Stephenson v. Bartlett

Justice BUTTERFIELD

dissenting.

I agree with Justice Parker’s conclusion that the whole-county provisions of our state Constitution are void and unenforceable. I write separately to explain my view concerning the unenforceability of the whole-county provisions and to emphasize the important role of the Voting Rights Act in guaranteeing racial fairness in the political process.

The Fifteenth Amendment to the United States Constitution provides that “[t]he right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of race, color, or previous condition of servitude,” U.S. Const, amend. XV, § 1, and Congress has the power to enforce the Fifteenth Amendment by appropriate legislation, U.S. Const, amend. XV, § 2. In 1965, Congress, under the enforcement arm of the Fifteenth Amendment, enacted the Voting Rights Act, a landmark piece of civil rights legislation. The Voting Rights Act is designed to address legacies of racially polarized voting and discriminatory voting practices that have not vanished.

Section 2 of the Voting Rights Act covers all states and all political subdivisions within the states. It provides that “[n]o voting qualification or prerequisite to voting or standard, practice, or procedure shall be imposed or applied by any State or political subdivision in a *412 manner which results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color.” 42 U.S.C. § 1973 (a) (1994). In the simplest terms, section 2 concerns the vote dilution of a protected class. Section 5 of the Voting Rights Act, which covers some states in their entirety and covers selected jurisdictions in other states, such as in North Carolina, applies when a covered jurisdiction “shall enact or seek to administer any voting qualification or prerequisite to voting, or standard, practice, or procedure.” 13 42 U.S.C. § 1973c (1994). Also stated simply, section 5 seeks to prevent “retrogression” of minority voting strength.

In 1982, United States Senator Patrick Leahy observed the following during a Senate hearing on amending the Voting Rights Act:

If section 5 is the engine that drives the act and renders it enforceable as a practical matter, section 2 is still the basic protection against discriminatory practices. Preclearance does not cover all areas and may not resolve every threatened violation where it does apply. Preclearance is designed to stop voting discrimination before it can start in covered jurisdictions, and section 2 is calculated to end it whenever and wherever it is found.

2 Voting Rights Act: Hearings on S. 53, S. 1761, S. 1975, S. 1992, and H.R. 3112 Before the Subcomm. on the Constitution of the Senate Comm, on the Judiciary, 97th Cong. 45 (1982) (statement of Sen. Leahy, Member, Senate Comm, on the Judiciary).

In 1967, the North Carolina General Assembly sought to amend the Constitution of North Carolina. The amendments included provisions prohibiting the dividing of counties in the redistricting process. The proposed constitutional amendments were placed on the ballot in 1968 and passed by an ample margin. The proposition on the ballot stated simply, “FOR constitutional amendments continuing present system of representation in the General Assembly,” and “AGAINST constitutional amendments continuing present system of representation in the General Assembly.” Act of May 31, 1967, ch. 640, sec. 8, *413 1967 N.C. Sess. Laws 704 , 706. The proposition did not expressly indicate that whole-county provisions were being adopted.

Upon adoption of the amendments by the voters in 1968, the State of North Carolina did not submit the constitutional amendments to the District of Columbia District Court or to the United States Department of Justice as required by section 5 of the Voting Rights Act. When the amendments were subsequently included in the 1971 Constitution, the State sought preclearance of the entire Constitution through the Attorney General but did not specifically identify the provisions relating to voting as required by section 5 administrative guidelines.

The nonprecleared whole-county provisions were enforced in the 1971 redistricting process with no divided counties. In 1981, the State again attempted to enforce the whole-county provisions. However, the United States Attorney General objected to the submitted plans and discovered the nonprecleared 1968 amendments. Upon discovery, the amendments were submitted for preclearance. The Attorney General refused to preclear the amendments and, under power vested to him by section 5 of the Voting Rights Act, interposed an objection to the use of the 1968 amendments in the forty covered counties. The effect of the Attorney General’s objection was to give the General Assembly the discretion to divide those forty counties covered by section 5 of the Voting Rights Act.

Following the objection in 1982, the General Assembly concluded that the Attorney General’s refusal to preclear the amendments rendered the whole-county provisions completely unenforceable, thereby granting the General Assembly the discretion to divide counties statewide. The General Assembly thereafter exercised this discretion and divided counties outside the forty covered jurisdictions.

