At the heart of American political dysfunction, and at the heart of what’s happened to North Carolina, is gerrymandering. With sophisticated technology and control of the redistricting process following a wave election in 2010, Republicans drew themselves districts that ensure their safety while ignoring the will of the people.
An article in Salon yesterday also suggests that gerrymandering led to the rise of Donald Trump and extremism in America. The piece clearly shows how North Carolina Congressman Mark Meadows, a product of the 2011 redistricting, used the extremists in Congress to overthrow Speaker John Boehner, dubbing him an insider and Washington hack who lacked conservative principles.
But it’s not Boehner and his allies who lack conservative credentials. It’s Meadows and his ideological soulmates in the North Carolina legislature who do. They’re radicals with an authoritarian bent. They don’t want limited government, they want total control of government.
In Washington, they’ve opted to shutdown government to get their way. They can’t pass a budget even though they control both houses of Congress. They’ve voted fifty times to repeal Obamacare and not once to fix it. And they’re doing this without any sort of broad mandate from voters but to appease their extremist base. As the Salon article noted, and as is true in North Carolina, more people voted for Democrats for Congress in 2012 than voted for Republicans.
In North Carolina, they’ve passed bills to limit the rights of the LGBT community, reduce women’s access to health care and abortions, and they’re slowly but surely dismantling the public school system. To ensure they keep control, they’ve expanded their gerrymandering from legislative seats to local and municipal districts, usurping the local control that true conservatives value. They aren’t operating with will of the majority. In 2012, the vote for legislative seats was evenly split between Democrats and Republicans but the GOP held veto proof majorities in both houses.
At the national level, the extremist rhetoric fired up a base that’s angry and disdainful of reliable conservatives. Donald Trump stepped into that void. In North Carolina, Republicans got Pat McCrory, a man with few principles and even fewer political skills. He turned out to be one of the most conservative governors in the country because of his inability to navigate the politics of Raleigh or to stand up to the extremists driving the legislature.
Someone recently said to me that the Founding Fathers intended legislative gridlock to control the pace of change in the country. That’s not quite true. They meant for change to come slowly through compromise. After long and arduous debate, the two sides would come together to reach agreement, and neither side would be entirely happy.
Today, we have gridlock where extremists hold Congress hostage, waiting for complete control instead of coming to agreement. In North Carolina, they got it. If they get it nationally, we’re in very scary territory.
Thomas Mills is the founder and publisher of PoliticsNC.com. Before beginning PoliticsNC, Thomas spent twenty years as a political and public affairs consultant. Learn more >
A partial explanation for why there has not been more of a challenge to the illegal splitting of counties in forming voting districts is that both the Republican Party and the Democratic Party have a strong interest in allowing the illegal gerrymandering to continue. Lawsuits cost right much money, ruling most of us out as plaintiffs. That doesn’t fully explain it, though, does it? I don’t know the answer.
No, the districts are illegal. The whole county provision requires multi-seat districts in order to not run afoul of the equal protection clause and the VRA. The NC Supreme Court in the case you cited references the ruling in the earlier Stephenson case in which the same court imposed a requirement that voting districts shall not be multi-member districts. That single-member district requirement is not a constitutional requirement; it is a creation of the Court which contradicts the NC Constitution. The districts as they are presently drawn are indeed illegal.
In a game if the referee fails to call a foul a foul, is it still a foul (albeit an uncalled one)? I say it is a foul regardless of whether the referee calls it. There is a reasonable argument either way, just as in the voting districts situation there is a reasonable argument that even though the districts violate the constitution they are still legal if the Court says they are legal.
So, why has there been no serious effort to legally challenge the current situation? Lack of plaintiffs? Lack of lawyers? Lack of finances for the effort?
