that absentee ballots received by a county board of elections by mail on the day after the election that are not postmarked are deemed to have been postmarked……” 4/3/2017: Ref To Com On Rules and Operations of the Senate

NC H200 – Nonpartisan Redistricting Commission. “An Act to establish a nonpartisan redistricting process…..” 2/28/2017: Ref To Com On Rules, Calendar, and Operations of the House

Up until the case Common Cause v. David Lewis, no mention had been made of any state constitutional requirements to the process of state legislative redistricting. Litigation using this approach is just another desperate act of a dying political party to protect any power possible at the ballot box (power denied to Republicans for over 110 years). The Common Cause case, being unanimous in its opinion, opens a whole new line of litigation in the national battle over partisan gerrymanders.

Bob Phillips, executive director of Common Cause of North Carolina had this to say about the court ruling: “The court has made clear that partisan gerrymandering violates our state’s constitution and is unacceptable. Thanks to the court’s landmark decision, politicians in Raleigh will no longer be able to rig our elections through partisan gerrymandering.”

Here is an interesting question: If the NC state constitution requires non-partisan state legislative districts, as Common Cause and Democrats allege, why did the NC General Assembly feel the need to pass the 2017 law, NC H674. NC H674 (“Independent Redistricting Commission”) was intended to amend the NC constitution to establish an independent redistricting commission in order to guide the Senate Redistricting Committee in designing redistricting plans to ensure they are as non-partisan as possible.

III.  THE STATUS OF NC HOUSE and SENATE REMEDIAL DISTRICT MAPS —

Pursuant to the Common Cause v. David Lewis ruling of September 3 and its order to draw up new, non-partisan maps, the NC General Assembly, under the watchful eye and subject to approval of a court-appointed referee, adopted remedial maps on September 17. The non-partisan house legislative plan/map was ratified as H.B. 1020 and the non-partisan senate legislative plan/map was ratified as S.B. 692.

Republican leaders declined to challenge and appeal the ruling.

Speaking for the Republican members of the General Assembly, Senate leader Phil Berger said in a statement to Charlotte-based station WBTV: “The decision contradicts the Constitution and binding legal precedent…. Nearly a decade of relentless litigation has strained the legitimacy of this state’s institutions, and the relationship between its leaders, to the breaking point. It’s time to move on. To end this matter once and for all, we will follow the court’s instruction and move forward with adoption of a nonpartisan map.”

The reason for the decision not to challenge the ruling may be two-fold: First, under the new maps, the Republican party will continue to control a majority of both chambers of the General Assembly. And second, if Republicans had decided to appeal, there is really a good chance that the ruling would stand, given that Democrats control North Carolina’s Supreme Court.

Voters are urged to contact their county Boards of Election, or to review the maps provided by the General Assembly (online, see the Reference section for the links) to confirm which state districts they have been assigned to for the 2020 primaries and the 2020 general election.

IV.  POTENTIAL LEGAL CHALLENGE to the VOTING RIGHTS ACT of 1965 —

I think the climate is ripe for a legal challenge to Section 2 of the Voting Rights Act of 1965. Essentially, Section 2 mandates that district lines cannot be drawn in such a manner as to “improperly dilute minorities’ voting power.”

Section 2 of the Voting Rights Act of 1965 reads:

SEC. 2. No voting qualification or prerequisite to voting, or standard, practice, or procedure shall be imposed or applied by any State or political subdivision to deny or abridge the right of any citizen of the United States to vote on account of race or color.

In 1982, Congress examined the history of litigation under Section 2 since the bill’s passage and concluded that Section 2 should be amended to provide that a plaintiff could establish a violation of the section if the evidence established that, in the context of the “totality of the circumstance of the local electoral process,” the standard, practice, or procedure being challenged had the result of denying a racial or language minority an equal opportunity to participate in the political process.

First of all, the language of Section 2 is constitutionally vague, and has been so, under our political system. The truth is that African-Americans have been, and continue to be, almost completely identified with the Democratic Party. It is said that approximately 90% of African-Americans identify with the Democratic Party, if not higher. And so I say that the language of Section 2 is constitutionally vague because it assumes that any standard, practice, or procedure related to voting that affects African-Americans does so specifically and only because of the color of their skin. It makes no room for the possibility that a particular law, practice, procedure, standard, etc that affects them has the goal of addressing a political party or political views, just as it would affect others of the same political persuasion, and NOT to affect them because of their skin color. A “just” law must make room for legitimate reasons for its passage.

And so, I believe Section 2 should be amended accordingly.

Section 2 should be amended to provide that a plaintiff could establish a violation of the section if the evidence established that, in the context of the “totality of the circumstance of the local electoral process,” the standard, practice, or procedure being challenged had the primary or sole purpose, as well as the intended objective, to deny a racial or language minority an equal opportunity to participate in the political process.

Second of all, Section 2 provides a strong incentive to perpetuate racial stereotypes and racial victimization (ie, the “race card”) in voting.

Third, it offers a tremendous legal protection to the Democratic Party.

Here is my concern. The Voting Rights Act was drafted and passed to protect the voting rights of African-Americans. This was the piece of legislation specifically designed to address the many violations of African-American voting rights, as recognized and secured by the 15th Amendment. In fact, in 1980, the Supreme Court held that Section 2, as originally enacted by Congress in 1964, was a restatement of the protections afforded by the 15th amendment. [See Mobile v. Bolden, 446 U.S. 55 (1980)]. Under that standard, a plaintiff had to prove that the standard, practice, or procedure was enacted or maintained, at least in part, by an invidious purpose.

