NC Constitution Defeats a Stubborn Legislative Majority

Nelda Holder, photo by Tim Barnwell
Nelda Holder
Photo: Tim Barnwell
Legislative News by Nelda Holder –

There are times—like now—when it would seem the state of North Carolina is governed more by lawsuit than by legislation. 

There are also times—like now—when the ability of the courts to safeguard and enforce the constitutional rights of the people of this state can make a citizen profoundly thankful.

The recent judgment in the Superior Court of Wake County, where a three-judge panel (two Democrats and one Republican) found strong evidence of abuse of the state Constitution in the gerrymandered legislative districts in question, provides an eloquent explanation of this state’s particular founding principles.

The unanimous decision was based on this stated premise: “The People of North Carolina have delegated, through the State’s Constitution, the drawing of the State’s legislative districts to the General Assembly. … But other constitutional constraints … apply to all acts of the General Assembly, and indeed all acts of government. These principles include the obligation that our government provide all people with equal protection under law, that our government not restrict all peoples’ rights of association and political expression, and that our government allow for free elections.” (Emphasis added.)

The decision is a wonderful lesson and reminder regarding the goals enshrined in that governing document, and why the judges found that the politically gerrymandered maps in question “impermissibly infringe upon the equal protection, speech, association, and free election rights of citizens.”

I admit it freely: I am a language lover. And the language of this decision made me feel that the three Superior Court judges—Paul C. Ridgeway, Joseph N. Crosswhite, and Alma L. Hinton—were speaking to a very wide audience. You may not have a chance to read their words, but their import will likely touch your life if you live in one of the 28 specific House and Senate districts implicated. Indeed, if the decision results in a more balanced Legislature in the future, it should affect all the state’s citizens—hopefully in positive, more reflective, less partisan legislative results that benefit the entire state.

The decision traces the three cases it has heard over the last eight years, noting that the voters of the state “have been subjected to a dizzying succession of litigation over North Carolina’s legislative and Congressional districts in state and federal courts.” Indeed, the Wake Superior Court has ruled three times regarding legislative and Congressional districts; the NC Supreme Court has ruled twice; and there have been eight US Supreme Court rulings—and still we, the people, do not have equitable districts and representation under the law.

In the past month, the General Assembly has toiled over the production of new maps for the 28 districts in question. New maps have been forwarded for court scrutiny and approval—or disapproval. And a new lawsuit filed September 27 is set to test the potentially partisan nature of the state’s 13 US Congressional districts. The suit was filed by fourteen individual North Carolina voters, backed by the nonpartisan National Redistricting Foundation (an arm of the National Democratic Redistricting Committee led by former U.S. Attorney General Eric Holder.)

The suit’s introduction quotes the Wake Superior Court’s October 3 ruling: “[T]he constitutional rights of North Carolina citizens are infringed when the General Assembly … draws district maps with a predominant intent to favor voters aligned with one political party at the expense of other voters.”

It points to the admission by Republican leaders that the current maps (drawn in 2016) were drawn with “Partisan Advantage” as an acknowledged goal, resulting in the election of ten Republican and three Democrats. According to the document’s charges, “Legislative Defendants admitted they instructed their mapmaker, Dr. Thomas Hofeller, to use partisan voting histories to rig the district lines to entrench a 10–3 Republican advantage.”

Dr. Hofeller, now deceased, figures prominently in the state legislative district suit. And as the congressional challenge states, the 2016 map being questioned was drawn by Hofeller under directions to “use partisan voting history to rig the district lines to entrench a 10–3 Republican advantage.”

In 2019, the US Supreme Court ruled that partisan gerrymandering claims are not appropriately decided at that level, and instead should be decided at the state court level according to individual state constitutions. Hence the recent decision in Wake County Superior Court (which the General Assembly leadership decided not to contest) and now the second petition to the same court.

Regarding the Legislature’s newly proposed remedial maps under the October 3 decision, the court has appointed Stanford Law Professor Nathaniel Persily to “assist the court” in its review of those maps and—should the court reject them—to produce new maps according to the court’s instructions.

The court has also retained the right to move the 2020 primary date for the General Assembly, or to move the date for all of the state’s primaries including offices other than General Assembly, “should doing so become necessary to provide effective relief to this case.”

Relief, indeed. After almost nine years of getting this business of respecting the citizens wrong.

And speaking of lawsuits

September 27 also saw a voter fraud lawsuit filed against Damon Circosta, chair of the State Board of Elections, and Greg Flynn, chair of the Wake County BOE, charging public records violation. This involves the request by the US Attorney’s office for the Eastern District of NC in August 2018, requesting voting histories and other materials dating back to August 2018. Several news outlets, including Capitol Broadcasting (WRAL-TV), The News and Observer, and The Washington Post. Defendants have not provided an explanation for denial of records. This is an odd situation in which federal subpoenas originally sought millions of records (including ballots themselves), but subsequently backed down on the number after state officials protested. Some 789 records are now the subject of inquiry. The case ostensibly involves US Immigration and Customs Enforcement.

Another state Republican speaks out in favor of Medicaid

According to an op-ed in the Wilmington Star-News, former NC State Representative Danny McComas (a Republican who served from 1995 through 2012) has a vision of the state’s lawmakers setting aside partisan politics “to provide hardworking citizens access to affordable health insurance,” which he thinks will grow the economy, throw a lifeline to rural hospitals, and provide one of the “most effective tools to combat the opioid epidemic.”

Noting that the state has “one of the worst rates of health insurance coverage in the nation” (ahead of only eight states), McComas notes that the coverage Medicaid could provide would assist those in such critical industries as “farming, child care, construction, food service, and retail.”

With Medicaid eligibility expansion, the federal government would pay 90% of costs. “I know a good deal when I see one,” McComas states. The governor prefers full Medicaid expansion but “has signaled his willingness to compromise.” And Phil Berger (R), leader of the Senate, has recently noted “a need for us to have a conversation.” Amen.

Worst legislation of the month?

So, how long has your license plate been riding on the back end of your car or truck? My most recent one was in service for some 19 years, and certainly could have kept rolling along if the car engine hadn’t totally died.

You may wonder, then, how the Legislature came up with a requirement that we, the citizens, replace our North Carolina license plates with a new edition every seven years. This legislation (HB 211) was signed into law by Gov. Roy Cooper on September 27. It was sponsored by Rep. Phil Shepard (R) of Jacksonville. The bill seemed innocuous enough in its original form, containing just a few technical corrections/additions to motor vehicle laws. But somewhere along the way, this requirement was added and it stuck. Now, it would seem, WE are stuck.


Nelda Holder is the author of The Thirteenth Juror – Ferguson: A Personal Look at the Grand Jury Transcripts. Read Holder’s blog,

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