State judiciary must protect NC from its power-hungry legislature

State judiciary must protect NC from its power-hungry legislature

- in Progressive Voices, Top Story

Among all the issues and challenges confronting North Carolina as 2022 gets under way – overcoming the pandemic, easing rural poverty, alleviating environmental threats, improving access to health care, on and on down the sobering list – it’s fair to say none is more urgent than shoring up our beleaguered public schools and strengthening citizens’ ability to participate meaningfully in our democracy.

And to those two perhaps we must add a third. That’s in light of lawsuits involving both public education and our system of elections now coming to a head before the state Supreme Court.

The challenge is this: For the state’s courts, as they interpret and enforce constitutional requirements, to maintain their independence and to keep the public’s overall well-being as a touchstone.

Consider the ongoing battle – yet another in a long and disappointing series – over voting district boundaries for seats in the U.S. House, the state House and state Senate. Voting rights advocates, understandably including many Democrats, claim the General Assembly’s Republican majority has engaged in gross gerrymandering of the districts so as to solidify the party’s power even when Democratic candidates collect roughly half the overall vote, as they typically have in recent years.

A lawsuit claiming that the maps are so distorted for partisan advantage that they must be thrown out as unconstitutional was tried in Raleigh this month before a panel of three Superior Court judges.

The judges – A. Graham Shirley and Nathaniel J. Poovey, both Republicans, along with Dawn M. Layton, a Democrat – acknowledged what was perfectly obvious: that the maps had been fashioned with the intent of locking in the GOP’s dominance in both the state’s congressional delegation and the legislature.

A similar panel in 2019, also considering complaints of extreme partisan gerrymandering, invalidated the maps then in effect. But this time, the judges ruled unanimously that the state constitution offers no basis for disallowing a gerrymander intended to disadvantage members and candidates of a party.

The redistricting process is inherently political, they said, and thus open to being manipulated for partisan purposes. They said there was no proper way for the courts to decide when such gerrymandering was so over the top as to be impermissible.

The ruling discounted findings that African-American voters would be particularly harmed by the new district configurations because Black candidates in some areas would be rendered uncompetitive by a skewing of the electorate. That could have been grounds for disallowing the maps, since racial discrimination in voting is supposed to be a constitutional no-no. But the judges said any effect on Black voting strength resulted from partisan, not racial, motives.

As the case proceeds to a hearing before the Supreme Court, scheduled for Feb. 2 with the year’s elections looming, a compelling argument in the plaintiffs’ behalf comes from Gov. Roy Cooper and Attorney General Josh Stein, both Democrats arguing from the moral high ground of voting rights advocacy.

On Jan. 21 they asked the court’s permission to file a friend-of-the-court brief explaining why the trial court judges were wrong to approve the gerrymandered maps and describing the harm inflicted on a system rooted in the concept of popular sovereignty — or as President Lincoln framed it, government of the people, by the people and for the people.

Heavy-duty gerrymandering “allows legislators, not voters, to control the results of elections by drawing districts to ensure that one party almost always wins the most seats — and, in some years, a disproportionately large supermajority of seats — without regard to the popular will,” Cooper and Stein say in the brief. “Drawing districts to further the interests of one party is fundamentally in conflict with a government founded ‘only’ on the will of the people.”

Further, they contend, courts are obliged to interpret the state constitution so as to make it more rather than less likely that voters have a meaningful chance to express their views. Simply being able to cast a vote doesn’t guarantee that the vote is meaningful if one’s preferred candidate doesn’t have a prayer of winning because of how the eligible voting population in his or her district has been shaped – i.e., purged of people with the same leanings.

Cooper and Stein go on to emphasize that courts must have the resolve to follow through on their long-standing prerogative to reject legislative acts as unconstitutional and to prescribe remedies. Coincidental or not, that same point is at the crux of the other monumental dispute now bearing down on the Supreme Court’s seven justices.

Back to the future

It was that same high court, vintage 1997, that proclaimed students must have the opportunity under the North Carolina Constitution to obtain a “sound basic” education in the state’s public schools. That’s an education not necessarily with all the bells and whistles one might find in a school district where money grows on trees. But it’s one that gives young people a fair chance to forge ahead into productive careers and to function as capable citizens – even if they live in communities disadvantaged by poverty.