As mentioned earlier, at least approximately 90% of African-Americans identify with the Democratic Party. So in effect, because Section 2 protects African-Americans unconditionally, it protects the interests of the Democratic Party outright. Now, the over-all goal of re-districting, at least in our current time, is NOT to suppress black voting OR to give blacks special protection. It is race-neutral. It is concerned with party affiliation only. Only a moron would think otherwise. Yet that’s the position that Democrats and African-Americans routinely take. They take the position not because they know it to be true but because it’s politically expedient. They know that race matters; they know that racial challenges are taken seriously. They know that lawyers being turned out of today’s liberal law schools are indoctrinated in social justice and see it everywhere – even when it doesn’t exist. The true goal of re-districting is to draw up district maps in a way that favors the election of the reigning political party. “Elections Have Consequences.” Maps can be re-drawn by Republicans to disfavor registered Democrats and to favor Republicans, and that would theoretically be allowed. Similarly, if Democrats have the majority in General Assembly, they too can re-district to favor their party. And they have, when they were in power. This practice has been an accepted one since the end of the 1700’s.

But look at the situation through the lens of Section 2. If Republicans re-district and the group of voters (registered Democrats) affected happen to be white, then no harm no foul. The re-districting is permissible. The disgruntled white Democrats have no recourse. But if those same registered Democrats just happen to have black skin, then it’s a whole different ballgame, right? Suddenly they have a cause of action under Section 2. They immediately have a cause of action. They can sue the government body; they can challenge the restricted maps as being impermissible gerrymandering, And chances are that they will be successful in court.

But the truth is this: Republicans are not looking at skin color at all – only political party affiliation. Democrats are Democrats. A white vote for a Democratic candidate is no different from a black vote for a Democratic candidate. And so Section 2 of the Voting Rights Act, although passed for an honorable and a neutral purpose, as applied since the 1960s it is a strong legal tool that benefits only one political party – the Democratic Party. And so it is used exactly as such – as a legal tool to advance party interests.

Regarding Section 2 of the Voting Rights Act, I believe it is ripe for a legal challenge. In the alternative, the US Congress can alter its language, as suggested above. The purpose of the challenge or the amending of language must be to get rid of Section 2 as a political tool of the Democratic Party and to get rid of the baseless claims made for no other reason than to undermine the Republican Party or to perpetuate the false notion that racism exists insidiously in our country today.

 

References:

“Redistricting in North Carolina,” Ballotpedia. Referenced at: https://ballotpedia.org/Redistricting_in_North_Carolina

Rucho v. Common Cause (decision: June 27, 2019), Supreme Court Opinion. Referenced at: https://www.supremecourt.gov/opinions/18pdf/18-422_9ol1.pdf

Case Review, Rucho v. Common Cause (decision: June 27, 2019). Referenced at: https://ballotpedia.org/Rucho_v._Common_Cause

Rucho v. Common Cause (August 27, 2018), ruling from the District Court for the Middle District of North Carolina (lower federal court). Referenced at: https://electionlawblog.org/wp-content/uploads/MDNC-Opinion.pdf

Common Cause v. David Lewis (judgement, Sept. 3, 2019), NC General Court of Justice, Superior Court Division – Wake County. Court ruling referenced at:  https://big.assets.huffingtonpost.com/athena/files/2019/09/03/5d6ec7bee4b0cdfe0576ee09.pdf

Brennan Center for Justice, “A Citizen’s Guide to Redistricting,” Brennan Center for Justice. Referenced at: http://www.brennancenter.org/sites/default/files/legacy/CGR%20Reprint%20Single%20Page.pdf

“Redistricting Cases Heard by the Supreme Court of the United States,” Ballopedia. Referenced at: https://ballotpedia.org/Redistricting_cases_heard_by_the_Supreme_Court_of_the_United_States

House Bill 1020 (H.B. 1020), “2019 House Remedial Plan.” (Ratified Sept. 17, 2019). Referenced at: https://ncleg.gov/BillLookUp/2019/H1020

Remedial House Map (Non-Partisan Map) of Sept. 17, 2019 – https://webservices.ncleg.net/ViewBillDocument/2019/6558/0/HB%201020,%202nd%20Edition%20-%20HB%201020%202nd%20Edition

Senate Bill 692 (S.B. 692), “2019 Senate Consensus Nonpartisan Map.” (Ratified Sept. 17, 2019). Referenced at:  https://ncleg.gov/Sessions/2019/Bills/Senate/PDF/S692v4.pdf

Remedial Senate Map (Non-Partisan Map) of Sept. 17, 2019 – https://webservices.ncleg.net/ViewBillDocument/2019/6583/0/SB%20692,%202nd%20Edition%20-%20Senate%20Consensus%20Nonpartisan%20Map%20v3_11x17

 

APPENDIX I: GERRYMANDERING

The term “Gerrymandering” refers to the practice of drawing electoral district lines to favor one political party, individual, or constituency over another. When used in a rhetorical manner by opponents of a particular district map, the term has a negative connotation but does not necessarily address the legality of a challenged map. The term can also be used in legal documents; in this context, the term describes redistricting practices that violate federal or state laws.

The phrase “Racial Gerrymandering” refers to the practice of drawing electoral district lines to dilute the voting power of racial minority groups. Federal law prohibits racial gerrymandering and establishes that, to combat this practice and to ensure compliance with the Voting Rights Act, states and jurisdictions can create majority-minority electoral districts. A majority-minority district is one in which a racial group or groups comprise a majority of the district’s populations. Racial gerrymandering and majority-minority districts are discussed in greater detail in this article.

The phrase “Partisan Gerrymandering” refers to the practice of drawing electoral district maps with the intention of favoring one political party over another. In contrast with racial gerrymandering, on which the Supreme Court of the United States has issued rulings in the past affirming that such practices violate federal law, the high court had not, as of November 2017, issued a ruling establishing clear precedent on the question of partisan gerrymandering. Although the court has granted in past cases that partisan gerrymandering can violate the United States Constitution, it has never adopted a standard for identifying or measuring partisan gerrymanders.

