by Dr. Andy Jackson
Director of the Civitas Center for Public Integrity, John Locke Foundation
The United States Supreme Court has already ruled equal representation of counties in state legislatures to be unconstitutional.
A bill in the General Assembly would amend the state constitution so that counties would be equally represented in the North Carolina Senate.
House Bill 376 would amend the North Carolina Constitution so “each senator shall represent two counties.” It would also lift the current ban on the General Assembly redrawing districts mid-decade. The bill is sponsored by representatives Jay Adams (R – Catawba), Karl Gillespie (R – Cherokee, Clay, Graham, Macon), Keith Kidwell (R – Beaufort, Dare, Hyde, Pamlico), and Carson Smith (R – Onslow, Pender)
The idea behind the bill is hardly new. It would create a form of incongruent bicameralism, which “occurs when the two legislative chambers differ in their political composition.”
Some scholars also see having different ways of representing people, instead of across-the-board simple majoritarianism, to be a positive feature of bicameral legislatures:
Having a second chamber may allow other principles of representation to be applied that represent the diversity of the state. For example, a second chamber may structure representation through territorial units (e.g. states, provinces or regions…
And, of course, that is how the United States Congress is organized, with states represented proportionately in the House and equally in the Senate. The founders saw incongruent bicameralism befitting our nation. Hamilton or Madison wrote in Federalist 62:
If indeed it be right, that among a people thoroughly incorporated into one nation, every district ought to have a PROPORTIONAL share in the government, and that among independent and sovereign States, bound together by a simple league, the parties, however unequal in size, ought to have an EQUAL share in the common councils, it does not appear to be without some reason that in a compound republic, partaking both of the national and federal character, the government ought to be founded on a mixture of the principles of proportional and equal representation.
HB 376’s sponsors allude to that comparison with the bill’s short title: “Little Federal Model NC Edition.”
Despite those arguments in favor of counties’ equal representation in the North Carolina Senate, such equal representation will not happen, nor should it.
While North Carolina is a relatively large and diverse state, it does not rise to the level of the Federalists’ “compound republic.” Counties are not states. Unlike states, they are creations of the legislature without sovereignty. So the argument in Federalist 62 in favor of giving equal representation in the United States Senate to the people of North Carolina and New York cannot be applied to giving equal representation in the North Carolina Senate to the people of Tyrrell and Mecklenburg counties.
(While states admitted into the union later were created by Congress, they inherited the same sovereignty the Constitution granted the original 13 states.)
The United States Supreme Court recognized that difference in Reynolds v. Sims (1964):
The superficial resemblance between one of the Alabama apportionment plans and the legislative representation scheme of the Federal Congress affords no proper basis for sustaining that plan, since the historical circumstances which gave rise to the congressional system of representation, arising out of compromise among sovereign States, are unique and without relevance to the allocation of seats in state legislatures.
The court found that the Fourteenth Amendment’s Equal Protection Clause required districts in both chambers of state legislatures must be equal in population “as nearly as practicable.”
If the equal representation amendment became part of the North Carolina Constitution, federal courts would immediately strike it down.
But the equal representation amendment will not get that far. Even if it passed both chambers of the General Assembly, it is hard to believe that a majority of North Carolina voters (who, by definition, live in more populous counties) would vote in favor of an amendment that would give them less power.
Considering those headwinds, the bill will not go far.
[UPDATE: Rep. Adams shared the reasoning behind the bill in a March 23 interview.]