As the case which gave rise to that ruling played out over the years, there came judicial findings that documented how far short of the mark many of the state’s school systems were falling. That’s when the courts began to assert their oversight authority to try to bring about improvements – especially in funds allocated to so-called low-wealth districts and to early-childhood programs. The legislature, holding tight to its power of the purse, made just enough additional investment to stay one jump ahead of the sheriff.

Finally, plaintiffs in the case – which is known by the surname of former Hoke County student Robb Leandro, now grown and practicing law in Raleigh – struck an agreement with state officials to have a school improvement game plan drawn up by outside consultants.

The plan called for some $8 billion in extra investment over eight years, not an exorbitant amount compared with the $10.6 billion single-year outlay for public education in the current state budget. Retired Superior Court Judge David Lee, a Union County Democrat assigned by the Supreme Court to oversee the case, approved the deal last June.

When the legislature, however, failed to provide enough money to get the plan up and running, Lee eventually decided to invoke the court’s authority to break the logjam. Last Nov. 10, he issued an order requiring some $1.7 billion to be channeled into education programs. That’s when a genuine crisis exploded.

Legislative chiefs insisted that under the constitution, only the General Assembly could decide how to spend state funds. A Republican-appointed official who was supposed to actually transfer the money, State Controller Linda Combs, went to court on the day before Thanksgiving seeking to have Lee’s order nullified. And on Nov. 30, a three-judge Court of Appeals panel did just that.

It was a 2-1 decision with two Republicans in the majority, Judges Chris Dillon and Jefferson Griffin, agreeing that Lee had wandered onto the legislature’s rightful turf.

The old heave-ho

Yet there’s a back story here. As Democratic Judge John Arrowood described in his dissent, the order’s proponents were given a bum’s rush.

Rather than simply allowing the order to remain on hold, where Lee had placed it, until an appeal by the legislature could be properly considered, the two majority judges summarily junked it. And they did so after telling parties to the case on Nov. 29 to respond to Combs’ petition the next day – the day when they then issued their ruling!

Arrowood put it this way: “…shortening the time for a response was a mechanism to permit
the majority to hastily decide this matter on the merits, with only one day for a response, without a full briefing schedule, no public calendaring of the case, and no opportunity for arguments and on the last day this panel is constituted. This is a classic case of deciding a matter on the merits using a shadow docket of the courts.”

Top legislative Republicans then sought on procedural grounds to prevent the plaintiffs from appealing. Attorney Melanie Black Dubis, lead plaintiffs’ counsel, filed a response brimming with righteous outrage.

“Unfortunately for the children of North Carolina,” Dubis wrote, “the majority panel of the Court of Appeals held that the judicial branch is effectively powerless under the Constitution to vindicate the rights of these children. Under the majority’s reasoning, the General Assembly can ignore the constitutional violations indefinitely by simply withholding the necessary funds. … Indeed, according to the majority, the children of this State must simply wait at least two more years for ‘the ballot box’ to decide whether they will finally have their constitutional rights vindicated.”

She went on to explain how the majority’s decision “thus raises a number of substantial constitutional questions of the utmost importance to the jurisprudence of this State.” Two of those questions:

  • “Whether the General Assembly’s authority to appropriate funds pursuant to Article V, Section 7 of the North Carolina Constitution overrides and renders meaningless the constitutional right to a sound basic education under Article I, Section 15 and Article IX, Section 2.”
  • “Whether the judgment of the General Assembly overrides the power of the judiciary to order a remedy for established constitutional violations that have persisted for over seventeen years.”

Surely matters of that gravity deserve consideration by the state’s highest court. And the court would do well to keep faith with its own record in seeking to uphold a standard of opportunity for the state’s students, especially those most vulnerable because of a chronic lack of resources. The N.C. Council of Churches is well aware that educational opportunities are crucial for young people trying to make their way in the world – and is aware also of our duty to help those who may struggle to help themselves.

Justice in the Leandro case in the end requires the courts to identify constitutional violations and to exert their authority to have them fixed. Judges must follow the law, but they also are bound to uphold the state’s obligation to protect the general welfare.

The same considerations arise, not coincidentally, as the dispute over partisan gerrymandering comes to a climax. Indeed, how can judges say that aggrieved citizens’ only recourse is the ballot box, when election schemes have been devised to undercut the power of their votes?

The time soon will come for the Supreme Court to make it crystal clear that when power-hungry politicians distort elections for their own benefit, the Judicial Branch must stand in the breach.

Steve Ford, former editorial page editor at Raleigh’s News & Observer, wrote this commentary for the North Carolina Council of Churches, which was first to publish it.