Bad bill watch: The Left is pushing an extreme redistricting bill

• While there are a couple of bipartisan redistricting bills being considered in the General Assembly, leftist groups are pushing a more extreme bill
• The proposed constitutional amendments in the bill include superfluous provisions
• The makeup of the commission will largely be determined by unelected judicial bureaucrats

 

Common Cause v Lewis, a case challenging state legislative districts, is currently being heard in Wake County Superior Court. As it advances through the North Carolina court system over the coming months, the General Assembly will come under increasing pressure to enact some kind of redistricting commission law.

The two leading redistricting commission bills under consideration have bipartisan support in the General Assembly and have a chance of being passed into law. Several other bills in the legislature only have narrow support and none of them are likely to pass. However, one of those bills has been touted by the left-wing Democracy NC as a “gold standard citizens redistricting commission.” That makes it worth examining to get an idea of what kind of redistricting system progressives would impose if they had the power to do so.

 

Changing redistricting rules

The bill, SB 673, titled “N.C. Citizens Redistricting Commission,” is sponsored by Senators Erica D. Smith (D – Beaufort, Bertie, Martin, Northampton, Vance, Warren), Valerie P. Foushee (D – Chatham, Orange) and Terry Van Duyn (D – Buncombe). As with most of the other redistricting proposals in the General Assembly, this one includes amending the state constitution, which currently has four requirements:

• Roughly equal representation of districts.
• Contiguous districts;
• No dividing counties (subject to federal law and the US Constitution);
• Districts only drawn every ten years.

SB 673 alters those requirements, replacing them with “goals, in order of priority:”

• One person, one vote, to ensure each voter’s vote.
• Compliance with the Constitution of the United States, including the equal protection clause of the 14^th
• Compliance with federal law.
• Minimizing the number of split counties.
• All districts shall be contiguous.
• Minimizing the number of split municipalities.
• Compactness, to avoid elongated and irregularly shaped districts.
• Electoral impartiality. The commission shall not consider electoral results, political considerations, or incumbency in the preparation of a plan for senate districts, except to the extent necessary to comply with federal law.
• Minimizing the number of split communities of interest. Precincts shall not be split in the preparation of a plan for senate districts, except to the extent necessary to comply with federal law.

An unnumbered provision states that district maps drawn by a commission have the force of law and that districts are only drawn once every ten years.

The inclusion of items two and three are curious. The Supremacy Clause of the U.S. Constitution and the Due Process Clause in the 14th Amendment mean that anything in the NC Constitution is already subordinate to the U.S. Constitution and federal law. The “except to the extent necessary to comply with federal law” statement is equally superfluous. For example, the NC Constitution currently states that “no county shall be divided in the formation of a representative district.” However, some counties must be divided to comply with Reynolds v. Sims, in which the U.S. Supreme Court ruled that the 14th Amendment required “substantially equal state legislative representation for all citizens.”

So this is either a case of sloppy writing or whoever wrote the bill wanted to have those provisions so that plaintiffs in future lawsuits would have the option to pursue their cases in either state or federal court.

The power in the picking

A redistricting commission would also be enshrined in the North Carolina Constitution. “Any citizen” of North Carolina would be eligible to apply to the state auditor to be a member of the commission, although there are some restrictions, such as having never served in elected office or as a political appointee.

The real power in this process belongs to the Administrative Office of the Courts (AOC), which would condense the applications into a pool of 60 applicants, 20 from each of the two largest parties and 20 not affiliated with either of those parties. There is no requirement that the selection process be transparent, freeing court administrative officials to select whomever they find “reasonable.” Legislative leaders from the two major parties would pick four commission members from their respective party affiliation pools. However, that choice is limited by whatever criteria the AOC used to select those pools. If, for example, the AOC chose a list of 20 strident Democrats and 20 “reasonable” milquetoast Republicans, the selections made by party leaders would be largely meaningless. One commission member of each major party affiliation and all five unaffiliated members would be randomly selected by the AOC, although, once again, those would be chosen from the pool previously created by the AOC.

The commission would select district maps on a vote of a super-majority of at least nine members, including at least three of five of each affiliation (Democrat, Republican, other). On the surface, this appears to create a natural balance between the parties like that found in HB 69. However, previously noted the composition of the commission would potentially subject it to the same manipulation by party politics that California’s commission endured.

In the event that there is an impasse within the commission, they would appoint a special master who would have the sole power to draw all North Carolina districts. However, if the commission became deadlocked over districts, they just as easily can become deadlocked over the appointment of the special master (which also requires a super-majority vote).

For the excessive power granted to the unelected and unaccountable Administrative Office of the Courts and the role of a special master in the redistricting process, SB 673 is among the weaker redistricting commission bills being considered by the General Assembly.