The 1982 redistricting plans were challenged in 1982 on the basis of an alleged violation of the whole-county provisions. The case was removed to federal court, and the State’s position that the whole-county provisions were unenforceable was upheld by three federal judges from North Carolina, Judges J. Dickson Phillips; Franklin T. Dupree, Jr.; and W. Earl Britt. Cavanagh v. Brock, 577 F. Supp. 176 (E.D.N.C. 1983). The United States Supreme Court subsequently struck down the 1982 plans as violative of section 2. Thornburg v. Gingles, 478 U.S. 30 , 92 L. Ed. 2d 25 (1986). All redistricting plans *414 since Gingles have divided counties outside of the forty covered counties.

In administrative preclearance proceedings, the United States Attorney General is a surrogate for the District of Columbia District Court. No new voting practice is enforceable unless the covered jurisdiction has succeeded in obtaining preclearance. 42 U.S.C. § 1973c. Voting changes to which the United States Attorney General has interposed an objection are legally unenforceable.

Unquestionably, the United States Attorney General’s objection rendered the whole-county provisions void and unenforceable in the forty covered counties. The Supremacy Clauses of the United States and North Carolina Constitutions prohibit the enforcement of the whole-county provisions in the forty covered counties. U.S. Const, art. VI, cl. 2; N.C. Const, art. I, § 3. The question then becomes whether the provisions are invalidated as to all counties or are capable of partial enforcement in the remaining noncovered counties.

“One of the first rules in construing constitutions, and it applies to all written instruments, is to ascertain the intention of the people in adopting it.” Reade v. City of Durham, 173 N.C. 668, 677 , 92 S.E. 712, 715 (1917). “Constitutional provisions should be construed in consonance with the objects and purposes in contemplation at the time of their adoption. To ascertain the intent of those by whom the language was used, we must consider the conditions as they then existed and the purpose sought to be accomplished.” Perry v. Stancil, 237 N.C. 442, 444 , 75 S.E.2d 512, 514 (1953).

The majority states that its holding “accords the fullest effect possible to the stated intentions of the people.” The majority offers no insight as to how it divined the intent of the people. My view of the people’s intent does not include the sacred nostalgia for whole counties that the majority seems to embrace.

It is important to mention that voting discrimination in 1968 was especially significant and that African-American citizens were subjected to practices and procedures that affected their right to register to vote and to be able to elect legislators of their choice. Accordingly, there were no African-American members in the General Assembly when the amendments were adopted. The electorate in 1968 failed to include many African-American citizens who were eligible to register to vote but were not registered because of reasons attributable to their race. In other words, voting discrimination, which the Voting *415 Rights Act seeks to eliminate, was present in the enactment and adoption of the amendments under review. Therefore, I am unable to conclude that the amendments represented the will of all of the people when the General Assembly passed them and the voters adopted them.

A historical evaluation sheds some light on the purpose of the 1968 amendments. The majority sets out the basic path of how the whole-county provisions came to , be incorporated into the Constitution of North Carolina. There are several points that I believe the majority omits in its discussion that are relevant to my reasoning. First, until the 1968 amendments that put in place the whole-county provisions, there was no express prohibition in the Constitution against the division of counties in the creation of House districts. Rather, the constitutional mandate requiring at least one Representative for each county meant that no county was, in practice, ever divided. This is a subtle but important distinction.

Prior to Drum v. Seawell, 249 F. Supp. 877 (M.D.N.C. 1965), aff’d per curiam, 383 U.S. 831 , 16 L. Ed. 2d 298 (1966), under the constitutional requirement that each county have at least one Representative, House districts were never divided. See John L. Sanders, Maps of North Carolina Congressional Districts, 1789-1960, and of State Senatorial Districts and Apportionment of State Representatives, 1776-1960 (Inst, of Gov’t, Univ. of N.C. at Chapel Hill, 1961); John L. Sanders, Materials on Representation in the General Assembly of North Carolina (Inst, of Gov’t, Univ. of N.C. at Chapel Hill, 1965). After Drum and the adoption of the 1968 amendments, no county was divided in the creation of a House or Senate district, until 1982, as a result of the constitutional prohibitions against dividing counties. See Act of Jan. 13, 1966, ch. 1, 1965 N.C. Sess. Laws (Extra Sess. 1966) 13; Act of Jan. 14, 1966, ch. 5, 1965 N.C. Sess. Laws (Extra Sess. 1966) 17; Act of June 1, 1971, ch. 483, 1971 N.C. Sess. Laws 412 ; Act of July 21, 1971, ch. 1177, 1971 N.C. Sess. Laws 1743 . It is true that there was a prohibition in the 1868 Constitution on the division of counties for some Senate districts. That provision prohibited the division of counties in the creation of a Senate district unless that district was entitled to two or more Senators. Therefore, the express prohibition against dividing counties for Senate districts never affected all of the counties simultaneously in its application.

