*1 SUPREME COURT IN THE BARTLETT (2002)] [355 registered voter of a resident as ASHLEY STEPHENSON, individually, and as LEO DAUGHTRY, individually, Beaufort North Carolina; County, Representative North Carolina House of Representatives; for the 95th District, 4th North and as Senator for the District, PATRICK BALLANTINE, individually, Representative the and as 61st ART POPE, individually, Carolina Senate; individu- House of BILL COBEY, North Carolina Representatives; District, Republican Party and of of Carolina on behalf and as Chairman the North ally, similarly persons GARY as situated BARTLETT, themselves and all other ROBERT LARRY of State Board of LEAKE, Executive Director the Elections; C. LORRAINE G. and CHARLES B. GENEVIEVE SIMS, SHINN, CORDLE, JAMES B. as Board of BLACK, Elections; as members of State WINFREE, Speaker MARC of as BASNIGHT, of the North Carolina House Representatives; Tempore MICHAEL as EASLEY, the North Carolina Senate; President Pro Attorney and ROY COOPER, North Governor the State Carolina; of North Carolina General No. 94PA02 2002) (Filed 30 April redistricting North Carolina —2001 Elections— plans constitutionality — by summary granting judgment
The trial court did err Assembly plaintiffs favor of on the claim that legislative redistricting plans in violation of the enacted its 2001 provision 3(3) and (WCP) whole under Article Sections when Senate 5(3) of the North Carolina Constitution the 2001 redistricting plan Senate divided 51 of 100counties into different plan 70 out of redistricting districts and the 2001 House divided districts, use of 100 counties into different House because the single-member and multi-member districts within the same both Equal redistricting plan violates the Protection Clause it multi- State Constitution unless is established inclusion of interest, compelling districts advances a state and the member expedited an hearing, is directed to conduct a trial court feasibility basis, allowing question (1) on: opportunity develop new redis- General the first requirements plans legal set forth tricting consistent Supreme disrupt if will not doing the North Carolina Court so general election; and event timing (2) of the 2002 develop plans in defendants are unable to new court, accordance with the timetable established the trial proposed to seek remedial trial court authorized and directed adopt temporary plans, or interim remedial review North and North Carolina House of for the Carolina Senate
STEPHENSON v. *2 Representatives, preclearance thereof, seek for use in the cycle. 2002 election legislative redistricting
2. Elections— North Carolina —2001 plans on remand —instructions court,
The trial during stage the remedial of the instant proceeding seeking Assembly’s to correct the General unconsti- tutional enactment of its legislative redistricting plans violation of the (WCP) whole under Article 3(3) 5(3) Constitution, Sections of the North Carolina comply requirements instructed on remand with the following including: compliance (1) law, to ensure full legisla- federal required tive Voting Rights districts Act (VRA) of 1965 prior shall be districts; formed creation of non-VRA (2) VRA districts be must formed consistent with federal law and a having retrogressive upon minority manner no voters; effect (3) the maximum practicable, extent such VRA districts comply shall requirements also with the legal of the WCP herein redistricting plans established for all throughout districts the State. legislative Elections— North Carolina —
plans general rules — following general rules shall be for all redistricting used throughout Carolina, and districts including: North (1) any
forming legislative districts, new deviation ideal from the population legislative plus for district shall be at or within or percent purposes compliance five minus with federal “one- person, requirements; (2) one-vote” having counties a 2000 population support census sufficient to the formation of non- one Rights Voting (VRA)legislative Act of 1965 falling district at or plus percent within or minus five popu- deviation from the ideal “one-person, requirements, lation consistent with one-vote” county provision (WCP) requires physical whole bound- any legislative aries of such non-VRA tra- district not cross or any geographic county; verse the exterior line (3) such when legislative two or more non-VRA districts be created within county, a single plus which fall or districts at within or minor five percent population deviation from the ideal consistent with “one- person, requirements, one-vote” single member non-VRAdistricts shall county, be formed within said non-VRA and such districts compact shall be and shall geographic not traverse the exterior boundary any county; (4) having such in counties a non-VRA IN SUPREME COURT THE v. BARTLETT dis- support legislative least
population pool which cannot one popula- plus percent or minus five of the ideal trict at or within alternatively, having or, counties for a district tion districts, pool which, if into would population divided non-VRA plus percent five “one- comply with at or within or minus requirements standard, of the WCPare met person, one-vote” whole, con- by combining or the minimum number grouping necessary plus comply with at or within tiguous counties standard; percent “one-person, (5) within minus five one-vote” or any multi-county compact contiguous grouping, districts such formed, plus minus with the at or within shall consistent boundary lines or tra- percent standard, whose do not cross five *3 multi-county provided, grouping; “exterior” line of the verse the any by resulting however, that the interior lines created of groupings may be or traversed in the creation such crossed multi-county only grouping but to the extent districts within said per- necessary plus five comply with the at or within or minus “one-person, standard; (6) underlying intent cent one-vote” possible; thus, to the maximum extent WCP must enforced necessary comply only the smallest number of counties plus percent “one-person, at or within or minus five one-vote”' combined, shall be and communities of interest should standard compact contiguous in of and elec- be considered the formation any any plans, districts; including and (7) toral new compli- case, depart proposed remand in this shall from strict on requirements only legal with the set forth herein to the ance necessary comply law. extent with federal part part. concurring dissenting and Justice Orr dissenting. Justice Parker dissenting.
Justice Butterfield appeal pursuant prior determination 7A-31(b) § On to N.C.G.S. summary by Appeals allowing judgment the Court of from an order declaratory injunctive plaintiffs judgment for an for and and order legislative redistricting violate holding relief 2001 State February Constitution, the North Carolina both orders entered County. by Jenkins, J., Superior Court, Johnston Heard Special Supreme April in the Session Court Maupin Taylor Ellis, P.A., by & A. and C. Thomas Farr James Dever, III, plaintiff-appellees. for
STEPHENSON v. Roy Cooper, Attorney General, Speas, Jr., Edwin M. Chief General, Deputy Attorney Smiley, Tiare B. S. and Norma Harrell, Peters, Nichols, Special Alexander McC. and Susan K. Deputy Attorneys General, defendant-appellants; for Block, LLC, by Jr, pro vice, Verrilli, Jenner & Donald B. hac co- defendant-appellants Basnight counsel Marc and James B. for Black. Patterson, & Harkavy Lawrence, L.L.P, by Burton Craige; and Fuleihan, Academy Neill S. on the North Carolina behalf of Lawyers, Trial curiae. amicus Ferguson Stein Chambers Wallas Adkins Gresham & Sumter PA, by Chambers, Adam Stein and Julius L. on behalf North Carolina State Branches the National Conference of People, Association the Advancement Colored amicus for curiae. LLP, Exum, Jr., Smith Moore G. F. James and Julia Youngman, Gulley, individually Wilbur and as behalf of District, Senate; Jordan, Senator the 13th indi- N.C. Luther for vidually Senate, District, as Senator 7th N.C. for Legislative Weinstein, as Chairman Black Caucus; David individually District, Senate, and as Senator the 30th Development as Co-Chairman the Senate Rural Committee; Representative Nye, individually Edd and as *4 for District, C. Representatives; the 96th N. House Victor and Farah, individually registered and as resident and voter of County, Wake and as candidate the House for Representatives, themselves, on and their con- behalf of stituents, persons similarly situated, and amici all other curiae. Everett, by and A.
