(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.
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
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.