The State Courts Fight Back09-09-2019
By Roger Berkowitz
In June the United States Supreme Court in Rucho v. Common Cause refused to intervene in two cases that considered constitutional challenges to political gerrymandering in North Carolina and Maryland. The Court found the Congressional maps to be “highly partisan, by any measure,” and “blatant examples of partisanship driving districting decisions.” And the Court held that “partisan gerrymanders are incompatible with democratic principles.” And yet, the Court refused to overturn the gerrymandered districts. Gerrymandering, the Court held, was a political question beyond the reach of the Federal Courts.
In its decision, the Court bemoaned its powerlessness to stop excessive partisan gerrymandering and emphasized that its decision in no way condones what it took to be anti-democratic and wrongful actions by the North Carolina and Maryland State Legislatures. But while the Federal Courts were powerless to intervene to overturn the actions of state legislatures, even the anti-democratic gerrymandering by state legislatures, the Court held that “[t]he States . . . are actively addressing the issue on a number of fronts,” and “[p]rovisions in state statutes and state constitutions can provide standards and guidance for state courts to apply.”
The appeal to the principle of Federalism and the multiplication of powers throughout the United States Constitutional system is precisely the kind of constitutional thinking Hannah Arendt celebrates as the true innovation of the United States Constitution. For Arendt, the only way to fight the potential tyranny of democratic power is through the multiplication and division of powers. The “fateful blunder of the men of the French Revolution consisted in their almost automatic, uncritical belief that power and law spring from the selfsame source.” In contrast, in the United States, it was the”great good fortune of the American Revolution” that the “people of the colonies, prior to their conflict with England, were organized into self-governing bodies, that the revolution—to speak the language of the eighteenth century—did not throw them into a state of nature,” and that they had multiple, subordinate, and conflicting “subordinate authorities” and “duly authorized bodies—districts, counties, townships.” What the United States had, by their great good fortune, was a local and state powers that were preserved by the new Federal Constitution. For Arendt, this Federal system of distributed, disbursed, and disaggregated powers is “the only way not to be trapped in the vicious circle” of democratic tyranny. The genius of the American Constitution was, she argued, its Federalist principle of separating and multiplying powers.
At a time in which the growth of the American Presidency, the retreat of the Congress, and the accumulation of national power are at their Zeniths, a return to federalist powers at the heart of the American experiment may be the best way to preserve America’s founding revolutionary spirit. If this is true, the experience of North Carolina’s response to the extreme partisan gerrymandering by its legislatures is exemplary. In North Carolina, the Federalist principle came to life in the case of Common Cause v. Lewis decided by the North Carolina Supreme Court last week. The North Carolina Court, considering highly partisan gerrymandering maps like those considered by the Supreme Court, held that the North Carolina Constitution makes such Gerrymandering unconstitutional. Specifically, the Court relied on Article I, section 10 of the North Carolina Constitution declares that “[a]ll elections shall be free.” As the Court argues:
While the turn to Federalism is one way to fight against democratic tyranny, it is important to note that there are arguments within U.S. Constitution that also could justify a similar rejection of partisan gerrymandering. Article I, Section 2 of the Constitution requires that the “House of Representatives shall be composed of Members chosen every second year by the People of the several States”; and Article III, Section 4 guarantees “to every state…a Republican form of Government.” The Supreme Court could have used these provisions to invalidate what it and every fair observer recognized to be a wrongheaded and anti-democratic effort by state legislators to protect their partisan advantages. Because the Court refused to do so, we must depend upon the states.
24. The Free Elections Clause, Article I, § 10, is one of the clauses that makes the North Carolina Constitution more detailed and specific than the federal Constitution in the protection of the rights of its citizens. Corum v. Univ. of N.C. ex rel. Bd. of Gov’rs, 330 N.C. 761, 783, 413 S.E.2d 276, 290 (1992). The federal Constitution contains no similar counterpart to this declaration, although several other states’ constitutions do….
26. The North Carolina Supreme Court has long recognized the fundamental role of the will of the people in our democratic government. “Our government is founded on the will of the people. Their will is expressed by the ballot.” People ex rel. Van Bokkelen v. Canaday, 73 N.C. 198, 220 (1875).