The majority states, “The proposed amendments for the Senate and House of Representatives reincorporated a prohibition against *416 the division of counties.” The only prohibition that was “reincorporated” in the amendments was for the Senate. After the adoption of the 1968 amendments, Article II, Section 5(3) of the Constitution of North Carolina created a prohibition that did not previously exist against the division of counties in the creation of House districts. The requirement that every county have at least one Representative was stricken from the Constitution when the 1968 amendments were adopted. The Constitution of 1971 made no changes to the whole-county provisions, and those provisions remain in the form adopted in 1968.

The majority acknowledges that Drum was the catalyst for the 1968 amendments. The majority states that Drum held that the “legislative redistricting plans violated the ‘one-person, one-vote’ requirement of the United States Constitution and were therefore void.” In order to divine the intent of the people, one must understand what was at issue in Drum and the effect of the Drum decision on the Constitution.

A full understanding of Drum cannot be achieved without understanding the distinction between redistricting and reapportionment. Each of these terms has a precise meaning that invokes different aspects of law. In modern parlance, the two terms have tended to be used haphazardly and, sometimes, interchangeably. Reapportionment is the reallocation of legislators among existing political subdivisions. Redistricting is the actual redrawing of existing district lines. See Department of Commerce v. U.S. House of Representatives, 525 U.S. 316, 142 L. Ed. 2d 797 (1999) (discussing role of decennial census in both reapportionment and redistricting).

When Drum was written, the House had 120 members and the Senate had 50, just as they do today. The one hundred counties accounted for one hundred Representatives. The remaining twenty Representatives were allotted to the more populous counties. The questions before the General Assembly were the same then as now: How many districts would there be?, How many members would be in each district?, and Where would the boundaries of those districts be located? Drum was instituted to challenge the manner in which the General Assembly apportioned House members to districts. The court in Drum held that the manner of apportionment violated the federal requirements established in Reynolds v. Sims, 377 U.S. 533 , 12 L. Ed. 2d 506 (1964) (establishing the principle of “one-person, one-vote”). Under the federal standards, the General Assembly could no longer legally comply with the constitutional requirement that *417 every county have at least one Representative. The constitutional requirement was unenforceable after Drum. The lawsuit in Drum was brought because of the manner of reapportionment, not because of redistricting. This bears directly on the 1968 amendments.

If one operates from the presumption that the 1968 amendments were in response to Drum, then such a presumption would seem to weaken, rather than support, the majority’s argument concerning intent. Contemporary reports by those involved in complying with Drum bolster this presumption. Then Governor Daniel K. Moore addressed a special legislative session convened after the November 1965 decision in Drum as follows:

Ladies and gentlemen, the hour of decision has arrived. The General Assembly of North Carolina must meet head on the mandate of the Supreme Court of the United States and reapportion both houses and congressional districts in accordance with the “one man, one vote” decision enunciated by the Supreme Court. The General Assembly must make these decisions in compliance with the specific orders of the United States District Court for the Middle District of North Carolina issued on November 30, 1965.

Message to the Extra Session of the General Assembly (Jan. 10, 1966), in Messages, Addresses, and Public Papers of Daniel Killian Moore, Governor of North Carolina, 1965-1969, 65, at 69 (Memory F. Mitchell ed. 1971). In Reynolds , the United States Supreme Court established the requirement of substantially equal representation for all citizens in a state. The Court stated, “With respect to the allocation of legislative representation, all voters, as citizens of a State, stand in the same relation regardless of where they live.” Reynolds, 377 U.S. at 565 , 12 L. Ed. 2d at 529 . If there was an absolute necessity for amending the Constitution, I believe it arose from the problems created by the constitutional requirement to have at least one Representative per county.