There is more information on Gerrymandering at this link – https://ballotpedia.org/Gerrymandering#Partisan_gerrymandering

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How the Left Operates (How it has consistently used “race” to invalidate NC Voter ID initiatives)

VOTER FRAUD - I only got to vote once (Daily Haymaker)

(Photo Credit:  Daily Haymaker)

by Diane Rufino, March 2, 2019

North Carolina voters have tried for a long time now to enact a common-sense voter identification law. For years, they have suspected voter and election fraud, and so when groups like the NC Voter Integrity Project (founded by Jay Delancy, its president) and Project Veritas, and data analysts like Major David Goetze presented verified instances of such fraud (which the NC state Board of Elections refused to investigate and prosecute, and in fact, began to enact policies to prevent such groups and individuals from accessing public data to find the fraud), they went to the polls in great numbers to elect representatives who would finally once and for all, legislate on their behalf and address their legitimate concerns about the integrity and transparency of our elections.

North Carolina was the only state in the southeast not to have a Voter ID law.

In 2013, the Republican-majority NC General Assembly passed a strict Voter ID law (Act. 2013-381, HB 589, Part 2), to go into effect for the 2016 presidential election. It included a strict photo requirement to vote. In 2015, the law was challenged by the NC NAACP and other minority groups alleging that it was discriminatory to African-Americans. In anticipation of the lawsuit, the legislature met in an urgent session to revise the bill, making it a “non-strict” photo identification law (HB 836).

The district court upheld the revised Voter ID law, convinced that it was passed in furtherance of reasonable state interests in fraud-free elections. The NC NAACP and other groups appealed the ruling to the 4th Circuit Court of Appeals which struck the law down alleging that it was intentionally drafted and passed to target African-Americans and to diminish their voice at the ballot box.

In 2018, the Republican-dominated NC General Assembly passed a ballot initiative (HB 1092) to add a strict photo identification requirement to vote to the North Carolina state constitution. Voters would vote on the initiative (along with five other initiatives to amend the state constitution) in the November election. Despite a very strong campaign by the left, by the NAACP, by the Democratic Party, by the NC Bar Association, by the media (“North Carolina against tries to pass a Voter ID requirement to disenfranchise black voters), and others, including a scheme to confuse uninformed and ignorant Democratic voters who hadn’t even heard of any of the proposed amendments (“You must vote NO for all the amendments; they are the product of an illegal General Assembly!), the Voter ID amendment was approved by the voters.

In order to give life to the amendment, the General Assembly would need to enact legislation requiring verifiable forms of a photo ID in order to vote (a “strict photo ID” law). It would legislatively accomplish what the constitution now required. And so, on December 5-6, the General Assembly voted to approve Senate Bill 824 (SB 824), which listed the types of voter identification that would be accepted at the polls. [SL 2018-144 (2017-2018 session)]. The NC NAACP, headed by extreme race-baiter Rev. Anthony Spearman, held several press conferences articulating his delusion that North Carolina is like Alabama and Mississippi at the height of the civil rights era. They even held a rally outside the legislative building the first day of the vote.

On December 14, Gov. Roy Cooper vetoed SB 824 and House Speaker Tim Moore responded in a press statement by saying, “We are disappointed that Gov. Cooper chose to ignore the will of the people and reject a commonsense election integrity measure that is common in most states, but the North Carolina House will override his veto as soon as possible.”

And over-ride the veto they did. Before the new legislature was inaugurated (late January), and while Republicans still held a super-majority, they met and voted to over-ride Governor Cooper’s veto.

North Carolina finally… FINALLY had a Voter ID law. And not only that, they had a strict photo identification requirement to vote enshrined now in their state constitution.

The question was: How long before Democrats and liberals would challenge them and try to invalidate them. It was the question that almost every single person asked on election night and then when the General Assembly met in special session to pass the Voter ID law.

As it turned out, the first lawsuit was filed within hours after the General Assembly over-rode Governor Cooper’s veto of the Voter ID law, on December 19, 2018. The NC NAACP filed that lawsuit and Clean Air Carolina then joined in. The suit was filed against Speaker of the House Tim Moore, Senate Pro Tempore Phil Berger, and the State Board of Elections in Wake County Superior Court. [NAACP and Clean Air Carolina v. Moore and Berger (2018)]. The parties challenged two of the amendments (2 out of 4) that were adopted in November – the Voter ID amendment and the amendment capping the state income tax rate at 7% (lowering it from 10%).

In that lawsuit, the NCNAACP alleged that the NC general Assembly was improperly constituted in 2016, being the product of racially-gerrymandered state house and state districts, and therefore the amendment proposals adopted by that legislature for the November ballot were themselves tainted, were not the product of legitimate popular sovereignty, and therefore invalid acts. The NCNAACP asked the court to strike the amendments

Democrats have become all too predictable. As long as anything could be related to race, the race card would be used.

On Friday, February 22, Wake County Superior Court Judge G. Bryan Collins invalidated the amendments, The Voter ID amendment was passed by 55.49 % of NC voters and the amendment to limit the state income tax rate was passed by 57.35% of voters. In his ruling, Judge Collins agreed with the NCNAACP that the proposed amendments were passed by an “illegally constituted General Assembly” that was “not empowered to pass legislation that would amend the state’s Constitution.”

Collins further wrote the “unconstitutional racial gerrymander tainted” the three-fifth majorities in each chamber necessary to submit the amendments to voters. He said that amounted to “breaking the requisite chain of popular sovereignty between North Carolina citizens and their representatives….. An illegally constituted General Assembly does not represent the people of North Carolina and is therefore not empowered to pass legislation that would amend the state’s constitution.”

He struck down the two amendments. He declared them to be void.

The judge based his opinion on previous court rulings finding that the General Assembly had been elected using “illegally gerrymandered” district maps. What he conveniently ignored was the federal court ruling that ultimately allowed the maps to be used for the 2016 elections.

Rev. Spearman issued this press release following the ruling: “We are delighted that the acts of the previous majority, which came to power through the use of racially discriminatory maps, have been checked. The prior General Assembly’s attempt to use its ill-gotten power to enshrine a racist photo voter ID requirement in the state constitution was particularly egregious, and we applaud the court for invalidating these attempts at unconstitutional overreach.”