Everett Robinson O. Everett and Seth Neyhart, on Americans the behalf of for Defense of Rights, Inc., Constitutional amicus curiae. Elam, Tomlin, Hunter, Benjamin PLLC, by Hunter, & Robert N. Jr., Foreman, Kindley, Lee McLean Marcus D. behalf of Ray W. Peaslee, Moore, Brewington, William Kenneth Robert Mitchell, McMillian, D. William Franklin Kellon Cecelia Parker, Henry Ferguson Taylor, McKoy, Gilbert amici curiae. v. BARTLETT pro vice; Sinder, A. PLLC, by Scott hac Scott,
Collier Shannon the PLLC, by Anthony Biller, on Bennett, Coats & behalf of Democracy, Project Voting Liberty and the Center DKT for amici curiae. County III, W. Pender County, by Thurman Carl Pender Attorney, curiae. amicus
LAKE,Chief Justice. question impres- presents a law of first instant action state leg- challenge a to the The case arises from state sion for Court. plans adopted redistricting islative 2001, upon the basis that these violate
November (the Constitution).1 Constitution the North Carolina Carolina, Plaintiffs, registered voters in North citizens and contending that, under Article suit on 13 November 2001 filed collectively Constitution, referred 3(3) 5(3) of the State Sections “Whole-County the (the WCP), Provisions” General as the Assembly may creating and House of not divide counties Senate necessary comply except to extent Representative districts with federal law. to the defendants removed this case
On November Eastern North District Court for the District of United States On District remanded the Carolina. 20 December Court Stephenson Bartlett, Supp. 2001). F. (E.D.N.C. 2d 779 case. stated, remand, among things, its order of District Court other redistricting process primarily was matter that the within province states, plaintiffs challenged legisla- had the 2001 plans solely pro- on the basis of state constitutional tive complaint “only law,” visions, that issues of and that raises state inap- from defendants’ removal of this suit state court was therefore subsequently propriate. 782-83, Id. filed notice of 786.Defendants appeal from District order with the United States Court Court’s Appeals for Fourth Circuit. The Fourth Circuit denied defendants’ stay motion to the District Court’s order remand. February 2002, granted plaintiffs’ trial court motion
On *5 summary ground legislative on that the 2001 redistrict- judgment plan, 1C, redistricting was known as Senate Plan ratified on 1. Senate plan, redistricting 2001. as the House Plan was November The House known Sutton plans redistricting We refer to col- also ratified 13 November 2001. hereinafter lectively legislative redistricting plans.” as the “2001 STEPHENSON v.
[355 ing plans violate the State day, Constitution. That same the trial court entered a declaratory remedial order granting injunctive both pursuant relief to Rules 57 and 65 of the North Carolina Rules of Civil provided Procedure. The order pertinent part: of the trial court 1. I, Article pro- Section 3 of the North Carolina Constitution every vides that right under North Carolina law “should be exer- pursuance consistently cised of laws and with the Constitution I, the United States.” provides Article Section 5 that “no law or ordinance of the contravention or subversion” of the any United States Constitution lasting “can have force and . . . effect.” I, Court concludes that Article Sections [T]he 5, require that the North Carolina Constitution should be any applicable provisions harmonized with law, of federal so as any to avoid conflict between the North Carolina Constitution and federal law. interpretation Under a I, harmonized Article Sections and 5 and Article 3(3) 5(3), Sections the North Carolina prohibits Assembly
Constitution dividing General from coun- separate ties into districts, except Senate and House to the extent that counties comply Thus, must be divided to with federal law. preserve county must lines the maxi- possible, except mum extent to the extent counties must be comply divided to Act, with Section 5 of the VotingRights to com- ply with Section 2 Voting Rights Act, comply of the and to Constitution, the U.S. including one-person the federal one-vote requirements .... legislative plans]
3. The divide counties [2001 necessary comply more than are Voting Rights with the Act or one-person the federal requirements, one-vote and therefore vio- late the North Carolina Constitution. permanently enjoined
The trial court defendants “from conduct- any primary ing general or election under the 1992Senate and House Plans, legislative any redistricting plans], other any divide counties for (a) reason other than: the creation of districts preclearance needed to obtain Voting under Section 5 of the Rights Act; (b) liability the creation of districts needed to avoid under Voting Rights Act; Section (c) maintaining population range approved deviation [by between districts within the limits Supreme jurisdictions prohibit United States the divi- Court] separate districts; any sion of counties into (d) other *6 360 v. BARTLETT
STEPHENSON (2002)] 354 N.C. [355 necessary the comply are to United State divisions that [s] applicable Finally, and federal law.” the trial court Constitution provided that, parties, all the vot- stayed fairness to its order out- ers, taxpayers, present constitutional issues and the request injunctive relief for the 2002 election plaintiffs’ come of for cycle by Court. should be decided this February plaintiffs’ 2002, “Emergency Court allowed
On this 26 Appellate Suspension North Petition for Carolina Rules by Procedure,” setting stage expedited direct review this thus By Thereafter, appeal filed Court. Court. defendants notice of enjoined 2002, order dated 7 March this Court defendants unanimous primary May 2002 conducting from elections on 7 for the office of Representative Senate office of Senator in the North Carolina and the Representatives, pending in the determina- North Carolina House tion of the constitutional issue this Court.
On released 21 March the United States Census Bureau population data for State of Carolina. 1990 2000 2000, North From population percent, 8,049,313. increased 21.4 state’s reapportion Pursuant to its constitutional mandate to redistrict and Const, census, N.C. art. legislative districts after each decennial Assembly 3, 5, redis- on 13 November enacted §§ tricting reapportionment plans for Senate the House of Representatives, 13, 2001, 458, 459, Acts of Nov. N.C. Sess. chs. 2001 Laws-, (cid:127) —. The Plan 51 of 2001 Senate divides 100 counties into map, A). (2001 different Senate Attachment Ch. districts House Sess. Laws-. The 2001 Plan divides of 100 counties map, B). into districts House Ch. (2001 different Attachment Plan, Laws-. Under the 2001 Senate a number of Sess. many districts, as six counties are divided into as four to and un- Plan, der the 2001 House a number of counties are divided into as many districts. N.C. Sess. four thirteen Chs. Laws-,-. instance, County population
For has a 2000 Pender census 41,082, a far population single-member number below the ideal for a County 67,078. brief, House seat of In its amicus curiae Pender party political states it “has no controls interest which prospects North Carolina General or the re-election County simply particular legislator.” Rather, “Pender wants its citi- opportunity present zens to have the a cohesive voice to address particular rapid county.” wealth, it as a low growth needs faces plans, the citizens of Pender Under the IN COURT THE SUPREME v. BARTLETT incorporating County among eight legislative are districts distributed Laws-, Chs. 2001 N.C. Sess. fourteen different counties. *7 County legislative result, -. As a Pender maintains that the 2001 muted the voices plans have “balkanized” the “a” will be sensitive seeking legislator its to choose who of citizens responsive unique needs. to their of below, plaintiffs presented forecast their In the trial court citizenry’s protecting equal right to vote on the issue of the evidence vitality the ensuring the continued of State’s democratic deposition testimony regard, plaintiffs of processes. In this submitted NCFREE, Davis, nonpartisan organi- N. of John Executive Director State, forecasting within who has been election results zation correctly 2000, projected out Carolina since 1992.In Davis 193 North Davis, of According 200 North Carolina elections. the number of parties major political dropped has competitive for both Senate seats only of 50 14 under 1992 Plan to 6 out under from out of 50 the Senate Similarly,Davis that 2001 Plan. asserts the number com- the Senate dropped out of under the 1992 petitive House seats has from 32 120 only 14 2001 Plan. House Plan to out of 120under the House period filing legislative The for offices for the November original registration of who closed on 1 March 2002. The those 2002 elections that in for elections reflects legislative filed for offices these 50, Senate, redistricting plans, 30 out or legislative under the 2001 sixty percent, will the November 2002 of the seats be.uncontested seats, fifty-nine House, In the 71 out 120House general election. general in the 2002 election. percent, will be uncontested November Assembly, members, or Overall, 170 in the General 101 out of seats opposition general in the fifty-nine percent, will face 2002 elec- differently, represented these voters within districts tion. Stated apparently meaningful have choices will no electoral 101 members cycle legislative redistricting 2001 in the 2002 election under the plans. ANALYSIS
STATE CONSTITUTIONAL [1] The primary question for our review is whether the General plans, Assembly, enacting legislative redistricting violated the 2001 that the con WCP of State Constitution. Defendants contend mandating be divided are that counties not stitutional requirements Voting wholly unenforceable because Plaintiffs, hand, the State on the other assert Rights Act. creating when requires counties not be divided Constitution IN THE COURT SUPREME v. except legislative apportionment plans required by state to the extent federal law. Legislative Redistricting
The State Role in
apportionment
primarily
is a matter
districts
respective
Emison,
25, 34,
v.
