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.

“This is a proposal that gets rid of the normal checks and balances,” said Justice Elena Kagan. Justice Samuel Alito questioned whether state judges who are elected in partisan elections should be trusted to assess the constitutionality of voting maps. “Do you think that it furthers democracy to transfer the political controversy about districting from the legislature to elected supreme courts where the candidates are permitted by state law to campaign on the issue of districting?”
Alito didn’t mention that it was Berger and Moore who pushed abandonment of the state’s non-partisan system for electing judges. Nor did he note that a 2018 effort to amend the State Constitution, essentially taking the authority to fill judicial vacancies away from the governor and requiring the nominees come from the legislature. It was defeated by a 2-to-1 vote.
Moore and Berger contend North Carolina’s Supreme Court had no authority to revise the highly partisan gerrymandered congressional districts they drew – that leaned so heavily Republican the party was likely to win 10 of the 14 seats. The map the court did impose, and was used in this year’s election, resulted in sending seven Republicans and seven Democrats to the U.S. House of Representatives – roughly reflecting the division of the total congressional election votes cast in the state.

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:

Where does the State Constitution get its power? Give it a read: “All political power is vested in and derived from the people; all government of right originates from the people, is founded upon their will only.” And, that same First Article states unambiguously “The legislative, executive, and supreme judicial powers of the State government shall be forever separate and distinct from each other.” The job of the legislature includes enacting laws.  The job of the courts includes determining whether the actions of the legislature are in accord with the State and U.S. constitutions.

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.”

The drafters of North Carolina’s Constitution were particularly wary of vesting a governor with too much authority. That is why North Carolina’s governor is among the weakest in the nation and the last to have any veto – granted in 1996 and in a very limited way. For example, veto powers don’t extend to voting district legislation.

But that doesn’t mean that the State Constitution grants such powers exclusively to the General Assembly’s leadership.

“What I don’t understand is how you can cut the State Constitution out of the equation when it is giving the state legislature the authority to exercise legislative power,” said Justice Katanji Brown Jackson.

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.