This Court has previously examined the effect of federal court decisions on the Constitution of North Carolina. The severance analysis applicable to statutes, determining whether one portion of the statute can survive after another portion of the statute has been stricken, is equally applicable to constitutional provisions. Constantian v. Anson Cty., 244 N.C. 221, 228 , 93 S.E.2d 163, 168 (1956). The two-part severability test was set out in State ex rel. Andrews v. Chateau X, Inc., 296 N.C. 251, 259 , 250 S.E.2d 603, 608 *418 (1979), judgment vacated on other grounds, 445 U.S. 947, 63 L. Ed. 2d 782 (1980), as follows:

To determine whether the portions [of a statute] are in fact divisible, the courts first see if the portions remaining are capable of being enforced on their own. They also look to legislative intent, particularly to determine whether that body would have enacted the valid provisions if the invalid ones were omitted.

Applying this statutory analysis to the whole-county provisions, I believe that if Article II, Sections 3(3) and 5(3) are severed from the remaining clauses of the 1968 constitutional amendments, then the remaining clauses — concerning equal representation, contiguity, and unaltered districts and apportionment between congressional censuses — are capable of being enforced on their own. As previously expressed, I believe that the principal legislative intent of the 1968 amendments was to comply with Drum and the federal “one-person, one-vote” requirement. I believe that the 1967 General Assembly would have voted to submit amendments to the voters without the whole-county provisions in order to comply with Drum and that the whole-county provisions were not vital to the paramount intent of the amendments.

The whole-county provisions were, as the court in Cavanagh stated, “to rise or fall as a whole.” Cavanagh, 577 F. Supp. at 182 . We are faced with the combination of the impediments placed on the reapportionment and redistricting processes by the supremacy of section 5 of the Voting Rights Act, the requirements under section 2 that must be applied across the entire state, and the “one-person, one-vote” requirement.

When taken in the aggregate, I believe these requirements overwhelm the whole-county provisions to the extent that they are functionally unworkable in any manner that would give them purposeful effect, considering Drum and the demographics of the 1968 electorate, and that they are, therefore, unenforceable. My determination that the whole-county provisions are unenforceable logically makes moot further examination of our state Constitution on the issue of the constitutional propriety of multi-member and single-member districts that the majority undertook in fashioning its remedy.

While I feel very strongly that the whole-county provisions of the state Constitution are void and unenforceable, I am compelled to *419 comment upon the majority’s remedy. The majority has crafted a remedy that it believes gives maximum enforcement to the whole-county provisions. In my view, the majority has assumed to act in a legislative, rather than a judicial, capacity in its approach to a remedy. This Court has stated:

When called upon to exercise its inherent constitutional power to fashion a common law remedy for a violation of a particular constitutional right,.. . the judiciary must recognize two critical limitations. First, it must bow to established claims and remedies where these provide an alternative to the extraordinary exercise of its inherent constitutional power. In re Alamance County Court Facilities, 329 N.C. 84, 100-01 , 405 S.E.2d 125, 133 (1991) (discussing and applying inherent powers of the judiciary). Second, in exercising that power, the judiciary must minimize the encroachment upon other branches of government — in appearance and in fact — by seeking the least intrusive remedy available and necessary to right the wrong. Id.

Corum v. University of N.C., 330 N.C. 761, 784 , 413 S.E.2d 276, 291 , cert. denied, 506 U.S. 985 , 121 L. Ed. 2d 431 (1992).

The criteria directed by the majority, while similar to criteria utilized by the judiciary in court-ordered remedies, are an encroachment upon the discretion of the Legislative Branch of government. Our General Assembly is fully capable of interpreting the decision of this Court without having its discretionary legislative authority bound by the Judicial Branch of government. I believe that the majority’s approach to the remedy is excessive in its reach.

In sum, I believe that the whole-county provisions of our state Constitution are void and completely unenforceable, and I believe that the General Assembly was correct in determining that the whole-county provisions were unenforceable statewide. Accordingly, I would vote to uphold the 2001 redistricting plans enacted by the General Assembly. Therefore, I must respectfully dissent.

. North Carolina has forty covered jurisdictions: Anson, Beaufort, Bertie, Bladen, Camden, Caswell, Chowan, Cleveland, Craven, Cumberland, Edgecombe, Franklin, Gaston, Gates, Granville, Greene, Guilford, Halifax, Harnett, Hertford, Hoke, Jackson, Lee, Lenoir, Martin, Nash, Northampton, Onslow, Pasquotank, Perquimans, Person, Pitt, Robeson, Rockingham, Scotland, Union, Vance, Washington, Wayne, and Wilson Counties.