I rarely enthuse about the language of judicial opinions. I’ve been reading them since I was twenty-one. And I’m an old man. Besides, judges are notoriously verbose, sinning against both Hemingway and Holmes. There isn’t usually much to lift up.
That said, I was greatly stirred by last week’s three-judge federal court ruling in the North Carolina legislative re-districting case (Covington). It was, once again, unanimous; joined by both Bush and Obama appointees. The opinion was written by Judge James Wynn of Robersonville. It showed.
Wynn explained that a special election at this late date – though merited to meet the depth of the knowing, intentional and continued constitutional transgressions – would raise unacceptable burdens to voter participation and turnout. Accordingly, an emergency plebiscite would not secure the vigorous contest needed “to return to the people of North Carolina their sovereignty.” Those last ten words say it all. Too long for a bumper sticker?
The federal judges rejected outright the General Assembly’s Orval Faubus-like assertion that its embrace of race discrimination should be deferred to as reasonable. “There is no ‘rational disagreement’ as to whether these districting plans violate the Constitution,” they said. The federal court of appeals had unanimously decided exactly that. The U.S. Supreme Court affirmed, without a single dissent. Senator Rucho and Representative Lewis’ contrary opinions, therefore, didn’t matter. Constitutional tortfeasors always have their excuses. And the legislature’s bullying doesn’t extend to the federal judiciary.
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Anita Earls, lead attorney for the plaintiffs, said, despite the rejection of a requested special election, she “took great encouragement from (the court’s) recognition of the severity of the violations” and the potent harm already inflicted on North Carolina’s tormented democracy. Recognizing “severity” almost understates the case.
“The districting plans at issue represent the most extensive unconstitutional racial gerrymander ever encountered by a federal court,” Judge Wynn concluded. The racially-imposed wrongs have persisted for over six years. North Carolina’s lame arguments for states’ rights, the court noted, were well worn, “same stuff, new day.” The “right to vote freely for the candidate of one’s choice is the essence of a democratic society,” Wynn said. “It is the bedrock of our political system.” It doesn’t depend on the grace of Phil Berger and Tim Moore.
The General Assembly has “interfered with the very mechanism by which the people confer their sovereignty ... and hold (their leaders) accountable,” Wynn wrote. It has, as a result, sought to override the founding premise of the United States. Even North Carolina Republicans can’t do that. They may not believe in the American promise of equality. But they’re required to obey it. The ultimate legacy of the civil war, oddly, isn’t Silent Sam. It’s the fourteenth amendment.
Of course, Judge Wynn is a careful, moderate jurist. When he spoke of “returning to the people of North Carolina their sovereignty,” he responded principally to the state’s “widespread, serious, and longstanding” race discrimination. When a citizen’s right to vote is debased, he is denied constitutionally adequate representation, becoming a “lesser” member. By tainting the actual consent of the governed, the legitimacy of the General Assembly itself is called into question.
For us, as citizens rather than litigants, the reassertion of our “sovereignty” presents even broader questions.
Do we, as participants in an ancient commonwealth, accept the operation of an apparent white people’s government, effectively excluding people of color from the considered constituency, as our own?
Are we consensual enablers of North Carolina’s path-breaking, cutting-edge war on the poorest and most economically disadvantaged Tar Heels in order to lavish more money on the rich?
Are our leaders’ experiments in the suppression of the marginalized – through bathroom bills and the repeated statutory endorsement of sexual orientation discrimination, part of our chosen idea of self-governance?
Does the destruction of the independence and integrity of our courts, our municipalities, and our universities, in blatant service of partisan power, meet the North Carolina Constitution’s insistence on holding inviolate “the sovereignty of the people?”
Will we cling so stubbornly to our affection for inequality that we become the only economically advanced society to exclude millions of our members from the health care system, leaving thousands of our brothers and sisters to die?
Will we reject our state’s historic, defining embrace of public education in favor of a vast array of unaccountable, divisive, discriminatory, government-funded religious schools – dissolving the necessary bonds of democratic cohesion in civic life?
Benjamin Franklin said famously, in 1787, we “have a republic if we can keep it.” We’re losing Franklin’s challenge in North Carolina.
Gene Nichol is Boyd Tinsley distinguished professor of law at the University of North Carolina.