By Mitch Kokai
Critics argue that North Carolina’s new electoral maps violate key basic provisions of the state’s Bill of Rights. Those critics include the four Democrats serving on the North Carolina Supreme Court. They called the cards unconstitutional.
Read the provisions of the Declaration yourself in First article of the Constitution of the NC. You will get an idea of the distance between the legal arguments and the text of the document.
The Bill of Rights has 38 sections. Four sections play a role in this discussion.
Article 10 states: “All elections are free. Article 12 deals with the rights of assembly and petition. “The people have the right to assemble to consult one another for their common good, to instruct their representatives and to ask the General Assembly for the redress of grievances; but secret political societies are dangerous to the liberties of a free people and must not be tolerated.
Article 14 identifies two important freedoms. “Freedom of speech and of the press are two of the great bulwarks of freedom and should therefore never be restricted, but each person will be held accountable for their abuses.”
Article 19 contains two main provisions. The second concerns the debate on electoral maps. “No one shall be deprived of the equal protection of the laws; and no one shall be discriminated against by the state on the basis of race, color, religion or national origin.
Most of us subscribe to the concepts set out in Article I, Sections 10, 12, 14 and 19. But unless you have spent much of your life embroiled in electoral law disputes, you will probably ask yourself: what do these provisions have? to do with electoral maps?
It’s a good question. It is a difficult task for the challengers of the electoral map. They have to come up with an answer because they are using the judiciary of the state government to throw up voter cards they don’t like.
Critics say maps drawn for Republicans’ partisan advantage call into question the “free” nature of the state’s elections. The contested cards also infringe the rights of free speech and assembly, and they deny equal protection of the laws, the argument argues.
If these conclusions seem far-fetched to you, don’t worry. It’s not just your lack of sophisticated legal training. Count Chief Justice Paul Newby and his two Republican colleagues among those who spot a dubious constitutional interpretation.
During oral arguments in the Supreme Court on Wednesday, Newby responded to the claim that the cards “subvert the will of the people.”
“Why can’t you say that the will of the people is established by the precise language of the constitution? asked Newby. “The precise language of the constitution in Article II gives the General Assembly the power to redistrict, and it sets out the objective standards that must be used. Why is this not the will of the people?
Newby amplified his concerns in response to the court order rejecting the voter maps.
“I disagree with the court’s decision which violates the separation of powers by effectively placing responsibility for redistricting in the judiciary, not the legislature, as our constitution expressly provides,” Newby wrote. “As predicted by the United States Supreme Court, this Court’s decision results in an ‘unprecedented expansion of judicial power’.”
Since the constitution leaves electoral mapping to the legislature, the courts should be wary of interfering with the process, Newby argued.
“[A]Any power not limited by the Constitution belongs to the people,” he wrote, citing 60-year-old court precedent. “The people act through the General Assembly. Since the General Assembly serves as the “agent of the people for the enactment of laws”, a restriction on the General Assembly is in fact a restriction on the people themselves.
Newby accused his fellow Democrats of abusing the state constitution’s clauses on free elections, free speech, freedom of assembly and equal protection.
“In the opinion of the majority, it is this Court, rather than the people, who hold the power to change our constitution,” Newby added. “Thus, the Majority by Judicial Order amends the plain text of Article I, Sections 10, 12, 14 and 19 to empower the courts to oversee legislative redistricting power resulting from complaints of partisan gerrymandering. Such an action constitutes a manifest usurpation of the sole authority of the people to amend their constitution.
For the Chief Justice, the Democratic majority of the court plays the role of usurper, “seizing the opportunity to advance its program”. “There is no express provision of the constitution supporting the majority decision; there is no evidence that the redistricting plans adopted are unconstitutional beyond a reasonable doubt. A summary statement by the majority to the contrary does not make it so.
It would be difficult to find a clearer case of the overthrow of the will of the people.
Mitch Kokai is senior policy analyst for the John Locke Foundation.
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