reserved
states. Growe
507 U.S.
122 L. Ed.
(1993) (stating
2d
that “the Constitution leaves
primary responsibility
apportionment
States
of their fed-
congressional
Chapman
eral
legislative districts”);
and state
see also
Meier,
v.
420 U.S.
42 L. Ed. 2d
(1975); Reynolds
Sims,
377 U.S.
12 L. Ed.
(1964). Moreover,
2d
concerning
proper
application
“issues
construction and
..
of.
finality
Constitution of North
can ... be
Carolina
answered with
[only]
Preston,
this Court.” State ex rel.
Martin
*8
449,
473,
385 S.E.2d
(1989);
Shopping
479
see also
Ctr.
PruneYard
v.
Robins,
81,
74,
741,
447 U.S.
64 L. Ed.
(1980);
2d
752
Murdock v.
Mayor Memphis,
626,
429,
590,
(1874);
87 U.S.
22 L. Ed.
441
of
Arrington,
633,
v.
311
643,
254,
N.C.
319 S.E.2d
(1984). Although
260
strong presdmption
there is a
that acts
of
General
are
constitutional,
duty
it is
Court,
nevertheless
of this
some
instances,
Preston,
to declare such acts unconstitutional.
The State Assembly, Constitution General “[t]he the first regular convening every session of after the return decennial population of Congress, census taken order shall revise sen- apportionment ate and districts among of Senators those dis- tricts” and representative appor- “shall revise the districts and the Const, Representatives tionment of among those districts.” N.C. art. II, specifically 5. The State §§ Constitution enumerates four limita- upon authority tions redistricting reapportionment and Assembly, General summarized as follows:
(1) Representative Each Senator represent, shall as nearly possible, equal an as number of inhabitants. v. representative shall at all times district
(2) Each senate territory. contiguous consist of a county be divided in the formation senate
(3) No shall representative district. representative districts established, the senate and
(4) Once Representatives shall apportionment Senators and and the population until the next decennial census remain unaltered Congress. taken order Const, above, WCP, limitation II, art. the third §§
See N.C. county formation of a sen- provides shall be divided in the that “[n]o Const, district,” shall 3(3), ate N.C. art. and that § “[n]o Const, district,” art. representative of a divided the formation II, 5(3). § Legislative Redistricting Role in
The Federal primary Although respective legislatures state maintain dis reapportionment legislative responsibility redistricting Interpretation procedures comport with law. tricts, must federal such upon process is unneces redistricting of the federal limitations Nonetheless, these sary case. as to the resolution of the instant legisla requirements necessarily upon the state serve limitations describe, helpful at least process, find it tive we applicable include briefly, law in this area. The the federal pop “one-person, principles some measure of requiring one-vote” (1) articulated equality state districts as ulation between Reynolds v. 186, L. Carr, (1962), 7 Ed. 2d Baker v. U.S. *9 progeny; and 533, 506, (2) L. Ed. and their Sims, 12 2d 377 U.S. amended, protect against to (the VRA), Voting Rights Act 1965 Amendment, proscribed discrimination, as under the Fifteenth voting 266, Lopez Monterey 1973-1973p Cty., v. 525 U.S. (1994); 42 269, §§ U.S.C. 728, (1999). 142 L. 2d 734 Ed. provides polit- generally that states or their 2 of the VRA
Section any voting qualification prereq- or impose ical subdivisions color, a of race or citizen’s impairs dilutes, or on account uisite that repre- process political and to elect opportunity participate in the Thornburg 1973a, 1973b; 42 §§ of his or her choice. U.S.C. sentatives pur- primary 43, 25, (1986). Ed. 42 The Gingles, 30, U.S. 92 L. 2d v. pose underlying 478 i.e., a retrogression, 5 of the VRAis avoid section aof procedures place which the members voting would change position than minority group in a less favorable language racial or IN THE 364 SUPREME COURT
STEPHENSON v. BARTLETT they occupied change respect opportunity had to the before effectively. 51.54(a) (2001); to vote 28 C.F.R. see also Beer § v. United States, 130, 140-42, 629, 425 L. Ed. (1976). U.S. 47 2d 638-40 To effec- objectives, requires jurisdictions its VRA tuate remedial “cov- any change ered” section 5 that seek to enact or administer in a standard, voting practice, procedure proposed to submit the change Department pre- to the United States (USDOJ) Justice declaratory or, alternatively, ruling clearance to obtain a from the United States District Court for the District of Columbia. 42 U.S.C. 1973c; Bd., 320, see also Reno v. Bossier Sch. 323, § Parish 528 U.S. 845, L. (2000). 145 Ed. 2d 853 jurisdiction State North Carolina is not a covered for sec- purposes. Lopez, 280, 5
tion
See
525 U.S. at
142L. Ed.
741 (not-
2d at
ing
currently
. . .
partially
“seven states
are
California,
covered:
Florida, Michigan,
Hampshire,
York,
Carolina,
New
New
North
Dakota”). Forty
South
counties, however,
this State’s one hundred
jurisdictions
subject
requirements.
are covered
and are
to section 5
42
1973c;
app.
pt.
See U.S.C.
28 C.F.R. 51.4(c)
51,
§
§
&
at 96-98
(2001);
Reno,
630,
634,
511,
Shaw
509 U.S.
125L.
2d
Ed.
520
voting changes
When the State
counties,
enacts
that affect these
changes
precleared
they
Lopez,
must
before
are administered. See
280,
U.S.
142
L. Ed. 2d at 740-41 (stating that United Jewish
Williamsburgh,
Carey,
Inc. v.
