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Redistricting in North Carolina: Democrats Find New Avenue of Attack Against Republicans
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.
Rucho v. Common Cause (decision: June 27, 2019), Supreme Court Opinion. Referenced at.
Case Review, Rucho v. Common Cause (decision: June 27, 2019). Referenced at.
Rucho v. Common Cause (August 27, 2018), ruling from the District Court for the Middle District of North Carolina (lower federal court). Referenced at.
Common Cause v. David Lewis (judgement, Sept. 3, 2019), NC General Court of Justice, Superior Court Division - Wake County. Court ruling referenced at.
Brennan Center for Justice, "A Citizen's Guide to Redistricting," Brennan Center for Justice. Referenced at.
"Redistricting Cases Heard by the Supreme Court of the United States," Ballopedia. Referenced at.
House Bill 1020 (H.B. 1020), "2019 House Remedial Plan." (Ratified Sept. 17, 2019). Referenced at.
Remedial House Map (Non-Partisan Map) of Sept. 17, 2019
Senate Bill 692 (S.B. 692), "2019 Senate Consensus Nonpartisan Map." (Ratified Sept. 17, 2019). Referenced at.
Remedial Senate Map (Non-Partisan Map) of Sept. 17, 2019
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
Go Back
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.
Rucho v. Common Cause (decision: June 27, 2019), Supreme Court Opinion. Referenced at.
Case Review, Rucho v. Common Cause (decision: June 27, 2019). Referenced at.
Rucho v. Common Cause (August 27, 2018), ruling from the District Court for the Middle District of North Carolina (lower federal court). Referenced at.
Common Cause v. David Lewis (judgement, Sept. 3, 2019), NC General Court of Justice, Superior Court Division - Wake County. Court ruling referenced at.
Brennan Center for Justice, "A Citizen's Guide to Redistricting," Brennan Center for Justice. Referenced at.
"Redistricting Cases Heard by the Supreme Court of the United States," Ballopedia. Referenced at.
House Bill 1020 (H.B. 1020), "2019 House Remedial Plan." (Ratified Sept. 17, 2019). Referenced at.
Remedial House Map (Non-Partisan Map) of Sept. 17, 2019
Senate Bill 692 (S.B. 692), "2019 Senate Consensus Nonpartisan Map." (Ratified Sept. 17, 2019). Referenced at.
Remedial Senate Map (Non-Partisan Map) of Sept. 17, 2019
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
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