27. In particular, the North Carolina Supreme Court has directed that in construing provisions of the Constitution, “we should keep in mind that this is a government of the people, in which the will of the people--the majority--legally expressed,
(citing N.C. Const. art. I, § 2).
28. Therefore, our Supreme Court continued, because elections should express the will of the people, it follows that “all acts providing for elections, should be liberally construed, that tend to promote a fair election or expression of this popular will.”Id. “[F]air and honest elections
666, 673, 26 S.E. 132, 134 (1896).
29. Our Supreme Court has elevated this principle to the highest legal standard, noting that it is a “compelling interest” of the State “in having fair, honest elections.” State v. Petersilie, 334 N.C. 169, 184, 432 S.E.2d 832, 840 (1993). As to this there is little room for debate; the Court has recognized that “there is also agreement as to the compelling government interest in ensuring honest and fair elections.” Id. (citing Burson v. Freeman, 504 U.S. 191, 198-99, 112 S. Ct. 1846, 1851-52 (1992)).
30. In giving meaning to the Free Elections Clause, this Court’s construction ofthe words contained therein must therefore be broad to comport with the following Supreme Court mandate: “We think the object of all elections is to ascertain, fairly and truthfully, the will of the people--the qualified voters.” Hill v. Skinner, 169 N.C. 405, 415,
31. As such, the Court concludes that the meaning of the Free Elections Clause is
that elections must be conducted freely and honestly to ascertain, fairly and truthfully, the will of the people. This, the Court concludes, is a fundamental right of the citizens enshrined in our Constitution’s Declaration of Rights, a compelling governmental interest,and a cornerstone of our democratic form of government.
32. The Court now turns to the issue of whether extreme partisan gerrymandering of legislative districts run afoul of the mandate of the Free Elections Clause by depriving citizens of elections that are conducted freely and honestly to ascertain, fairly and truthfully, the will of the people.
33. At its most basic level, partisan gerrymandering is defined as: “the drawing of legislative district lines to subordinate adherents of one political party and entrench a rival party in power.” Ariz. State Legislature, 135 S. Ct. at 2658.
34. The danger of partisan gerrymandering is that it has the potential to violate“the core principle of republican government . . . that the voters should choose their representatives, not the other way around.” Id. at 2677; see also Powell v. McCormack, 395 U.S. 486, 540-41, 89 S. Ct. 1944, 1974 (1969) (“[T]he true principle of a republic is, that thepeople should choose whom they please to govern them.” (quoting Alexander Hamilton in 2Debates of the Federal Constitution 257 (J. Elliott ed. 1876))). Moreover, it can represent“an abuse of power that, at its core, evinces a fundamental distrust of voters, serving the self-interest of the political parties at the expense of the public good.” LULAC v. Perry, 548 U.S. 399, 456, 126 S. Ct. 2594, 2631 (2006) (Steven, J., concurring in part and dissenting in part) (quotation and citation omitted).
35. Partisan gerrymandering operates through vote dilution—the devaluation of one citizen’s vote as compared to others. A mapmaker draws district lines to “pack” and “crack” voters likely to support the disfavored party. See generally Gill, 138 S. Ct. 1916. The mapmaker packs supermajorities of those voters into a relatively few districts, in numbers far greater than needed for their preferred candidates to prevail. Then the mapmaker cracks the rest across many more districts, spreading them so thin that their candidates will not be able to win. Whether the person is packed or cracked, his vote carries less weight—has less consequence—than it would under a neutrally drawn (non- partisan) map. See id., 138 S. Ct. at 1935-36 (Kagan, J., concurring). In short, the mapmaker has made some votes count for less, because they are likely to go for the other party. Rucho, 2513-14 (Kagan, J., dissenting).
36. Seen in this light, it is clear to the Court that extreme partisan gerrymandering—namely redistricting plans that entrench politicians in power, that evince a fundamental distrust of voters by serving the self-interest of political parties over the public good, and that dilute and devalue votes of some citizens compared to others—is contrary to the fundamental right of North Carolina citizens to have elections conducted freely and honestly to ascertain, fairly and truthfully, the will of the people.
37. Extreme partisan gerrymandering does not fairly and truthfully ascertain the will of the people. Voters are not freely choosing their representatives. Rather, representatives are choosing their voters. It is not the will of the people that is fairly ascertained through extreme partisan gerrymandering. Rather, it is the will of the map drawers that prevails.