A judicial coup, unconstitutional gerrymandering or checks or balances?
Published August 25, 2022
By Tom Campbell
The North Carolina Supreme Court has opened Pandora’s box with their 4-3 decision on Voter ID. In Greek mythology Pandora’s curiosity led her to open a container entrusted to her husband, unleashing what we today call “a can of worms.”
Let’s go back to 2011, the beginning of this saga. Republicans had taken control of the legislature, wresting it away from almost a century of Democratic control. One of their major tasks for that year’s legislative session was drawing new congressional and legislative districts, required after every census.
The 2011 congressional and legislative redistricting was immediately challenged by lawsuits. Space doesn’t permit a full blow-by-blow, but the congressional districts were rejected by the courts, forcing those maps to be redrawn both in 2016 and 2018. In August 2016, a federal court found 9 state Senate districts and 19 state House districts were unconstitutional but allowed the approaching November elections to go forward, since there wasn’t time before the election to redraw them.
It was this two-year legislative session that put forth the idea of a public referendum on a constitutional amendment to require a photo ID before casting a ballot. In order to put this amendment before voters it was necessary to obtain a three-fifths affirmative vote by both legislative chambers, which was accomplished. Even before the amendment was approved opponents asserted the referendum should never have been held because the resolution was passed by an illegally constituted legislature.
The recent NC Supreme Court decision affirmed, by a 4-3 vote, that the amendments were indeed put forth illegally. Immediately Republicans leveled charges of “blatant judicial activism and misconduct,” “a judicial coup,” the “contradiction to the rule of law,” and “subverting the will of North Carolina voters.” Democrats testified it was the perfect illustration of how checks and balances are supposed to work and had there not been “surgical precision” racial targeting, and unconstitutional gerrymandering we would not be where we are today.
Opponents of the court decision say it shouldn’t matter whether or not the legislature was illegally constituted because state voters approved the amendment (and a separate income tax cap amendment) by a large margin.
Here’s my spin: I voted for the Voter ID amendment and would do so again because I believe it prevents fraud and increases security. This issue would not be so emotional today and would have been implemented years ago had our legislators been willing to get input and cooperation from all factions before passing enabling legislation to implement the amendment. Instead, their attempts appeared discriminatory toward Black voters and two court cases keep it from being implemented four years later.
The framers of our constitution were wary of putting too much power in too few hands and thus designed the three branches of government to ensure checks and balances in the administration and execution of government. Let us agree than none of the three is perfect and there have been instances where each has acted improperly. To those who now claim that we have judicial activism or legislating from the bench I would reply that courts would probably not be so involved had there been more bipartisan cooperation. I find the checks and balances comforting.
That said, this month’s Supreme Court vote was totally partisan. The four affirmative votes were from Democrats and all three negative votes came from Republicans on the high court. Once again proving that justice has become partisan and demonstrating that North Carolina’s process for the selection of judges, especially appellate court judges, is badly flawed. Just because voters don’t take the time to know the judicial candidates for whom they vote is not a sufficient rationale for requiring the political affiliation of judicial candidates on the ballot.
It is understandable that some disliked the court verdict, however some of the bombastic, angry, incendiary and near-threatening responses, especially from high-ranking elected officials and even justices are inexcusable. It continues the notion that we can say anything we want about anyone or anything without recrimination or recourse. Perhaps this explains why a so-called vigilante group has put a “bounty” on the heads of a dozen Mecklenburg County judges or why elected officials in Asheville have received “writs of execution” for their decisions. We deserve better from our public officials. They should set a better example and join in resounding condemnation for those who make such threats. How can we expect better conduct from the citizenry if those in office don’t behave? Have we lost all semblance of civility, decency and propriety?
But the original sin running throughout this issue is gerrymandering and before I hear that Democrats did it when they were in charge, let me repeat what mother always said when I tried that argument: “Just because Billy jumps off a cliff doesn’t mean that you should.” When are we ever going to deal with this practice that divides us, creates ill will, continues discrimination and is bad public policy?
I hear Benjamin Franklin’s voice. Walking out of Independence Hall on the final day of the Constitutional Convention of 1787, a bystander asked, “Doctor, what have we got, a republic or a monarchy?” The sage statesman is reported to have said, “A republic, if you can keep it.”