430 U.S.
IN THE SUPREME policy the county general to the of and functions of a bear reference portion general State, integral an administration and are in fact O’Berry Cty., N.C. 151 policy.” Mecklenburg 198 of State quoted Martin, 208 N.C. S.E. at S.E. in 180 (1930), in state- agents administering Counties serve as the State’s functioning governments while as local that programs, wide also provide rules to their citizens. This devise and essential services importance county sys- recognized has of to our long Court the the government: tem of . . . . . organized political of state . are for counties principal purpose in purposes. leading
and civil . . . The and political and organization them to effectuate the establishing is[] state, respect purposes general civil administration of the in its supervision control, policy require direction, and which local finance, education, provisions of for the such as matters local measure, public jus- . poor, large . . in administration of mainly, powers government through them, It that the of tice. is directly upon people operate people, and the direct reach and necessary part government. They are a and control indeed employed in car- parcel of the subordinate instrumentalities policy in of rying general out the of the state the administration They in free government. distinguishing constitute feature our them, system large degree, government. through of It is people enjoy self-government, from arising benefits local perpetuate independence spirit and love and foster and liberty cen- that withers and dies under the baneful influence of systems government. tralized Cty., (1884); see White v. Commissioners Chowan Cty., 150-51, Ry. Mecklenburg Co. v.
also Southern S.E.2d 439-40 everyday many touching areas play
Counties vital role county example, Carolinians. For each effects lives North jail justice borders, its has a and a within each administration county usually A. arising are tried. courthouse where cases Wicker, County Government in Fleming Bell, & Warren Jake county 938-39, Each a sher- (4th 1998). ed. elects North Carolina watershed at 930. and water conservation districts oversee iff. Id. Soil every county. Id. at 682-83. drainage issues almost programs and responsible administering public schools Each *11 IN THE COURT 366 SUPREME v.
STEPHENSON BARTLETT (2002)] N.C. 354 [355 way county at surprisingly, of a board of education. Id. 823-29. Not identify people their custom- themselves as residents of counties and arily frequently government county interact most with their at the identity generally at vii-xi. Based com- level. See id. on clear impetus provide, preservation mon interests that counties for the county lines, easily WCP, within as reflected understood redistricting within the context. long-standing county a respecting
There is tradition of lines dur- ing redistricting process Indeed, in this State. custom years practice arose federal hundreds before limitations were placed upon reapportionment procedures state redistricting and dur- ing constitution, the 1960s. North initial Carolina’s state enacted 1776,provided representation in both the Senate and House Orth, on of Commons was based “counties.” John V. See The North Carolina State Constitution: A 81 (1993) Guide [here- Reference Orth, inafter State In the enactment of amendments in Constitution]. Assembly provided that “counties” were not be “county” divided between two more senate districts and that each representative. was to guaranteed least one See id. The 1868 provided County Constitution “no shall be divided forma- District,” of a tion Senate Senators, unless entitled two or more provided the Representatives and further House of shall be com- posed of respectively, 120 members “to be elected the Counties according population,” their with each have at least one Const, Representative. art. 6 (amended 1968). §§ Development Redistricting Jurisprudence
The of a Modern Seawell, Supp. (M.D.N.C. F. 1965), per Drum 877 aff’d curiam, L. 383 U.S. 16 Ed. 2d (1966), three-judge panel the United States District Court for the Middle District of North Assembly’s Carolina ruled that the General legislative redistricting plans “one-person, requirement violated the one-vote” of the United States Constitution and were void. therefore The District Court enjoined the State using plans from the unconstitutional in the 1966 cycle. election Id. at The General thereafter enacted plans compliance revised with the District Court’s separate mandate but did divide counties into legislative districts. February 1966, On 18 the District Court found the revised to be Seawell, Supp. 922, constitutional. Drum 250 F. n.2 (M.D.N.C. 1966). The revised districts were thereafter used 1966, 1968, and 1970elections.
IN COURT THE SUPREME v. Assembly proposed decisions, the General Following the Drum to the Constitution’s redis amendments in 1967 constitutional May 31, reapportionment provisions. See ch. Act tricting proposed for the amendments N.C. Sess. Laws 704. Representatives prohibition reincorporated Senate and House of *12 North Carolina Subsequently, the against the division of counties. Id. comprehensive Study completed a State Constitution Commission Orth, State of State Constitution. See review and revision 1968, North Carolina 20. In the voters of Constitution at November reapportionment redistricting approved amendments to the and & See Sanders John provisions in the 1868State Constitution. John L. North Carolina: Lomax, Jr., F. Amendments to the Constitution of Chapel Hill, Gov’t, 1997). of of N.C. at 1776-1996, (Inst. at 15 Univ. representation in the Senate and These amendments based both 1968 “one-person, upon requirement one- Representatives House of of Orth, at 81. amendments also vote.” State Constitution These See required preservation forming lines when districts. See of pro approved the Assembly In reviewed and 1969, id. the General Constitution, July 1258, ch. posed 2,1969, Act of revisions of the State 1970, North Carolina 1461, Laws in November 1969 N.C. Sess. and known as the a revised amended state constitution voters ratified and Sanders, Constitution, L. Our Constitutions: An 1971 see John Sec’y Marshall, Dep’t of of Perspective, in Elaine F. N.C. Historical 1999-2000, University State, 125, at 134.As Carolina Manual North Orth, respected a state highly Law Professor John North Carolina scholar, Constitution, the state’s noted, “The 1971 constitutional It was instead third, product a haste and social turmoil. was not... carefully by matured crafted good long a and government-measure, lawyers politicians, designed con to consolidate the state’s Orth, it.” past, not to break with serve the best features grammatical 20. The Constitution included Constitution at 1971 respect changes to the Constitution to the 1968amendments pro preserved language reapportionment, but redistricting and Const, 3, 5. N.C. art. §§ the division counties. hibiting Constitution, Assembly with the the General Consistent 1971 plan divide counties in 1971 that did not enacted 483, 1, 1971, ch. 1971 Act of June separate legislative into districts. 1177, N.C. Sess. 412; July 21, Act ch. N.C. Laws Sess. reapportion- precleared the 1971 USDOJ Laws 1743. The plans through used the 1972 plans, ment and those were elections. Assembly again redistricting plans
In enacted Representatives for the which did not Senate House divide July 1191; Act of ch. Laws counties. Sess. Act of October ch. Sess. Laws USDOJ preclear however, legislative redistricting plans, refused to the 1981 they majority-minority single-member because contained no districts submerged minority cognizable populations large within multi- reasons, interposed objec- an member districts. For these the USDOJ “whole-county” by Carolina, tion to the use of a criterion North as applied plan submitted, within then insofar as it affected forty counties in covered North Carolina section 5 of the clear, however, response VRA. The USDOJ made its to the preclude submitted North Carolina at that time did not the State preserving county from lines formulating whenever feasible in its new districts. response determination, the USDOJ’s administrative April
General convened and enacted revised *13 plan House, creating for the four African-American sin- gle-member districts one African-American two-member district. twenty-four 11, The Plan February House divided counties. Act of 4, (1st 6; April ch. 1981 N.C. Sess. Laws Extra 1982) Sess. Act of 27, 1982, 1982) ch. 1981 N.C. Sess. Laws Extra (2d Sess. 15. On 30 April 1982, precleared plan. USDOJ the House redistricting Similarly, the General a redistricting plan enacted revised Senate, for the precleared, which the USDOJ also divided eight counties and created single-member two African-American districts. April 27, 1982, Act of (2d ch. 1981 N.C. Laws Extra 1982) Sess. Sess. 15. Cavanagh Brock, Supp. (E.D.N.C. 1983), 577 F. a case
originally court, in filed state the defendants removed the case to fed- affirmatively eral court and advocated invalidation of the WCP. Cavanagh, The Court in purporting apply District state law a sev- erability analysis, objection determined that the USDOJ’s to enforce- forty ment of the WCP as to the covered North Carolina counties precluded sixty also its in enforcement noncovered counties.2 Id. at 181. Cavanagh only recognized challenge 2. The District Court in a state was struggled suitably asserted and to determine whether abstention would be “most effec- by allowing declaratory judgment tuated seek a defendants in state court on that Supp. Court, ultimately however, narrow 577 F. issue.” at 180-81 n.4. The concluded inappropriate public early
that abstention was “in view of the substantial interest affecting challenges processes resolution fundamental electoral involved” and STEPHENSON v. BARTLETT Legislative Redistricting The WCP and the 2001 Plans expanded question The Court, light VRA, before is entirely unenforceable, whether the WCP is now as defendants con- tend, or, alternatively, whether the WCP remains enforceable throughout preempted the State to the extent not or otherwise su- by perseded federal law. preempts When Supremacy federal law state law under the Const,
Clause, it
law
renders the state
effect.
invalid
without
U.S.