Most are attacking the ruling as an act of clear judicial activism. NCGOP chairman Robin Hayes told the News & Observer: “This unprecedented and absurd ruling by a liberal judge is the very definition of judicial activism.” And Sen. Ralph Hise commented that the judge clearly had “an axe to grind.” And in a statement issued to NC voters, Senate leader (Senate President Pro Tempore) Phil Berger wrote: “It’s yet another example of activist judges taking away your political power to suit their own liberal agenda.”

After the ruling was handed down, Berger posted his disgust on his Facebook page: “Your vote to add a Voter ID amendment to the state constitution was overturned on Friday by one Democratic judge in Wake County. One Democratic judge overruled two million voters—a majority—to toss out Voter ID in North Carolina. He absurdly argued that a voter ID constitutional amendment is unconstitutional.

He continued: “A single Democratic Wake County trial judge ruled that the entire North Carolina General Assembly was an unconstitutional usurper body for approximately 1 ½ years. The millions of votes cast by citizens and certified by the North Carolina Board of Elections could potentially be thrown out by one Democratic judge.”

In other words, the people of North Carolina essentially were without a government for almost two years. That is what the ruling essentially states.

Bryan Collins is a registered Democrat who has clear partisan leanings. He donated to the Kay Hagan campaign and has attended NAACP conventions. It’s hard to imagine he could be impartial in a case brought by the very group he saw fit to publicly support.

My first issue with the ruling is why Judge Collins concluded that the district maps (gerrymandering) had to have been drawn up based on the racial make-up of the voters. Why did he conclude “Race” when the district maps could have just as rationally been drawn up on account of “political identity”? Was it just because a racial minority group made the allegation? [I’m sorry, but I don’t buy the rationale in the Supreme Court decision Cooper v. Harris (2017); See Reference section].

This was the same question I asked when the 4th Circuit concluded that the changes to North Carolina’s voter laws were motivated primarily and overwhelmingly by racial animus – to intentionally suppress the African-American vote. Why did the court assume the General Assembly targeted them on account of skin color rather than on account of political identity? The Supreme Court has said that if a particular race happens to be impacted more than others by a voter ID law that is neutral on its face, than it would be permitted. It concluded that requiring photo identification to vote poses no reasonable burden to an individual right to vote.

Here are some statistics about North Carolina voters in that the NC General Assembly was able to consider in their re-districting plan: In 2016, 22% of all registered (active) voters in North Carolina were African-Americans. (That matches exactly the demographics in the state, with 22.1% of the population being African-American). Furthermore, exactly half of all registered Democrats in 2016 in North Carolina were African-American.

If you take these statistics together, it is seems quite obvious that almost all African-Americans identify as Democrats. It also seems quite obvious that the Democratic Party in North Carolina relies very heavily on the African-American community for votes.

So, if African-Americans identify almost exclusively (certainly overwhelmingly, well over 90%) with the Democratic Party, how does a judge in all honesty, conclude that district maps were drawn based on skin color and not on political identity. Isn’t “political identity” or “party affiliation” the more pertinent identifier ?

In 2016, the General Assembly drew up new district maps. A federal court (the US District Court for the Middle District of North Carolina), found the 28 of the 170 legislative districts (house and senate) and 2 of the congressional districts were improperly racially gerrymandered (black voters were drawn together in districts). The General Assembly addressed the concerns but they didn’t quite overcome the deficiencies. The 3-judge panel of judges, however, acknowledged that “there is insufficient time, at this late date, for: the General Assembly to draw and enact remedial districts; this Court to review the remedial plan,” and so, they allowed the maps to remain in place for the 2016 election. (The legislature would have to amend the maps in the 2017 session).

At some point during or after 2017, the maps would no longer be struck down by the courts as “racially” gerrymandering but rather as “partisan” gerrymandering. When the state legislature’s district maps could no longer be challenged as “racial” gerrymandering, they then began to challenge them as “partisan gerrymandering. That is, the districts were drawn to favored Republicans. Mind you, the courts are well-aware that the Supreme Court has never struck down a districting plan because it is partisan in design. But precedent has never stopped the liberal North Carolina courts. (See the Appendix at the end of the article).

The maps drawn up in 2016 and used in the 2016 election continued to provide a possible legal angle for disgruntled and racially-obsessed Democrats. The courts have been their friend in the past and they would use them again.

To understand why the NC NAACP brought its lawsuit against the Republican-majority General Assembly based on a racial allegation, we need to look at districting authority, federal law, and court precedent. We will see that the lawsuit was pure political strategy, taking advantage of outdated federal law and court decisions that still believe the United States and southern states in particular are still obsessed with white supremacy and motivated by animus and discriminatory intent when it comes to its African-American population. We will see that this is the favored approach of progressives who use the liberal courts to achieve what it can’t with duly-enacted legislatures and other governing bodies.

Each state legislature is tasked with drawing up district lines, or district maps. District lines for US congressional districts and for both state house and senate districts must be re-drawn every 10 years following the completion of the US census. The party holding the majority in the state legislature at the time re-districting maps are to be re-drawn has the benefit of drawing those district lines to its advantage. Nothing in the state constitution of North Carolina requires that re-districting be done on a non-partisan basis. In fact, for so many years, while Democrats have held the majority in both houses in the NC General Assembly, they have drawn maps to favor their party, including focusing on race since it is a strong indicator of Democratic support.

North Carolina has 13 US congressional districts (for its 13 representatives in the US Congress), it has 120 NC house districts, and 50 NC Senate districts. The NC General Assembly is alone responsible for drawing up all these maps/districts and they are NOT subject to approval by the Governor. In other words, the maps drawn up by the Redistricting Committee is not subject to being vetoed by the Governor.

In drawing up district maps, the federal government mandates that districts must have nearly equal populations to comport with the US Constitution and notions of democracy. The rule that election districts contain equal populations is the essence of the general idea of “One Person, One Vote,” which was emphasized by the Supreme Court in 1962 (Baker v. Carr). It means that a person’s vote counts equally no matter where he casts his vote. Civil Rights laws further mandate that district maps must not discriminate on the basis of race or ethnicity. It is OK to discriminate based on the white color of one’s skin, it is OK to discriminate based on affluence (or lack thereof), and it is OK to discriminate based on political affiliation. The courts have always tolerated partisan gerrymandering (even when district maps assume no reasonable shape at all) but they do not tolerate racial gerrymandering.

