by Dr. Andy Jackson
Director of the Civitas Center for Public Integrity, John Locke Foundation
WRAL reported yesterday about the kurfuffle over Cheif Justice Paul Newby pointing out that there is not a “fair elections” clause in the North Carolina Constitution. Newby made the comment during oral arguments in the North Carolina League of Conservation Voters v Hall redistricting case on February 2.
“We have ‘free.’ We don’t have ‘fair.’ They have ‘free and fair, correct?” Newby asked, apparently misquoting the Pennsylvania constitution.
“That is true,” responded Zach Schauf, a lawyer representing the N.C. League of Conservation Voters, one of three plaintiffs whose cases were combined in the ongoing legal challenge.
Schauf then went on to say that another part of the North Carolina Constitution creates the same effect of a fair elections clause:
“This court also has the equal protection clause, which Stephenson [v. Bartlett] interpreted to require substantially equal voting power, substantially equal legislative representation and equal representational influence,” Schauf said. “So we think you get to the same place.”
What do those phrases mean in Stephenson v. Bartlett? Each is found one time in the ruling:
Each of those phrases was written in the context of complying with the Voting Rights Act and the “one-person, one-vote” principle stated in Article II, sections 3 and 5 of the North Carolina Constitution (and implied in the US Constitution) requiring districts to be roughly equal in population. The application in Stephenson was to functionally prohibit legislative maps in which some voters were located in single-member legislative districts while others were located in multimember districts.
So, is it proper to assume that Stephenson implies proportionality in election outcomes? A plain reading of the court’s order shows that it was about the size of districts, not the political outcome of those districts.
What about the Voting Rights Act (VRA)? Here is what Section 2 of the VRA says about the proportionality of election results:
Provided, That nothing in this section establishes a right to have members of a protected class elected in numbers equal to their proportion in the population.
That is why, for example, the VRA does not require North Carolina to draw three out of fourteen (21%) congressional districts in which black voters can collectively “elect representatives of their choice” even though blacks make up about 22% of the population.
Race is a protected class under the VRA. Party affiliation is not. Even if the VRA required proportionality on race, as the North Carolina League of Conservation Voters demonstrated in the congressional map they submitted in the redistricting lawsuit, helping Democrats win more seats is not the same thing as helping blacks win more seats.
In short, there is nothing in the interpretation of the North Carolina Constitution, the US Constitution, or the Voting Rights Act found in Stephenson v. Bartlett that requires proportionality by race, and certainly not proportionality by political party.