VI,
2 (“This constitution,
art.
cl.
and the laws of
United
States
pursuance
which shall be made in
. . .
thereof,
supreme
shall be the
land;
every
judges
law of the
and the
thereby,
state shall be bound
any
any
thing
contrary
in the constitution or laws of
state to the
notwithstanding.”);
see also Pearson
C.P Buckner Steel Erection
Co.,
239, 244,
821 (1998).
S.E.2d
primary inquiry
determining
provision
whether
state
preempted
federal law is to ascertain the intent of Congress.
Guerra,
Fed. Sav. & Loan Ass’n v.
479 U.S.
California
L.
2d
(1987) (noting
may supersede
Ed.
that “federal law
law
ways”).
may
state
in several different
Congress
state an intention
preempt
express terms,
state law in
id.,
congressional
intent to
may
preempt
comprehensive
be inferred where
federal scheme is
imposed
law,
an
occupied
area
state
leaving state law “no
room” in which
operating,
to continue
id. at
93 L. Ed. 2d
alternative,
As a
Congress
third
“in those areas where
has not com-
pletely displaced
regulation,
pre-
state
law
federal
nonetheless
empt
actually
state law to the extent it
conflicts with federal law.”Id.
added).
(emphasis
“The
of whether
regu-
test
both federal and state
may operate,
lations
regulation
give way,
or the state
must
is whether
regulations can
impairing
super-
*14
both
be enforced without
the federal
of
. .
Growers,
intendence
the field
..” Florida
&Lime Avocado
Inc.
Paul,
132, 142,
248,
(1963)
373 U.S.
10 L. Ed.
(noting
2d
256-57
operate,
formed).
where federal and state law both
a “coexistence” is
Congress
preempted
Because
has not
the entire field of state legisla-
reapportionment,
tive
and
in
state
this area of
law
superseded
not otherwise
must
federal law
be accorded full
Growe,
34,
force and
400;
effect. See
the law its of state was “not un- Id. certain.” COURT IN THE SUPREME
370 v. similarly interplay between delineates State The Constitution inherent, State have the people law: “The of this and state federal sole, government right regulating the internal exclusive pur- every right shall be exercised police thereof, . . . such but consistently Constitution of the United with the of law and suance Const, I, law or ordinance the State § N.C. art. States.” “[N]o the United States Constitution or subversion contravention [of any binding force.” N.C. can have government of the United States] Const, I, 5.§ art. place explicit lim- several people of North Carolina chose Assembly’s legislative upon execution of the itations express limitations, includ- reapportionment process. None of these VRAor federal WCP, facially are with the other ing the inconsistent Thus, formulating when significant the State retains discretion law. pur- districts, long so as “effect” of districts created require- “whole-county” a criterion or other constitutional suant to minority voting strength in violation of fed- ment not dilute does eral law. concerning proper Constitution of construction
“Issues
general princi
governed
the same
North Carolina ‘are
the main
ples
meaning of all written instru
ascertaining
which
control
”
Perry
Preston,
(quoting
S.E.2d
As
of our constitutional
organic law and of the
give effect
the intent of the framers of the
people adopting
Perry,
STEPHENSON v. BARTLETT
accomplished by
promulgation”
to be
its
when interpreting the State
light
requirements.
Constitution
federal
Sneed Greensboro
City
Educ.,
613,
Bd.
264 S.E.2d
(1980);
see
Perry,
also
We that upon observe the State Constitution’s limitations redis- tricting apportionment uphold what Supreme the United States districting principles.” Shaw, Court has termed “traditional See U.S. at L. principles 125 Ed. 2d at 528.These include factors such “compactness, respect political as contiguity, and subdivisions.” (emphasis Supreme Id. added). “empha- The States United Court has important they that these criteria are not because are consti- size[d] tutionally required they they objective are not—but because are — may factors that serve to defeat a claim district has been gerrymandered on racial lines.” Id. L. 125 Ed. 2d at 528-29 (citation omitted). recognize that, We application like the or exercise rights, of most constitutional right people of the of this State to legislative districts which do not divide See, counties not absolute. e.g., Tribe, Laurence H. (2d American Constitutional Law 12-2 ed. § 1988); John E. Rotunda, Nowak & Ronald D. Constitutional Law (5th 1995) 16.7 ed. (noting although provisions § of the First appear absolute, they subject balancing Amendment are of inter- ests). reality, an application inflexible of the no longer WCP is operation attainable because of the of the VRAand “one-person, standard, incorporated the federal one-vote” within the State Constitution. mean, however, This does not that the WCPis nullity legal purposes preserved rendered a if its beneficial can be consistent with federal law and reconciled with other constitu- state guarantees. tional legislative redistricting violate the WCP for rea- compliance
sons unrelated to Although federal law. the WCP keep county demonstrates a clear intent to boundaries intact when- possible during legislative redistricting ever process, the 2001 redistricting plan Senate 51 of divides 100 counties into different plan Senate districts. The 2001 redistricting House divides 70 out of 100 counties into different House districts. The General partisan incumbency advantage protection consider in the application discretionary decisions, Gaffney of its see Cummings, L. (1973), U.S. 37 Ed. 2d 298 but it so in must do conformity with the State Constitution. To hold otherwise would abrogate “objective the constitutional limitations or constraints” that people imposed of North legislative redistricting Carolina have
372 v. BAKTLETT (2002)] N.C. 354
[355 Accordingly, the WCP reapportionment in the State Constitution. and upon during binding remains valid and fully explained process, as more redistricting reapportionment superseded federal law.3 below, except the extent Objection Redistricting Plan Effect of 1981USDOJ v. Brock District Court in Cavanaah Decision of Federal correspondence during USDOJ received from the Focusing objection 1982, that the USDOJ’s to the 1981 and defendants assert plans the WCP unen legislative redistricting now renders 1981 State Brock, Supp. They Cavanagh v. F. also contend that 577 forceable. Finally, they 176, assert that the resolution of this issue. controls provisions, plaintiffs’ interpretation when of the State constitutional VRA, coupled of will in a rewrite of the State with the effect result interpretation of the a mechanical same. Constitution and objection leg- proposed to the regard With to the USDOJ’s 1981 majority- any redistricting plans plans islative that failed include — minority indicated that it unable to VRAdistricts —the USDOJ was application of the WCP at that time conclude that North Carolina’s discriminatory purpose forty or effect in the covered did not have pointed USDOJ out In a letter dated 30 November counties. analysis prohibition against dividing that its forty “showfed] dis- in the formation of Senate House covered counties predictably requirefd], large, to the of multi- tricts led use ha[d] Reynolds, William Bradford Assistant member districts.” Letter from Attorney General, Division, Department Justice, Rights Civil U.S. Brock, Secretary-Director, N.C. State Board of to Alex Executive Thus, in 1981) 1981 USDOJ (Nov. Elections letter]. [hereinafter analyzed reviewing amendments, the the 1968 constitutional USDOJ in the that included these amendments context large, districts. The USDOJfurther stated this letter: multi-member respect jurisdictions “This to the covered determination way Voting Rights regarded Act should in no Section of the county policy preserving following from precluding the State Indeed, its formulating lines new districts. whenever feasible many only states, subject preclearance require- policy to the respective have under their state 3. We note that other states faced similar issues and, possible, lines main- where have concluded that should be constitutions Reapportionment Assembly, 1237, 1248-49, re Colo. Gen. P.3d tained. See In Cenarrusa, 571, 574-75, (1984); Fischer (2002); P.2d 527-28 Hellar 106 Idaho Elections, (Ky. 1994); Bd. State ex rel. Lockert v. State 879 S.W.2d Crowell, 1982). (Tenn. 631 S.W.2d 714-15 IN THE SUPREME COURT
