Circular reasoning on redistricting

Published 12:00 am Wednesday, January 30, 2013

RALEIGH — In 30 pages of mostly circular arguments, the North Carolina Supreme Court misses a basic fact of about legislative redistricting: It is unlike any other law that state legislators craft.
Legislators have an inherent and obvious conflict of interest when they draw the district lines that determine who votes for them and who doesn’t.
It is, however, a conflict of interest allowed by the state constitution.
The constitution gives legislators the sole authority to draw legislative district lines every 10 years, following a new U.S. census.
The power to draw those lines is also unlike most other laws that state legislators draft because it goes right to the heart of representative democracy, to the principle of political power emanating from the people.

You don’t have to read far into our state constitution to get to this little nugget: “All political power is vested in and derived from the people; all government of right originates from the people, is founded upon their will only, and is instituted solely for the good of the whole.”
That origination, derivation and expression of will becomes a part of those lines that legislators draw on a map.
Our justices fail to mention any of that in a recent decision holding that some documents that went into forming the latest legislative districts don’t have to be turned over to those who are challenging the constitutionality of the districts.
Rather, like the good lawyers that they are, the justices begin their opinion with a discussion of the “well-established legal principle” of attorney-client privilege.
Meandering down that road, the court concludes that a law approved specifically to waive the confidentiality of documents created in the lead-up to a new redistricting plan is null-and-void when it comes to attorney-client privilege.
Justice Barbara Jackson, writing for the court, says that, because the law doesn’t specifically mention the attorney-client privilege, it therefore isn’t waived and communications between redistricting lawyers and legislators can be kept secret.

It would be easy enough to dismiss the decision and the lawsuit as partisan legal wrangling that has little to do with the average person’s life. The lawsuit, after all, is being brought by Democratic activists, legislators and allied groups intent on reversing the advantages that Republican legislators have drawn into new maps for themselves.
(Democrats did the same when they controlled the legislature.)
Here is why it matters: Legislative and congressional redistricting, in an age of computer-generate maps using block-level demographics and voting patterns, is the 800-pound gorilla in the room that is driving political polarization throughout the country.
More and more safe districts mean more elections decided in primaries where activists on the left and right wield more power.
What this decision means is that voters will have less power to see that those who draw up the districts did so without crossing legal lines intended to prevent even more gerrymandering.
And a law that was passed as a clear recognition of just how different redistricting is can be safely ignored.

Scott Mooneyham writes about state government issues for Capitol Press Association.