Pete's Prep: Tuesday, August 28, 2018

Democrat judges give Democrats win in NC gerrymandering case

North Carolina might not have a Congressional election this November, thanks to a ruling from two Democrat-appointed federal judges who have determined that drawing districts to ensure partisan majorities is now unconstitutional.

You can read the opinion here.

From the NY Times:

A panel of three federal judges again  declared North Carolina’s congressional district map to be  unconstitutional, ruling on Monday that it was gerrymandered to unfairly  favor Republican candidates.

The  decision, which may have significant implications for control of  Congress after the midterm elections, is likely to be appealed to the  United States Supreme Court, which for the moment is evenly split on  ideological lines without a ninth justice to tip the balance.

Though  North Carolina’s voters tend to divide about evenly between the two  parties, Republicans currently hold 10 of the state’s 13 House seats. A  redrawn district map may put more of the seats within Democrats’ reach.

Which is, of course, the point. Democrats spent a century rigging North Carolina politics through gerrymandering, a spoils system, patronage, fraud, and even murder. Republicans won control for seven years, have drawn one set of maps, and now gerrymandering is unconstitutional.

It took the GOP winning control for Democrats to arrive at this conclusion.

Also, Democrats are projecting big wins this November, at the same time they are arguing that they cannot organize, recruit candidates, raise money, and win elections. Polling indicates three congressional districts currently held by Republicans will likely go to the Democratic challengers. So, after November the NC delegation could have 7 Republicans and 6 Democrats. Or maybe even a Democratic majority.

National money is pouring into the state to elect Democrats at all levels. But we're told by two Democrat judges that they cannot possibly win. And we're told by Democratic leaders that this is what an independent judiciary looks like.

Yet, the two Democrat judges say the GOP has "deprived Democratic voters “of their natural political strength” by making it difficult for such voters to raise money, attract strong candidates, and motivate fellow party members and independent voters to campaign and vote."

There's no mention of how that "natural political strength" was built by suppression of the Republican Party for a century. But now that Republicans overcame those obstacles and are using the Democrats' rules to govern... well... NOW it's all illegal.

From the ruling:

As to the merits, a common thread runs through the restrictions on state election regulations imposed by Article I, the First Amendment, and the Equal Protection Clause: the Constitution does not allow elected officials to enact laws that distort the marketplace of political ideas so as to intentionally favor certain political beliefs, parties, or candidates and disfavor others. In particular, Article I preserves inviolate the right of “the People” to elect their Representatives, and therefore bars the States from enacting election regulations that “dictate electoral outcomes” or “favor or disfavor a class of candidates.” U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 833–34 (1995). Similarly, the First Amendment prohibits election regulations that “restrict the speech of some elements of our society in order to enhance the relative voice of others.Buckley v. Valeo, 424 U.S. 1, 48–49 (1976) (per curiam). And the Equal Protection Clause embodies the foundational constitutional principle that the State must govern “impartially”—that “the State should treat its voters as standing in the same position, regardless of their political beliefs or party affiliation.” Davis v. Bandemer, 478 U.S. 109, 166 (1986) (Powell, J., concurring in part and dissenting in part). That the framers of the Constitution and the Reconstruction Amendments sought to protect this principle through three different constitutional provisions only reinforces its centrality to our democratic system.

Partisan gerrymandering—“the drawing of legislative district lines to subordinate adherents of one political party and entrench a rival party in power,” Ariz. State Legislature v. Ariz. Indep. Redistricting Comm’n, 135 S. Ct. 2652, 2658 (2015)—strikes at the heart of this foundational constitutional principle. By definition, partisan gerrymandering amounts to an effort to dictate electoral outcomes by favoring candidates of one party and disfavoring candidates of another. Thornton, 514 U.S. at 833–34. By intentionally ensuring that Representatives from one party have a disproportionate voice in Congress, it also “restrict[s] the speech of some elements of our society”—voters who do not support the policies embraced by the favored party—and “enhance[s] the relative voice of others”—voters who support the favored party. Buckley, 424 U.S. at 48–49.

And by favoring the viewpoints of one group of voters over another, it runs afoul of the Government’s constitutional duty to “treat its voters as standing in the same position, regardless of their political beliefs or party affiliation.” Davis, 478 U.S. at 166. Put differently, by intentionally seeking to entrench a favored party in power and make it difficult—if not impossible—for candidates of parties supporting disfavored viewpoints to prevail, partisan gerrymandering “seeks not to advance a legitimate regulatory goal, but to suppress unpopular ideas or information or manipulate the public debate through coercion rather than persuasion.” Turner Broad. Sys., Inc. v. F.C.C., 512 U.S. 622, 641 (1994). But “‘[t]he best test of truth is the power of the thought to get itself accepted in the competition of the market,’ and the people lose when the government is the one deciding which ideas should prevail.” Nat’l Inst. of Family & Life Advocates v. Becerra, 138 S. Ct. 2361, 2375 (2018) (emphasis added) (quoting Abrams v. United States, 250 U.S. 616, 630 (1919) (Holmes, J., dissenting)). Partisan gerrymanders, therefore, “raise the specter that the Government may effectively drive certain ideas or viewpoints from the marketplace.” Turner Broad., 512 U.S. at 64 (internal quotation marks omitted).