STEPHENSON v. applicable.” merits of Section where subsequent Id. In a letter January 1982, specifically dated 20 the USDOJ concluded that “the large, effectively use of submergefd] multi-member districts sizable population[s] majority concentrations of black into a white elec- torate.” Letter from William Reynolds, Attorney Bradford Assistant General, Division, Rights Department Justice, Civil U.S. to Alex Brock, Secretary-Director, Executive N.C. State Board of Elections *17 (Jan. 20, 1982) 1982 basis, USDOJ On this [hereinafter letter]. precleared. 1981 were not apparent
It from the full context of these letters that the plans, submitted, USDOJ concluded that the large as then would in result having multi-member districts a retrogressive effect on minor- ity voters. Nowhere these letters is there a statement that the amendments themselves are considered either unconstitutional or conjunction unenforceable in an acceptable plan with redistricting having retrogressive effect, no have defendants offered no authority proposition. supporting such a opinion
Our that the 1981 and 1982 USDOJ letters do not abro- WCP gate by is buttressed the USDOJ’sissuance of its adminis- guidance trative concerning redistricting states under the VRA. guidelines provide: These “[Cjompliance with Section 5 of the Voting Rights require jurisdiction depart Act to from strict adher- ence to example, certain its criteria. For criteria require jurisdiction which . county, city, precinct to . . follow or . . may give way boundaries . to degree need to avoid some retro- gression.” Concerning Redistricting Retrogression Guidance Act, Under 5 of Voting Rights 1973c, Section 42 U.S.C. 66 Fed. Reg. (Jan. 18, (emphasis 5413 2001) added). Rights The USDOJ Civil clearly political Division following boundaries, considers including county lines, acceptable “may” to be an criterion but one have way give degree” “to some retrogression. order to avoid Significantly, both the USDOJ’sletters to the State North Carolina and its guidelines only own administrative reflect that states need modify, necessarily application abrogate, whole-county redistricting limitations.
Thus, position our review of the WCP, repre- USDOJ’s on the as response sented its to North Carolina’s submission in 1981and its regulations administrative concerning “whole-county” require- use of ments, facially leads illegal us conclude that the WCP is not unenforceable relative We interpretation to federal law. believe our naturally representation language flows from the of USDOJ’s
374 v. BARTLETT way precluding the State regarded as “should no policy [of its policy preserving lines following a from North Carolina] let- formulating The 1981USDOJ new districts.” whenever feasible merely redistricting plan that terms, disallows a ter, its own complying with “whole-county” without strictly criterion adheres the VRA. 176, Cavanagh, Supp. E voided argue that
Defendants further respectfully disagree below, we WCP. the reasons set forth For Constitution. See interpretation of the State the District Court’s Cty., 247 U.S. Comm’rs Weld Pac. R.R. Co. v. Board Union Vernon, 101 F.3d (1918); L. see also Harter 62 Ed. questions law 1996) holdings on of state do (4th (“Our Cir. denied, 138L. Ed. 2d 1014 courts”), 521 U.S. not bind state cert. 479; Pate, Preston, 449-50, S.E.2d at White v. 325 N.C. at (1997); 304 S.E.2d noted, Carolina courts should first determine previously As North Constitution, interpreted under provisions of the State whether applying a sever- law, with federal law before state ability analysis. Where, are inconsistent *18 here, primary purpose WCP can of the as law, with federal it large degree to a without conflict be effected Assembly maximum to the should be adhered to Also, addressing in the intent of the General possible.4 extent Cavanagh apparently to con- Assembly, failed the District Court whole-county history districts for of North Carolina’s use sider the Cavanagh nearly years prior The Court in cited no to 1964. Assembly in 1968 authority support its conclusion that the General adopt provi- the WCP if that not have intended or desired to would fully Furthermore, applicable in all counties. sion could not be necessary on Cavanagh was conclusion based ruling Court’s whole-county dis- concerning districts. As the 1981 USDOJ letter plans above, objection redistricting the USDOJ’s to the 1981 cussed “whole- proposition that the constitutional not stand for the does county” provisions reasons, per For all these are se unenforceable. holding in reject that the District Court’s we defendants’ contention interpretation of the North Cavanagh in our should be followed Carolina Constitution. reject WCP that enforcement of the
Wealso defendants’ assertion contend, way the State Constitution. Defendants in some rewrites authority interpret preempted Athough this Court’s no federal law has complete compliance applies statewide, acknowledge with federal we that WCP it enforcing priority the WCP. law is the first before among other things, allowing the WCPto retain some measure of enforceability tacitly provisions, i.e., adds new words to these coun split “except ties not be required by to the extent federal law.” fact, Defendants however, compliance overlook the with federal implied, law is not an express but rather an condition to the enforce ability every provision in the Moreover, State Constitution. our holding possible accords the fullest effect to the stated intentions of people duly through adopted their Constitution, subject provisions of place which have remained in without amendment since 1971. “all-or-nothing”interpretation Defendants’ inordinately application, mechanical in its leaving carry no spirit room to out the or intent the State Constitution in contravention time-honored principles of federalism. States, See Printz v. United 521 U.S. 138 L. Ed. 2d needlessly 935-36 This construction burdens unnecessarily millions of citizens complicated and con fusing district lines. Gavanagh, many
Since legislative North Carolina districts have been increasingly gerrymandered widespread to a degree inviting contempt See, e.g., and ridicule. “Red-LightDistrict: It’s time to draw the line gerrymandering,” Diary, John Fund’s Political WSJ.com Opinion Journal from the Wall Street Page, Journal Editorial at http://www.opinionj com/diai'y/?id=105001756 ournal. (Mar. 13, 2002) many (“[ejections routinely semifree Third World nations offer many more choices than North Carolina residents will have” under legislative the 2001 redistricting plans); Rig Election, How to an Economist, Apr. (“In democracy, normal voters representatives. their America, rapidly choose it is becoming the way asserting other around” and that “North long Carolina [has been] outrageous notorious for reapportionment.”) Wethus hold that because the General enacted its 2001 Const, WCP, art. violation *19 n, 3(3), 5(3), §§ these are unconstitutional and are therefore void. Accordingly, properly summary the trial court granted judgment plaintiffs in favor of on this claim.
