Legislators are not dictators. U.S. Supreme Court must reinforce it
Published December 15, 2022
By Capitol Broadcasting Company
Legislative leaders Sen. Phil Berger and House Speaker Tim Moore – officeholders who just received (combined) barely 2% of the 3.8 million votes cast in the recent election -- believe what they say goes in North Carolina. No one can do anything about it – not the governor nor the state’s courts.
That’s the crux of the argument, through their lawyers, they presented to the U.S. Supreme Court on Wednesday.
They’ve latched onto a fringe legal theory, with few subscribers and plenty of doubters. The U.S. Constitution says: “The times, places and manner of holding elections for senators and representatives, shall be prescribed in each state by the legislature thereof.” The backers of the theory contend that means that no courts, governors, independent redistricting commissions or other state officials can do anything about a legislature’s actions concerning federal elections.
Beyond the state General Assembly’s leaders, who could think this is a good idea? It has no rationale – other than a blatant effort to grab power.
During the U.S. Supreme Court’s arguments on the case Wednesday, several justices pressed the legislature’s lawyer David Thompson, on just where the legislature got its authority.
What became clear is that the North Carolina legislature gets power and authority to act as granted in the State Constitution. Let’s get to the basics:
So, what kinds of powers have “the people” extended to the legislature? The State Constitution’s clear: “The legislative power of the State shall be vested in the General Assembly.” And the State Constitution is specific about the relationship between the legislature and the courts. “The General Assembly shall have no power to deprive the judicial department of any power or jurisdiction that rightfully pertains to it as a co-ordinate department of the government.”
But that doesn’t mean that the State Constitution grants such powers exclusively to the General Assembly’s leadership.
We agree with Justice Jackson. The U.S. Constitution delegates to the “legislature” the job of redistricting. It is the State Constitution that gives the General Assembly the authority to deal with the matter. The State Constitution could, just as well, have given some other entity that authority.
Most significantly, the State Constitution – the voice and authority of the people -- gives our courts the job of examining the work of the legislature. It is plain as the paper the words are written on.