Hence we are starting to see why the allegation of “racial” gerrymandering was made. Partisan gerrymandering will not guarantee a favorable challenge and outcome. An allegation of “racial” gerrymandering will.

This is how the Democratic machine works.

Anyway, Senate leader Phil Berger has filed an appeal on behalf of the Republican legislative leaders, calling Judge Collin’s ruling an “absurd decision.” His full announcement read: “We are duty-bound to appeal this absurd decision. The prospect of invalidating 18 months of laws is the definition of chaos and confusion. Based on tonight’s opinion and others over the past several years, it appears the idea of judicial restraint has completely left the state of North Carolina. Rest assured, our lawyers will appeal this ridiculous ruling, but it’s yet another example of activist judges taking away your political power to suit their own liberal agenda.”

Republicans contend Collins’ reasoning jeopardizes dozens of laws.

Here is what the appeal by the Republican legislators argues: (i) Judge Collins disregarded the fact that a federal court had allowed the 2016 election to proceed using the challenged districting maps; (ii) If Collins’ ruling should stand, then essentially the state had no government for almost 2 years (2017-2018). Yet residents were still required to pay taxes to it; (iii) If Collin’s ruling should be permitted to stand, then it would invalidate all the laws of that “illegal legislative session – anarchy; and (iv) To allow Collins’ ruling to stand would create chaos and further litigation in North Carolina.

In the meantime, Sen. Berger appealed to Judge Collins to stay his order striking down the amendments (stay = “put on hold”) while he and fellow Republican leaders file their appeal with the state appellate court, but he refused. The case will most likely reach the state Supreme Court. Currently, the seven-member body is composed of at least five registered Democrats, but Governor Cooper will have the opportunity to appoint one more associate justice, to fill the vacancy on the court caused by his appointment of Associate Justice Cheri Beasley to Chief Justice. It will no doubt be another Democrat, bringing the total to 6 Democrat justices.

A statement by Sen. Berger after the ruling by Judge Collins perhaps describes it best: “All North Carolinians, regardless of party, should be concerned by this lawlessness, because it’s only a matter of time before a judge comes for their preferred legislative policies. Judge Collins is calling the legislature a usurper body while himself usurping the will of millions of North Carolinians who voted to amend their own constitution.”

The one redeeming quality about this ruling is that we can now see all so clearly how liberal-minded, overreaching judges tend to bend the Constitution for progressive purposes and how they use their positions on the bench to disregard the democratic process and un-do the will of the people.

So what does this mean for the honest and decent and well-meaning citizens of North Carolina who want transparent elections in their state? What does this mean for the honest and decent and well-meaning North Carolinians who, despite what Spearman says, do not live their lives seeing things in terms of black and white, who enjoy living side-by-side with persons who don’t look exactly like themselves, and who simply are concerned about the integrity of the NC election process? What does this mean for the majority of North Carolinians who have pressured their state government to address voter fraud and potential voter fraud since 2010?

The good news is that the Voter ID law (SB 2018-144) passed by the General Assembly in December is still good – at least for now. It is a stand-alone bill, not tied by language to the constitutional amendment, and passed by members of the General Assembly of both parties (with two Democrats joining Republicans in the House and one joining Republicans in the Senate). The equipment is not in place yet to provide a free photo ID to those who can’t afford one or who otherwise can’t obtain one, but should be in time for the next election cycle.

The appeal has been filed by Senate leader Phil Berger and House Speaker Tim Moore and we should soon find out if Judge Collins’ judicial order will stand or be overturned. If the order invalidating the amendments is upheld, there may be a lawsuit to challenge the Voter ID law as the product of an illegally-constituted General Assembly but to move forward under that theory would potentially mean that every single piece of legislation and every decision made could also be challenged in court. My guess is that such a lawsuit won’t be filed.

For now, North Carolina has a strict Voter ID law in place. The only thing the NCNAACP has done is to manufacture a crisis of racism that doesn’t exist and to be successful in convincing a lower state court judge to issue one of the grossest acts judicial activism in recent history. There should be no place in North Carolina for the NCNAACP.

 

References:

Voter ID law – SB 2018-144 (2017-2018) – https://www.ncleg.gov/BillLookup/2017/S824“NC Judge Invalidates Two Constitutional Amendments Passed by Voters Last Fall,” NC Family Policy Facts, February 25, 2019. Referenced at: http://my.ncfamily.org/site/MessageViewer?em_id=5207.0&dlv_id=9084

Gary Robertson, “Judge Strikes Down North Carolina Voter ID OK’ed by Voters,” The Washington Post, February 22, 2019. Referenced at: https://www.washingtonpost.com/politics/judge-strikes-down-north-carolina-voter-id-okd-by-voters/2019/02/22/0cfd1a98-3708-11e9-8375-e3dcf6b68558_story.html?utm_term=.24d45d7283d2

”Voter ID History,” National Conference of State Legislatures. Referenced at: http://www.ncsl.org/research/elections-and-campaigns/voter-id-history.aspx

Rebecca Trippett, “NC in Focus: Who are NC’s Democratic Voters?” UNC Carolina Demography, October 2, 2016. Referenced at: https://demography.cpc.unc.edu/2016/10/07/nc-in-focus-who-are-ncs-democratic-voters/

“Federal Judges: Racially-Tainted General Assembly Districts Must Be Redrawn,” WRAL, August 11, 2016. Referenced at: https://www.wral.com/federal-judges-racially-tainted-general-assembly-districts-must-be-redrawn/15920846/

Adam Liptak, “Justices Reject 2 Gerrymandered North Carolina Districts, Citing Racial Bias,” The New York Times, May 22, 2017. Referenced at: https://www.nytimes.com/2017/05/22/us/politics/supreme-court-north-carolina-congressional-districts.html

VIDEO: “How Gerrymandering Got its Name.”   https://www.youtube.com/watch?v=8BWVDUpEaNM