From ballotpedia, it seems to say that a 2002 NC Supreme court case decided that multi-representative districts weren’t intended by the state constitution:
“This provision is known as the ‘Whole County Provision.’ (WCP) However, in 1981, the federal Justice Department ruled that this provision was inconsistent with the Voting Rights Act (VRA). The state thus ignored the Whole County Provision (WCP) until 2002. That year, the North Carolina Supreme Court ruled that the state constitution’s equal protection clause presumed single-member districts and was thus a limitation on the Whole County Provision (WCP).”
https://ballotpedia.org/North_Carolina_Constitution
more here http://caselaw.findlaw.com/nc-supreme-court/1339849.html
So, based on my reading of those sites this isn’t a current illegality, but would need to be brought up in the Supreme Court again to be overturned?
I agree that this could be seen as a judicial branch protecting the status quo in the legislative one, but the districts as they’re drawn aren’t presently illegal as the NC Supreme Court interprets the constitution, correct?
Looks like you nailed it, Ryan. Good work on the legal research.
Go back and re-read the case you referenced in your second link, the link which goes to a source of law (NC Supreme Court caselaw) rather than ballotpedia’s article (which is not law at all and might not have even been written by a lawyer – it is just someone interested in the subject’s lay opinion; a legitimate opinion, but not an expert opinion). In the case you linked the Court said that “[M]ultimember districts shall not be used in the formation of legislative districts unless it is established that such districts are necessary to advance a compelling governmental interest.” There are several such governmental interests, including complying with the NC Constitution’s mandate of undivided counties in the formation of voting districts (which serves the primary purpose of preventing gerrymandering), complying with the US Constitution’s equal protection clause (which also means complying with the “one-person, one-vote” requirement and complying with the Voting Rights Act itself), and of course complying with the equal rights provision of the NC Constitution (Art.1, Sec. 1). Equal protection and equal rights are strong governmental interests even without the constitutional mandates. The Court also said that counties may be divided for voting districts “only to the extent necessary to comply with federal law.” Since no federal law requires the division of counties for voting districts, this means that the Court effectively ruled that counties must not be divided in the creation of voting districts.
I never said they were or weren’t illegal. I’m not a lawyer. I just brought up what I thought they were saying and asked questions about it with caveats. My question is still unanswered: assuming these cross-county line districts are indeed illegal, the appropriate course of action would be what? Would someone need to bring a case against the NCGA explicitly on that basis?
Again, going on the assumption that the current districts violate the NC State Constitution, why was that not brought up within the case about racial bias in the districts*? If they were trying to strike down the districts as they are drawn, it would seem odd that they didn’t argue based on the Constitution’s WCP.
All I’m asking (again, as a non-lawyer) is, if the districts are illegal and there have recently been attempts to get them overturned, why was the apparently blatant fact that they’re in violation of the NC Constitution not cited by those arguing that case?
*I also realize that there is another confusion aspect of this, are the districts at odds here NCGA districts or US House districts? I realize that the NCGA draws both, but the US House were the ones mentioned and redrawn from a recent court case, does the WCP refer to both or just NCGA House and Senate districts?
The whole county provisions of the NC Constitution apply only to the NC General Assembly, not to federal seats.
Actually, I have not read all of the briefs (the written arguments) from those parties challenging the gerrymandering, so I don’t know if they cited the whole county provisions or not. I don’t know how to access the briefs online. I do know that anyone can go down to the NC Supreme Court clerk’s office and request a copy of the briefs. I have skimmed one lengthy brief in one of the cases in which the whole county provision is mentioned, but it has been months since I skimmed it. I can’t recall if it was in relation to federal seats or general assembly seats…
Thanks!
That does clear up some of the other bits as well. It would make sense that it wasn’t brought up if WCP doesn’t apply to the US House seats.
