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N.C. Supreme Court dissenters offer progressives hope



The 2014 elections in North Carolina were, on the whole, a tremendous letdown for the progressive-minded. But let's not overlook the fact that we won the most important contests on the ballot—seats on the N.C. Supreme Court.

The importance of these less-noticed, ostensibly nonpartisan races was brought home to me by the court's decision in Dickson v. Rucho, issued a few days before Christmas. This case involved the Republican gerrymandering of our state's congressional and legislative districts.

True, the court upheld the GOP's mess of race-based mapmaking by a 4-2 majority (one justice, appointed after arguments in the case were heard, didn't participate in the decision). The outcome was not a surprise—so how was it important?

The answer lies in the blistering dissent written by Justice Cheri Beasley and joined by Justice Robin Hudson. Beasley and Hudson are the two Democrats who were re-elected to the court in November, surviving tough Republican challengers. A third Democrat, Sam Ervin IV, was also elected, unseating a Republican incumbent.

I don't think I'm overstating it when I say that the Beasley-Hudson dissent—and the prospect that in a few years it may be the court's majority view—represents our state's best hope for escaping the electoral prison in which we find ourselves because of Republican gerrymandering.

The problem, of course, is that because of the way they gerrymander—specifically, they "pack" as many black voters as possible into about 20 percent of the districts while leaving the other 80 percent "bleached"—the Republicans are winning two-thirds of the seats in the General Assembly despite getting only about half of the popular vote.

That wouldn't be so terrible if Republican policies weren't so biased against minority and low-income communities, but they are.

Worse, the gerrymandering is self-perpetuating: If Republicans continue to win, they can continue to gerrymander, unless and until the popular vote goes overwhelmingly against them.

It's the same with congressional districts. The Republicans gerrymandered our U.S. House districts, and in 2014 they won 10 out of 13 seats with, again, roughly half the votes.

A Democratic governor can't stop the gerrymandering, because the governor has no power to veto an apportionment (redistricting) bill.

But the state Supreme Court can, except in the unlikely event of a federal or U.S. Supreme Court decision overruling them.

The state court can declare, as Beasley and Hudson did, that racial gerrymandering the way the Republicans do it violates the 14th Amendment to the U.S. Constitution and the state constitution and the federal Voting Rights Act of 1965. All three should protect minorities from exactly the kind of discrimination Republicans are practicing by their abuse of apportionment power.

So now, let's look again at the 2014 election results. Chief Justice Mark Martin, a Republican, was re-elected to an eight-year term with no serious opposition. Martin and the three holdover Republicans on the court—Bob Edmunds, Barbara Jackson and Paul Newby—were the four votes in favor of the Republican gerrymanders.

But the victories by Beasley, Hudson and Ervin assure that, barring some unforeseen health issue that would cause any of them to step down, at least three Democrats will be on the court (with Martin) through 2022. That is, long enough to vote against a potential next Republican gerrymander, post-2020 census.

And before that happens, North Carolina voters will have multiple opportunities to replace the other three Republicans in the 4-2 pro-gerrymandering majority. That's because Edmunds' term expires in 2016, Jackson's in 2018 and Newby's in 2020.

I'm assuming that Ervin, had he been on the court, would've voted with Beasley and Hudson. I can't be sure because judicial candidates aren't supposed to say, when they're running, how they'll vote on the issues that will come before them, and Ervin was mum.

But I've given him the benefit of the doubt because, between the majority opinion and the dissent, it wasn't a close call. The majority got it wrong. Beasley and Hudson were right.

Moreover, any new justice elected between now and 2022 will agree as long as he or she doesn't see a judge's job as helping Republicans elect Republicans. Legislative elections should reflect the will of the voters, not one party's muscle.

Which is why the dissenters warned, in blunt language, that the majority opinion so misstated the facts of the case—and so misconstrued U.S. Supreme Court precedents about racial gerrymandering that it risked creating "a stain of suspicion among the citizens of the state" about what their elected judges were doing.

Edmunds wrote the majority opinion, by the way, for which he can be held responsible—if he runs again—in two years. Right now, I'll just note that his reasoning was so superficial and unconvincing that he may have been signaling us that he doesn't believe it himself.

Maybe Newby—the "tough but fair" conservative elected in 2012 with $3 million from Republican backers—made him sign it? Much of the pro-Newby advertising money came from the Republican State Leadership Committee, which also paid for the Republican consultants who drew up the gerrymander maps in North Carolina.

This prompted the plaintiffs in Dickson to ask that Newby recuse himself. They included the state NAACP, the League of Women Voters of North Carolina and Democracy North Carolina, among others.

Newby refused and cast the deciding fourth vote.

The plaintiffs plan to appeal the state court's ruling in the federal courts. A similar case from Alabama was heard by the U.S. Supreme Court in November, with a ruling expected this spring.

This article appeared in print with the headline "Poetic justice."


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