VIDEO: “Crash Course on Re-districting.” https://www.youtube.com/watch?v=MnhFm5QVVTo

NAACP and Clean Air Carolina v. Moore and Berger, COMPLAINT –

https://www.southernenvironment.org/uploads/words_docs/Complaint_-_Usurpers_FINAL_-_pdf.pdf [Notice how the NAACP refers to Republican leaders as “Usurpers”]

NAACP and Clean Air Carolina v. Moore and Berger (2018), OPINION – https://www.southernenvironment.org/uploads/words_docs/doc03389420190222171503.pdf

Ariane de Vogue, “Supreme Court Blocks Court Order to Redraw North Carolina Congressional Districts,” CNN, January 19, 2018. Referenced at: https://www.cnn.com/2018/01/18/politics/north-carolina-supreme-court-redistricting/index.html   [US Supreme Court voted 7-2 to freeze (ignore) a lower federal court ruling that struck down North Carolina’s congressional districts, holding that it amounted to an unconstitutional partisan gerrymander. The order makes it likely, although not certain, that the controversial maps will be used for the 2020 election. In January 2018, a three-judge panel of the 4th Circuit Court of Appeals agreed with the lower district court and held that North Carolina’s 2016 plan was enacted “with the intent of discriminating against voters who favored non-Republican candidates” and that the plan violated the First Amendment by “unjustifiably discriminating against voters based on their previous political expression and affiliation.” Partisan gerrymandering had been permitted by the Supreme Court and lower courts in the past, assuming that politics was always involved in the drafting of maps. The lower district court had ordered the NC General Assembly to enact a remedial redistricting plan by January 24, 2019. The Supreme Court voted to freeze that court order and, at least for now, to allow the maps to remain in place for the next election. The order comes as the Supreme Court is also considering two other partisan gerrymander cases – one from Maryland and the other from Wisconsin. It is likely that should it take those cases, the NC case will be re-considered along with the other two. If the Supreme Court agrees to hear the cases, it will be the first time that the high court takes up the issue of “when is partisan gerrymandering too extreme” (so as to offend notions of fairness). The court will address the question of whether or not standards for partisan gerrymandering can be determined and applied].

Voter ID Laws by State, Ballotpedia. https://ballotpedia.org/Voter_identification_laws_by_state

“Redistricting and the Supreme Court: The Most Significant Cases,” National Commission of State Legislatures (NCSL), July 9, 2018. Referenced at: http://www.ncsl.org/research/redistricting/redistricting-and-the-supreme-court-the-most-significant-cases.aspx

Those cases:

Baker v. Carr, 369 U.S. 186 (1962). For the first time, the court held that the federal courts had jurisdiction to consider constitutional challenges to state legislative redistricting plans. The Court held that a federal district court had jurisdiction to hear a claim that this inequality of representation violated the Equal Protection Clause of the Fourteenth Amendment.

Gray v. Sanders, 372 U.S. 368 (1963). The Court established the constitutional standard for equality of representation as “one person, one vote.”

Karcher v. Daggett, 462 U.S. 725 (1983). Congressional districts must be mathematically equal in population, unless necessary to achieve a legitimate state objective.

Shaw v. Reno, 509 U.S. 630 (1993). Legislative and congressional districts will be struck down by courts for violating the Equal Protection Clause if they cannot be explained on grounds other than race. (While not dispositive, “bizarrely shaped” districts are strongly indicative of racial intent).

Cooper v. Harris, (2017). Partisanship cannot be used to justify a racial gerrymander.

**** I always thought that it was odd the Courts did so, since: (i) it is the manipulation of district maps for partisan purposes that is the real concern in elections, and (ii) all too often, racial identity and political identity are the same.

 

APPENDIX I: Gerrymandering in North Carolina (since 2016)

In November 2010, the Republican party gained control of both houses of the North Carolina General Assembly. Republicans hadn’t had control of both houses since 1896, when the party successfully fused with the Populist Party. Republicans first gained control of the state house in 1998 but they have been unable to gain control of the state senate since 1896. Prior to the 2010 election, corrupt Democratic Senate leader Marc Basnight and corrupt House Speaker Joe Hackney controlled the state’s government. Basnight led the Senate for a record 18 years. The mandate for the newly-elected Republican majority was to end the corruption, to set a priority to live within a smaller more responsible budget (the state faced an estimated $3 billion deficit), and to enact a Voter ID bill.

Elections have consequences. Obama said this many times after he won, and in fact, the Supreme Court has recognized this common-sense truth in reviewing election matters.

The push-back against Republicans began immediately.

The following is taken directly from the “FACTS” section of the Complaint filed by the NCNAACP. It lays out the series of lawsuits against the North Carolina General Assembly (N.C.G.A.) with respect to the district maps.

The Unconstitutional N.C.G.A:

(1) The N.C.G.A. is comprised of 50 Senate seats and 120 House of Representative seats pursuant to the Constitution of the State of North Carolina, Art. II, §§ 2, 4.

(2) In 2011, following the decennial census, the N.C.G.A. redrew the boundaries of North Carolina legislative districts for both the NC Senate and the NC House of Representatives. The districts were enacted in July 2011.

(3) The N.C.G.A. unconstitutionally and impermissibly considered race in drawing the 2011 legislative maps, resulting in legislative districts that unlawfully packed black voters into election districts in concentrations not authorized or compelled under the Voting Rights Act of 1965.

(4) On November 4, 2011, the NC NAACP joined by three organizations and forty six individual plaintiffs filed a state court action that raised state and federal claims challenging the districts as unconstitutionally based on race. Dickson v. Rucho, 766 S.E.2d 238 (N.C. 2014), vacated, 135 S. Ct. 1843 (2015) (mem.), remanded to 781 S.E.2d 404 (N.C. 2015); vacated and remanded, 198 L. Ed. 2d 252 (U.S. 2017) (mem.), remanded 813 S.E.3d 230 (N.C. 2017).

