Electoral map critics stretch NC constitution to meet policy goal

Critics argue that North Carolina’s new ballot papers violate key tenets of the state’s Declaration of the Rights of Man. Among those critics are the four Democrats who serve on the NC Supreme Court. They called the cards unconstitutional.

Read for yourself the provisions of the Declaration in Article I of the NC Constitution. You get a sense of how far the legal arguments deviate from the text of the document.

The Statement of Rights consists of 38 sections. Four sections play a role in this discussion.

Section 10 states: “All elections are free.” Section 12 deals with the right of assembly and the right to petition. “The people have the right to assemble to deliberate for the common good, to instruct their representatives, and to seek redress at the general assembly; but secret political societies are dangerous to the liberties of a free people and will not be tolerated.”

Section 14 identifies two important freedoms. “Freedom of speech and freedom of the press are two of the great bulwarks of liberty and must therefore never be restricted, but every person should be held responsible for their misuse.”

Section 19 contains two main provisions. The second concerns the absentee ballot debate. “No one shall be denied the same protections of the law; nor may anyone be discriminated against by the state on the basis of race, skin colour, religion or national origin.”

Most of us support the concepts set out in Article I, Sections 10, 12, 14 and 19. But unless you’ve spent much of your life in voting litigation, you’re probably wondering: what do these provisions have to do with voting cards?

That’s a good question. It is a challenge for the contestants of the Election Map to answer. They have to come up with an answer because they are using the state government‘s judiciary to throw away voting cards they don’t like.

Critics say maps drawn for the Republican party advantage call into question the “free” nature of the state’s elections. The attacked cards also violate the right to freedom of expression and association and deny the same protections of the law, the argument goes.

If these conclusions sound far-fetched to you, don’t worry. It’s not just your lack of proper legal training. Count Chief Justice Paul Newby and his two Republican counterparts are among those uncovering dubious interpretations of the Constitution.

During Wednesday’s Supreme Court hearing, Newby responded to claims that the maps were “undermining the will of the people”.

“Why can’t you say that the will of the people is determined by the precise language of the Constitution?” Newby asked. “The exact wording of the Constitution in Article II gives the General Assembly power to redistribute districts and establishes the objective standards to be applied. Why isn’t that the will of the people?”

Newby heightened his concerns in a response to the court order rejecting the voting cards.

“I disagree with the court’s decision, which violates the separation of powers by effectively placing responsibility for redistribution of districts on the judiciary, not the legislature, as expressly provided for in our constitution,” Newby wrote. “As predicted by the United States Supreme Court, this court’s decision results in an ‘unprecedented expansion of the judiciary.'”

Because the constitution assigns the making of ballot papers to the legislature, courts should be cautious about interfering in the process, Newby argued.

“[A]Power, not limited by the Constitution, resides in the people,” he wrote, citing 60-year-old precedent. “The people act through the General Assembly. Since the General Assembly serves as ‘the people’s authorized agent to make laws’, a restriction on the General Assembly is in effect a restriction on the people themselves.”

Newby accused his Democrat colleagues of abusing the state constitution’s clauses on free elections, free speech, free assembly and equal protection.

“According to the majority, it is this court and not the people that has the power to change our constitution,” Newby added. “Therefore, the majority, by court order, amends the plaintext of Article I, Sections 10, 12, 14 and 19 to authorize the courts to oversee legislative power to redistribute districts arising from complaints of partisan manipulation. Such action constitutes a clear usurpation of the people’s sole authority to change their constitution.”

For the Chief Justice, the democratic majority of the court plays the role of a usurper who “seizes the opportunity to advance his agenda”. “There is no express provision in the Constitution that supports the decision of the majority; There is no evidence that the enacted redistribution plans are unconstitutional beyond a reasonable doubt. A summary statement by the majority, on the other hand, does not do it.”

It would be difficult to find a clearer case of undermining the will of the people.

– Carolina Journal

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