There isn’t a legal problem with the “fix” described above. (And yes, I am a lawyer.) There is a huge political problem with it. There is no need to divide the counties in order to create roughly equal representation. Wake County is so large that it would get 6 representatives. If we assume that the elections are staggered in half so that all 6 Wake seats would not be elected in the same election year but just 3 at a time, then the three top vote-getters would win the election. That means that any minority with a voting block of 25% plus 1 would get a representative. That means a third party (not Republican or Democrat) would have a good chance of electing a representative. Neither the Republican Party nor the Democratic Party want that, so that is the huge political problem with this “fix.” If all six seats were up for election in the same year, a minority with a voting block of 14.3% could elect the representative of their choice. That is not something the two major political parties want, hence we have illegal gerrymandering. This isn’t a knock on the political philosophies of either of two parties; it is just the way things work. The politicians in power, whoever they are, will want to stay in power. This “fix” makes it much easier for the voting public to replace those politicians in power, so those politicians will be opposed to this “fix.” What disappoints me is that our judiciary falls in line as politicians wanting to retain power rather than jurists who want to uphold the law.
Thomas,
Every time you write about gerrymandering you should mention that the NC Constitution outlaws gerrymandering for the NC general assembly. I haven’t noticed you mention it yet. The Voting Rights Act supports this ban on gerrymandering as well. Quoting the NC Constitution:
Art. II, Section 3 (3) “No county shall be divided in the formation of a senate district;”
Art. II, Section 5 (3) “No county shall be divided in the formation of a representative district;”
It isn’t hard to visualize that gerrymandering requires division of counties and forbidding this division of counties prevents gerrymandering. My point is that we already have a law against gerrymandering for the general assembly. More than just a law; we have a constitutional mandate outlawing gerrymandering for the general assembly. We simply ignore the law in order to gerrymander. We need for people such as yourself who write against gerrymandering to stop ignoring the law we already have in place forbidding gerrymandering. We need for you to publicize that the general assembly and the courts are ignoring or breaking the law in order to diminish competition for their jobs.
We need to hold our legislators and judges to the law instead of giving them a pass. We should be making noise about the illegal division of counties in the formation of senate and representative districts for the general assembly.
Federal one-man, one-vote court decisions require legislative districts to be of roughly equal population. This is virtually impossible without dividing counties in the legislative districting process. And as liberal like to point out when it suits their purposes, when there is an obvious conflict, federal law prevails over state law.
Ebrun – No, the districts are not required to be of equal population under federal law. That’s a myth. Each seat must roughly represent the same number of people. That means that if district A is twice as big as district B then district A gets 2 seats if district B gets one seat. That means an increase in minority representation, too. Rather than needing 50% plus one vote to elect someone to the seat, the voters in district B need only 33 & 1/3 % plus one vote to elect someone to a seat since the top 2 candidates are elected. The one-man, one-vote premise requires each seat to represent roughly equal population, not each district be of roughly equal population. There is no conflict here between federal and state law.
Oops – I reversed districts A & B above. (A was the larger district, not B).
It doesn’t seem equitable for some citizens to have two legislative reps while others would only have one. Does any state do it that way? And I still suspect there would need to be some “gerrymandering” to “roughly represent the same number of people” and not break up counties.
If you’re correct in your interpretation, why haven’t critics of modern day gerrymandering sought judicial intervention to enforce the Constitution? I suspect the issue is more complex legally than you assert.
If all “seats” have equal population and each receive one rep then they are equal. Therefore one area has double the population of another and receives two seats, while the one of the lesser population receives one seat, there is no inequity in the vote. (Of even more simply: a population of one get one seat; a population of two gets two seats.)
That may be true in theory, but it is obviously not the preferred method of legislative representation in practice. The objections are obviously political. but I suspect there would legal problems with such a scheme or otherwise it would be more prevalent.
Could you be more specific as to the legal problems? It seems fairly obvious that the concept cannot be discriminatory on its face.
I am not a legal expert. But as a long-time observer of American politics, I just suspect that there would be legal objections to the “fix” that has been suggested here. Otherwise, some erstwhile interest group unhappy with the current arrangement would have gone to court long ago to void the current gerrymandering.