(5) On May 19, 2015, plaintiffs Sandra Little Covington et al, filed a parallel challenge in federal court alleging that twenty-eight districts, nine (9) Senate districts and nineteen (19) House of Representative districts, were unlawful racial gerrymanders in violation of the Equal Protection Clause of the Fourteen Amendment of the United States Constitution. Covington v. North Carolina, 316 F.R.D. 117 (M.D.N.C. 2016).

(6) In August 2016, the three-judge federal district court panel unanimously ruled for plaintiffs, holding that “race was the predominant factor motivating the drawing of all challenged districts,” and struck down the twenty-eight (28) challenged districts (nine Senate districts and nineteen House districts) as the result of an unconstitutional racial gerrymander. See Covington v. North Carolina, 316 F.R.D. 117, 124, 176 (M.D.N.C. 2016), aff’d, 581 U.S. ––––, 137 S.Ct. 2211 (2017) (per curiam).

(7) On June 5, 2017, the United States Supreme Court summarily affirmed the lower court’s ruling that the twenty-eight (28) challenged districts were the result of an unconstitutional racial gerrymander, North Carolina v. Covington, 581 U.S. ––––, 137 S.Ct. 2211, (2017) (per curiam). On June 30, 2017, a mandate was issued as to the U.S. Supreme Court’s order affirming the lower court’s judgment.

(8) The United States Supreme Court, however, vacated and remanded the lower court’s remedial order for a special election, ordering the lower court to provide a fuller explanation of its reasoning for the U.S. Supreme Court’s review. North Carolina v. Covington, — U.S. —, 137 S. Ct. 1624 (2017) (per curiam).

(9) On remand, the three-judge panel granted the N.C.G.A. an opportunity to propose a new redistricting plan to remedy the unconstitutional racial gerrymander. Covington v. North Carolina, 283 F.Supp.3d 410, 417–18 (M.D.N.C. 2018). In August 2017, the N.C.G.A. submitted a proposed remedial map, drawn by Dr. Thomas Hofeller, the same mapmaker the General Assembly had hired to draw the 2011 invalidated maps. Dr. Thomas redrew a total of 11 of the 170 state House and Senate districts from the 2011 unconstitutionally racially-gerrymandered maps. Id. at 418.

(10) After reviewing the General Assembly’s remedial plan, the three-judge panel determined that a number of the new districts put forward by the N.C.G.A. in its 2017 remedial plan were essentially continuations of the old, racially gerrymandered districts that had been previously rejected as unconstitutional and either failed to remedy the unconstitutional racial gerrymander or violated provisions of the North Carolina Constitution. Id. at 447-58. For those defective districts, the three-judge panel adopted remedial districts proposed by a court

appointed special master. Id. at 447-58. The United States Supreme Court affirmed the districts adopted by the three-judge panel, except for certain districts in Wake and Mecklenburg Counties that had not been found to be tainted by racial gerrymanders, but were drawn in alleged violation of the state constitutional prohibition against mid-decade redistricting.   North Carolina v. Covington, 138 S.Ct. 2548 (2018).

(11) In order to cure the 2011 unconstitutional racial gerrymander, the remedial maps redrew 117 legislative districts.

(12) In November of 2018, elections for all N.C.G.A. seats were held based on the redrawn districts, the first opportunity that voters had had since before 2011 to choose representatives in districts that have not been found to be the illegal product of an unconstitutional racial gerrymander.

(13) Since June 5, 2017, the N.C.G.A. has continued to act and pass laws.

Reference: NAACP and Clean Air Carolina v. Moore and Berger, COMPLAINT –https://www.southernenvironment.org/uploads/words_docs/Complaint_-_Usurpers_FINAL_-_pdf.pdf [Notice how the NAACP refers to Republican leaders as “Usurpers”]

Additional Gerrymandering History (Background of a Possible Upcoming Supreme Court case) –

In 2017, two congressional district maps, one for congressional district 1 and the other for congressional district 12, were challenged as being racially gerrymandered, and the district and appellate courts agreed. It was appealed to the US Supreme Court, which also affirmed on May 22, 2017. The high Court agreed that the districts in question were improperly racially gerrymandered and sent the case back to the district court for a suitable remedy. The district court ordered the General Assembly to draft remedial maps for use in the 2018 election cycle, which it did. And the court approved them. (So all is OK with the 2018 elections)

Those same district maps were then challenged as being improperly partisan gerrymandered. In 2017, a federal district court and held that North Carolina’s 2016 plan was enacted “with the intent of discriminating against voters who favored non-Republican candidates” and that the plan violated the First Amendment by “unjustifiably discriminating against voters based on their previous political expression and affiliation.” Partisan gerrymandering had been permitted by the Supreme Court and lower courts in the past, assuming that politics was always involved in the drafting of maps. The Supreme Court has always been of the understanding (the rightful expectation) that “elections have consequences.” The lower district court had ordered the NC General Assembly to enact a remedial redistricting plan by January 24, 2019. The ruling was appealed.

In January 2018, a panel of 3 federal judges affirmed the lower court ruling and declared the congressional district maps to be unconstitutional, being the product of partisan gerrymandering – that is, the maps were drawn to unfairly favor Republican candidates. (“The Republican-dominated state’s House map violated the First and 14th Amendments by unfairly giving one group of voters – Republicans – a bigger voice than others in choosing representatives”). The ruling was appealed to the Supreme Court.

On January 19, the US Supreme Court voted 7-2 to freeze (ignore) the lower federal court ruling,. The order makes it likely, although not certain, that the controversial maps will be used for the 2020 election. The order comes as the Supreme Court is also considering two other partisan gerrymander cases – one from Maryland and the other from Wisconsin. It is likely that should it take those cases, the NC case will be re-considered along with the other two. If the Supreme Court agrees to hear the cases, it will be the first time that the high court takes up the issue of “when is partisan gerrymandering too extreme” (so as to offend notions of fairness). The court will address the question of whether or not standards for partisan gerrymandering can be determined and applied].