REMEDIAL ANALYSIS Having determined enacting that defendants violated the WCPin the 2001 redistricting plans, we must next consider the practical consequences any holding required of our and address Supreme remedial measures. The United recognized States Court has “power judiciary require of a reapportion- State to valid 376 v. BARTLETT 409, plan.” Scott, at 381 U.S. a valid
ment or to formulate experience Indeed, argue at 478. both 14 L. Ed. 2d “[r]eason which empowered apportionment invalidate an statute that courts left without cannot be transgresses constitutional mandates Ramirez, 829 v. appropriate relief.” Terrazas means to order Hobbie, 2d 631 So. 1991); see also Brooks v. (Tex. S.W.2d 718 (Ala. 1993). 887-90 compliance WCP with the remedial Plaintiffs contend in which legislative districts requires the formation of multi-member instance, plaintiffs’ “at-large.” For legislators all would elected whole-county plan for the North Carolina percent suggested five Counties, Mecklenburg and require, within Gaston House would having contingent multi-member House district single creation of a “submerged” three Representatives along with the creation of of ten reasons, reject following we VRA districts. For the single-member remedy. plaintiffs' proposed law, appli- clear, practical in view of federal
It as a matter strictly would be incon- WCP in a mechanical fashion cation of the other, provisions law of federal sistent with applied Specifically, cannot be in isolation Constitution. the WCP comport requirements of with other the State a manner that fails remedy reject plaintiffs’ proposed Consequently, as we Constitution. duty of case, we cannot abdicate our recognize in the instant we redressing violation which occurred the demonstrated constitutional Scott, U.S. at 14 L. Ed. 2d present generally case. See at 478. Supreme held that States Court has
Although
United
per
the federal
are not
se invalid under
multi-member districts
124, 142,
Chavis,
Equal
Clause, Whitcomb
403 U.S.
Protection
(1971),
L.
the Court has nonetheless instructed federal
Ed. 2d
the creation of multi-member districts
district courts to avoid
Johnson, 402
apportionment dispute,
stage
remedial
of an
Connor
has
29 L.
The Court
observed
U.S.
Ed. 2d
270-71
containing
districts “tend to become
that ballots
multi-member
thoughtful
allow
considera-
unwieldy, confusing,
lengthy
and too
Chapman,
Amicus asserts that the of will strength voters unlawfully by application be diluted of the WCP in a manner which permits the containing creation multi-member districts predominately nonminority adjacent single-member voters VRA minimum, by districts. At a asserting argument, amicus chal- lenges legal propriety of multi-member districts within North legislative redistricting plans. Carolina Accordingly, we turn to propriety districts, public address constitutional of such in the interest, comprehensive remedy order to effect a to the constitu- tional violation which occurred the instant case. I, 19 provides, perti-
Article Section
of the State Constitution
part,
person
equal
nent
protection
shall
denied
“[n]o
observe,
alleges,
laws.” We
single-member
amicus
that voters in
legislative districts,
districts,
surrounded
multi-member
suffer
disadvantage because,
minimum, they
electoral
at a
permitted
not
are
to vote for the same
of legislators
enjoy
number
representational
represented by
same
or
influence
“clout” as voters
a
legislators
slate of
within a
Conversely,
multi-member district.
voters
invariably
in multi-member
consequences
districts
suffer the adverse
Supreme
unwieldy, confusing,
described
the United States
Court:
unreasonably lengthy ballots;
minority
and minimization of
vot-
strength. Gingles,
ing
44; Chapman,
Constitution
from
State
protection
upon
equal protection
embarking
the laws. Before
an
scrutiny
analysis, we
first
apply.
must
determine the level of
Department
Transp. Rowe,
671, 675,
353 N.C.
549 S.E.2d
—
denied,
—,
(2001),
cert.
U.S.
151L. Ed. 2d
(2002).
Strict
review, applies
scrutiny,
highest
this Court’s
“when
tier
the classi
impermissibly
fication
with the
a
interferes
exercise of
fundamental
operates
right
peculiar
suspect
disadvantage
to the
of a
class.”
White,
204;
Indus.,
STEPHENSON (2002)] N.C. 354 [355 352, 746, 742, N.C. 392 S.E.2d Bailey, No. 326 Drainage Dist. One 355 equal terms right “the to vote on
It settled in this State that is well Preston, 356; 747, see also right.” Id. at 392 S.E.2d at is fundamental 12, Inc., at 454, 481; Indus., at 301 N.C. 385 S.E.2d 325 N.C. Texfi single-mem into both at 149. classification of voters 269 S.E.2d The plaintiffs’ proposed remedial districts within ber and multi-member plans equal necessarily right to implicates the fundamental vote scrutiny terms, applicable standard. and thus strict is the plain- standard, note, instance, for that under applying In such we Plan, in proposed percent House voters multi-member tiffs’ five McDowell, Counties) vote for (Buncombe, and Burke District 36 Representatives, neighbor- voters in contingent of five while only one (Haywood Counties) Swain elect ing District 38 and percent Representative. Likewise, plaintiffs’ proposed in five Senate Guilford, Plan, Rockingham, (Caswell, District 13 multi-member Forsyth Counties) contingent Randolph, Davidson, and voters elect a Senators, neighboring (Rowan five in 19 and Davie of while District classifications, only as voters elect one Senator. These Counties), plans, impermis- plaintiffs’ proposed create an used within remedial similarly upon the among situated citizens based sible distinction they density population of the area in which reside. context, provisions II, we examine the of Article Sections the use
3(1) 5(1) of the State Constitution to determine whether and same single-member of both and multi-member districts within the plan Equal Clause the State violates Protection of Const, I, recognize See that a consti § Constitution. N.C. art. We itself, State, 336, tution violation of Leandro v. 346 N.C. cannot 352, 249, (1997), that all 488 S.E.2d 258 constitutional pari materia, 159, 250 Peoples, 109, must In re 296 N.C. be read (citing City High Point, (1978) S.E.2d 919 Williamson v. denied, 442 61 (1938), S.E. cert. U.S. L. Ed. Board Comm’rs (1979), 2d 297 Parvin v. Beaufort These of con Cty., (1919)). 99 S.E. rules II, require 3(1) 5(1) struction us to construe Article Sections conjunction I, avoid Section 19 such a manner as to Article internal conflict. textual begin stating 3(1) 5(1)
Article Sections that “[e]ach Representative] nearly may be, an represent, shall as Senator [or embody equal principle words number of inhabitants.” These “one-person, proviso one-vote.” The that follows in each section adds “the Representative] rep- number of inhabitants that each Senator [or purpose by being dividing population resents determined for this represents by he district that the number of Senators [or she] Representatives] apportioned provisos to that district.” These [or arguably contemplate that, stating multi-member districts apportionment purposes, each member of General represents such from a district a fraction of the voters in that district. principle “one-person, preserved one-vote” is because the *22 number of voters each member’s fraction the multi-member district is the same as the number of in a single-member voters district.
