Editorial: U.S. Supreme Court thwarts N.C. legislature's attack on democracy

CBC Editorial: Wednesday, June 28, 2023; editorial #8856

The following is the opinion of Capitol Broadcasting Company

To fully embrace how far off the rails the train wreck that is the North Carolina General Assembly and state Supreme Court are, look no further than Tuesday’s U.S. Supreme Court decision.

The court – with conservative justices John Roberts, Amy Coney Barrett and Brett Kavanaugh part of the 6-3 majority -- outright rejected the radical legal theory pushed by legislative leaders and state Chief Justice Paul Newby that state legislatures have unchecked power to set rules for federal elections and draw voting maps corrupted by partisan gerrymandering. It is the “independent state legislature” theory.

“The Elections Clause (of the U.S. Constitution) does not exempt state legislatures from the ordinary constraints imposed by state law,” wrote Roberts in his majority opinion which was also joined in by Justices Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson.

Newby has opined that the state constitution says “the General Assembly serves as the ‘agent of the people for enacting laws’ …a restriction on the General Assembly is in fact a restriction on the people themselves.” Is Newby saying he doesn’t care, nor should the courts, if voters are silenced by hyper gerrymandering? However, it is the role of the courts to determine if the legislature has acted within its Constitutional scope.

Has the legislature, in fact, acted as “the agent of the people” or as an agent of just some select people? Are its actions on behalf of special interests or those who, for example, happen to be affiliated with the Republican Party like Justice Newby and the legislative leadership?

The U.S. Supreme Court made abundantly clear Tuesday, where the courts come in.

The decision affirms one of the most basic principles established by the founders of our state and federal constitutions. There is a separation of powers between the legislative, executive and judicial branches of government. Each is a check to make sure the balance of power doesn’t fall too greatly on one. When applied appropriately, this system of checks and balances assures that power, in fact, rests with the people.

It means state legislatures – including the one in North Carolina – must follow the state and federal constitutions. It is the role of the state and federal courts to review legislative actions. It is up to the courts to determine if legislative actions meet constitutional muster and are acts on behalf of ALL the people. The voices of some voters aren’t muted because of their race or where they live. And, when legislatures fail or are unwilling to act appropriately, the courts can impose appropriate remedies.

With the decision in Moore v. Harper, the U.S. Supreme Court says radical theories aimed at narrowing rights of voters will not be tolerated.

But it won’t stop state courts, as the newly hyper-partisan state Supreme Court majority demonstrated in late April, from backtracking on earlier opinions to where the court protected the rights of all voters.

House Speaker Tim Moore, R-Cleveland, said as much in reaction to Tuesday’s decision. "Fortunately the current Supreme Court of North Carolina has rectified bad precedent from the previous majority, reaffirming the state constitutional authority of the NC General Assembly," Moore said. "We will continue to move forward with the redistricting process later this year."

All of which greases the skids for the legislative leadership – which includes the father of state Supreme court justice– to enact newly gerrymandered congressional and legislative districts that provide secure partisan majorities.

That stands in contrast to the state’s current congressional maps and the evenly split – seven Republicans and seven Democrats -- representation in the U.S. House of Representatives.

But with the opinion in Moore v. Harper, state courts won’t have the final say.

“State courts do not have free rein,” Chief Justice Roberts firmly put it. “State courts may not transgress the ordinary bounds of judicial review such that they arrogate to themselves the power vested in state legislatures to regulate federal elections.”

So, when the General Assembly, as expected, acts to reimpose congressional district maps to give the GOP at least a 10-4 majority, North Carolina’s high court won’t have the last word.

Those leading the General Assembly see themselves as omnipotent and answerable to a rubber-stamp state Supreme Court.

But in 1787 our nation’s founders saw it more clearly.

“What are Legislatures?,” Justice Robert quoted from the proceedings of the original Constitutional Convention in Philadelphia. “Creatures of the Constitution; they owe their existence to the Constitution: they derive their powers from the Constitution: It is their commission; and, therefore, all their acts must be conformable to it, or else they will be void.”

Tuesday’s decision is a critical affirmation of judicial review and a reminder to our state’s legislators to follow the Constitution.

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