In August 2018, the same three-member panel of judges reached essentially the same conclusion that it had in January – that NC’s district maps were unconstitutionally gerrymandered to favor Republicans. The Supreme Court had never struck down a state district map based on partisan gerrymandering. However, the ruling sets up a delicate tactical question for the Supreme Court, particularly since two other states have had their districting maps challenged as well as being improper partisan gerrymandering.

 

APPENDIX II: Why the NC NAACAP Filed the Lawsuit

In short, the NC NAACP is an extreme racist group, believing the white community has one interest only – in keeping the black community down, disadvantaged, poor, and suppressed at the ballot box. It believes that the primary object of white legislators is to plot and scheme on how to do all of the above, especially to suppress the black vote. Whites = bad. Blacks = victims. Whites = Republican. Blacks = Democrat. It’s president, T. Anthony Spearman, has spoken often, with racism dripping from his lips, about how white legislators still cling to the Jim Crow mentality of the post-Reconstruction era and “meet in their lily-white caucuses” to “enshrine racism” in the state’s laws and most recently, to enshrine it in the state’s constitution. His organization will do anything, and has done everything in its power (ie, to cry “racism” about everything that the legislature does), to prevent a voter ID law from being enforced in North Carolina and to keep the notion alive that it has no other purpose than to suppress the black vote.

In filing the lawsuit, Spearman commented: “The supermajority’s proposed amendments to the North Carolina constitution represent the greatest threat to our state’s democratic institutions since the Civil War.”

As usual, Spearman shows his utter ignorance of history and his willingness to distort history to further his ambitions. It was the Republicans in government (in power) that first gave blacks access to state democratic institutions and then to national democratic institutions. It was a Democrat, a slavery-supporter named Roger Taney (Chief Justice Roger Taney), who wrote the opinion in the infamous Dred Scott case (1857) that held that the United States never intended for persons of African descent to be included in the body politic (ie, to be considered as citizens) and hence, they could never be entitled to any protections under the US Constitution. In short, Mr. Dred Scott had no legal right even to bring his lawsuit.

It was the Democratic party and Democratic leaders who plotted and schemed to enshrine racism in laws, state constitutions, institutions, policies, and practices, and who engineered the social arraignment that was state-sponsored segregation (Jim Crow) to keep the races separated, implying that one race was superior to the other. It was Democratic Senators who filibustered in 1965 to prevent the passage of civil rights legislation. It was Republican Congressional leaders who banded together to break the filibuster and get the legislation passed.

If Spearman had any understanding or appreciation of history, he would know that Republicans aren’t the enemy of the black community. They aren’t the party that assumes that blacks are less intelligent, less capable, far less disadvantaged, incapable of making decisions on their own, incapable of competing in the workforce, incapable of supporting themselves, etc and hence government must take care of them. The Republican Party is the party of true equality, and all that it mean and all that it requires.

 

APPENDIX III: Why the NAACP Alleged the Income Tax Amendment to be Unconstitutional

The reason was provided in the Complaint filed by the NCNAACP:

“The income tax cap constitutional amendment harms the NCNAACP, its members, and the black community and its ability to advocate for tis priority issues. Because the amendment places a flat, artificial limit on income taxes, it prohibits the state from establishing graduated tax rates on higher-income taxpayers and, over time, will act as a tax cut only for the wealthy. This tends to favor white households and disadvantages people of color, reinforcing the accumulation of wealth for white taxpayers and undermining the financing of public structures (ie, public services) that benefit non-wealthy people, including people of color. For example, historically in North Carolina, decreased revenue produced by income tax cuts in the state has resulted in significant spending cuts that disproportionately hurt public schools, eliminated or significantly reduced funding for communities of color, and otherwise undermined the economic well-being of the non-wealthy.”

[In other words, the black community has nowhere achieved what the white community has achieved in NC, and because the black community has not achieved what the white community has achieved, the black community is entitled to what the white community earns. It makes no difference that the income tax cap amendment is absolutely neutral in its language and free from racial consideration. The black community is entitled to the wealth earned by others, which according to the NCNAACP, is earned almost exclusively by the white community].

Here is my question: Since the Reconstruction era, and especially after 1896, the NC state legislation has been in the hands of Democrats. Since blacks make up only about 22% of the population in the state, the only way that Democrats could have been elected and have continued to maintain control of the state government is if a large percent of voters were white. Democrats have held majorities and supermajorities for over 100 years, so if Spearman is complaining about the historic disadvantaged status of blacks in North Carolina, doesn’t it make sense that that’s because of the 100 years or so of Democratic government? Of Democratic policies? Republicans haven’t had the majority so it wasn’t their policies that have kept blacks so disadvantaged, so illiterate, so economically-depressed, etc. Maybe it was the white Democrats who are the real racists? In any case, it was Democrats, Democratic rule, and the long history of Democratic rule in North Carolina that have given rise to the status of blacks in the state.

Reference: NAACP and Clean Air Carolina v. Moore and Berger (2018), OPINION – https://www.southernenvironment.org/uploads/words_docs/doc03389420190222171503.pdf

 

APPENDIX IV. Why Clean Air Carolina joined the Lawsuit

Clean Air Carolina’s issue is not with the amendments at all. It is with having too many Republicans in government. This is what they said: “If the legislature is successful in its power grab it will have dire consequences for citizens in the voting booth, for our communities and the air we breathe, and for our basic democratic institutions. This is not our typical lawsuit but the proposed ballot measures would impact our ability to fulfill our mission by limiting the voice that North Carolinians have in state policy, particularly on urgent environmental issues.”   [Translation of “the voice that North Carolinians have in state policy”: They obviously mean that conservatives don’t count as North Carolinians. They are only concerned about Democratic residents of NC].

“This legislature has carried out extraordinary attacks to strip fundamental clean air and clean water protections that North Carolinians have been assured of for decades, breaking with our state’s long history of bipartisan support for environmental safeguards. At the moment we are poised to re-establish fair representation that will accurately reflect voters on environmental issues, they have attempted a desperate and unlawful power grab.”

In short, Clean Air Carolina honestly believes that Republicans have no interest in the environment. Hence, if they can help get rid of Republicans legislators, they would happily do so.