That is precisely what the Republican-controlled North Carolina General Assembly sought to do here. The General Assembly expressly directed the legislators and consultant responsible for drawing the 2016 Plan to rely on “political data”—that is, past election results specifying whether, and to what extent, particular voting precincts had favored Republican or Democratic candidates, and therefore were likely to do so in the future—to draw a districting plan that would ensure Republican candidates would prevail in the vast majority of the State’s congressional districts, and would continue to do so in future elections. Ex. 1007. And the Republican-controlled General Assembly achieved that goal. As detailed below, the 2016 Plan led to Republican candidates prevailing by “safe” margins in the vast majority of the State’s thirteen congressional districts. Put differently, the General Assembly’s Republican majority “decid[ed] which ideas [w]ould prevail” in the State’s congressional elections. Becerra, 138 S. Ct. at 2375.

In doing so, they deprived Democratic voters “of their natural political strength” by making it difficult for such voters to raise money, attract strong candidates, and motivate fellow party members and independent voters to campaign and vote. Gill, 138 S. Ct. at 1938 (Kagan, J., concurring).

Legislative Defendantsdrew a plan designed to subordinate the interests of non- Republican voters not because they believe doing so advances any democratic, constitutional, or public interest, but because, as the chief legislative mapdrawer openly acknowledged, the General Assembly’s Republican majority “think[s] electing Republicans is better than electing Democrats.” Ex. 1016, at 34:21–23. But that is not a choice the Constitution allows legislative mapdrawers to make. Rather, “those who govern should be the last people to help decide who should govern.” McCutcheon v. Fed Election Comm’n., 572 U.S. 185, 134 S. Ct. 1434, 1441–42 (2014) (plurality op. of Roberts, C.J.). Indeed, “the core principle of [our] republican government [is] that the voters should choose their representatives, not the other way around.” Ariz. State Leg., 135 S. Ct. at 2677 (internal quotation marks omitted). Accordingly, and as further explained below, we conclude, with one narrow exception,2 that Plaintiffs prevail on all of their constitutional claims.3

And in the most-obviously partisan move, the two Democrat judges said there doesn't need to be any primaries under new maps, because NC General Assembly leaders abolished primaries for judicial races.

However, this case presents unusual circumstances. To begin, the General Assembly has abolished primary elections for several partisan state offices. N.C. Democratic Party v. Berger, 717 Fed. App’x 304, 305 (4th Cir. 2018) (per curiam). Accordingly, the General Assembly has concluded that, for at least some partisan offices, primary elections are unnecessary. Therefore, were this Court to order the State to conduct a general congressional election without holding primary elections, that would be consistent with the General Assembly’s policy preference as to at least some offices.

In my view, this ruling sets the path for transforming the way we elect politicians - at every level. It's obvious that progressives are using these cases to establish a parliamentarian form of governing - with proportional representation and coalition governing. And if they thought that format would diminish their power they would not be pursuing it.



Maybe a monument solution

It seems like most of the people involved in the fight over the confederate monuments is imply interested in the fight - verbal or physical.

But for those of us who are actually interested in trying to figure out a way towards reconciliation, forgiveness, and progress... there has to be a way to solve this issue.

Because on the one side is a mob intent on tearing every monument down. They desire to decide for the rest of society.

On the another side is a large segment of the population (perhaps a majority, even) that says leave them all up.

At some point we're going to be paying to replace scores of monuments across the state, or the mob will win. But I suspect it will come at a social and/or physical price.

Perhaps a better way forward is what many callers to my radio show (on a conservative talk station) have suggested: take down most of them, leave some of them up with revised descriptions, and add more statues honoring others - like African Americans and Union supporters.

The NC Historical Commission would undertake a review of all monuments in the state. Those honoring ordinary soldiers conscripted to fight could remain. Those honoring virulent racists and leaders of the insurrection would be moved. Organizations and citizens could bid on the statues and erect them at other private locations of their choosing. Other monuments could be moved to battlefields. Others to museums.

The statues that remain could see new descriptions to better reflect the historical importance and meaning of the art piece. They could also be join by new statues that help tell those stories - statues that honor the suffering, the contributions, the heroes, and the victims of all of our ancestors. 

But, wait! There's more!

Gov. Roy Cooper says he's going to sue again to keep constitutional amendments off the ballot.

Lanny Davis admits he was a source to CNN and lying about it.

WBTV reports that DMV has been operating a secret drivers license office in Raleigh.

Pete Kaliner

Pete Kaliner

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