However, practice, these theoretical divisions within such dis- every Representative tricts do not work because or Senator from represents a supported every such district and resident in the district, just up those making voters the fraction of the district comprising constituency. the theoretical Members do not “divide the population represents” of the district that he to determine [or she] constituency. “true” consequence, their As a those such living in dis- may upon responsive tricts contingent call a Senators and Representatives press interests, single-mem- their while those in a rely only may upon Representative. ber district Thus, one Senator although people have mandated in their that all Constitution enjoy equal substantially voting power, North Carolinians Northampton Cty. One, Drainage Dist. No. 326 N.C. at S.E.2d at the same language Constitution contains which appears deny in single-member voters districts their to sub- right stantially equal legislative representation. Accordingly, and consist- analysis with opinion, ent found elsewhere in this hold we that language quoted purporting above to allow multi-member dis- only that, tricts is effective within a limited context. We conclude while instructive as to how used multi-member districts com- patibly “one-person, principles, one-vote” Article Sections 3(1) 5(1) and are not affirmative constitutional mandates and do not both single-member authorize use of and districts in a multi-member manner right violative the fundamental of each North Carolinian to substantially equal power. voting proposition single-member
The
that use of both
multi-mem
plan
equal protec
ber districts within the same
violates
principles
McCulloch,
tion
is not novel. In Kruidenier v.
258 Iowa
denied,
142 N.W.2d
cert.
(1966), the Iowa Court concluded single- ing schemes, in which there were multi-member districts unconstitutionally impaired plan, member in the same house districts single-member The Court rights of residents within districts. apportionment following example from the scheme at observed the County Warren can vote for 1/61 issue there: “The resident of County The of Polk can vote senate and 1/124 of house. resident Id. at 142 N.W.2d for 1/12 of the senate and 1/11 of house.” at 370. Court concluded that “mere statement of ex- inequality of uni- ample unfairness, the basic and lack disclose[d] formity apportionment” in such a scheme of inherent and stated:
Equal power goal. legis- voting Proposed all is the citizens majority requires lation a vote of members of house each reality political legislators a law. It is a are much become support more an inclined listen to constituent than out- problem. equally It is basic much leg- sider with the same islative work is done committees and there is a distinct ad- representative vantage having sitting own as a one’s member considering legislation of committee in which one has an inter- Particularly personal legislation est. ... interest the resident of unequal has an *23 advantage multi-member unfair [the district] any single-member over the resident of. . . other district. He has opportunity espouse greater legislators a much to find to his greater repre- much chance or cause and a that one more of his will be which legislation sentatives on the committee to his assigned. voting power greater. His is much 1147-48, (emphasis at added). Id. N.W.2dat 370-71 any Supreme appor- legislative The Iowa Court concluded that containing single-member tionment scheme both multi-member and unlawfully impaired legislative right of a within districts resident single-member both and district under the Iowa Constitution 1148,1156, Id. at Constitution of the United States. 142N.W.2d qualified by that, Supreme holding stating Iowa Court its plan apportionment by the extent rational could achieved not be districts, possibility all using single-member existed that use of constitutionally permissible. some multi-member districts could be Id. view, single-member
In our use both multi-member dis- redistricting plan Equal Protection tricts within the same violates STEPHENSON v. BARTLETT Clause of the State Constitution6 unless it is established that inclu- sion of multi-member districts advances a compelling state interest. Therefore, the trial court is directed on remand oppor- to afford the tunity establish, evidentiary at an hearing, that the use of such dis- tricts a compelling advances state interest within the context of a specific, proposed plan.7 remedial respect
With to redistricting plans, undoubtedly, federal law impacts application the functional of the WCP not, but does sug- by gested defendants, totally accept void it. To logic defendants’ necessarily imply would any Congress time enacted a law which superficially even upon touched an primary area of responsibil- state ity, provisions all related state within the challenged area of state jurisprudence immediately entirely would be nullified. Such a presumption reflects a misunderstanding preemption of federal analysis.
As noted
Supreme
the United States
Court in Shaw v. Reno
previous
the USDOJin
correspondence
its
and administrative
regulations, operation of
preclude
federal law does not
states from
recognizing
political
traditional
subdivisions when drawing
leg-
their
Shaw,
islative districts.
509 U.S. at
L.
528;
125 Ed. 2d at
see also
Reg. 5413; Growe,
66 Fed.
possible, therefore, comply with both the VRA and the WCP as reconciled with other of state law. See Lime, Florida U.S. at 10 L. Ed. 2d interpretation at 256-57.Our of the WCPdoes *24 beyond dispute authority 6. It is that this Court the to construe State “ha[s] [the differently by Supreme from the construction Constitution] the United States Court of Constitution, long thereby the Federal rights as our citizens are accorded no lesser they guaranteed parallel provision.” Carter, than are State v. the federal 322 N.C. 370 S.E.2d hearing requested remand, 7. In the event such a is the trial court is authorized necessary primary to take all legisla- remedial actions to ensure that the elections for timely expeditious tive are in a conducted offices manner and consistent with the general election scheduled for 5 November 2002. COURT IN THE SUPREME BAETLETT VRA, objectives nor it frustrate the create a conflict with the does not purposes Accordingly, id. the of federal law. See contention wholly preemption as a matter of the WCP unenforceable federal is analysis untenable. complies the our to that WCP obligation
In addition to
ensure
require-
legal
with
law,
with
it must also be reconciled
other
federal
respect,
application
In this
an
of
Constitution.
ments
the State
vote,
right
equal right
a
abrogates
WCP that
to
fundamental
Constitution,
uphold
must
avoided
order to
under
substantially equal
principles
substantially equal voting power and
of
representation arising from that same Constitution.
legislative
is to
question,
Without
the intent
the WCP
limit
Assembly’s ability
legislative
according
to
districts
draw
without
county
respect.
imposition
Prior
a reasonable measure
to the
lines
“one-person,
requirements, implementation
VRA
one-vote” and
simple
despite
provision
straightforward. However,
was
“one-person,
principles,
are
advent of the VRAand
one-vote”
we
not
permitted
being
WCP
as now
in some fash-
to construe the
mandate
application
only
unmanageable,
ion
or to limit its
a handful of
Any attempt
abrogation
counties.
to do so would be an
of the Court’s
duty
interpretation
reasonable, workable,
and effective
follow
people’s express
legislative
that maintains the
wishes to contain
dis-
county
possible.
within
lines
As we
trict boundaries
whenever
stated
Preston, “Progress
govern-
in State
Martin
demands that
ex rel
respond
changing
ment
be further refined
order to best
should
provide
our
conditions. Several
Constitution
elas-
ticity
responsive operation
government.”
which ensures the
Preston,
at
To we that in obvious: ability large districts, substantially absence of multi-member county preserve complying VRA, boundaries while with the external one-vote,” “one-person, equal protection requirements, and State ability impossible single-member would be without the to draw dis- groups result, aggregated tricts within counties or of counties. As interpreted law the WCP is consistent with federal and reconciled equal protection requirements the State under Constitution requiring single-member the formation of districts North Carolina redistricting plans. single-member The boundaries of such districts, however, except cross lines as outlined below.
IN SUPREME COURT THE
STEPHENSON BARTLETT [355 trial [2] Consistent court, during with the the remedial legal analysis stage set forth of the instant above, proceeding, we direct the Carolina redistricting plans ensure that for the North Senate and Representatives comply following Carolina with North House of requirements. remand, compliance law, legislative
On to ensure full with federal required by prior shall districts the VRA be formed to creation of non- precleared legislative redistricting VRAdistricts. USDOJ the 2001 plans, therein, February the VRA on 11 districts contained that, opinion signified This administrative determination USDOJ, plans had legislative redistricting retrogressive no upon minority In VRA effect voters. the formation of districts within plans remand, redistricting the revised we likewise direct the trial ensure that VRA court to districts are formed consistent with federal upon minority having retrogressive law and a manner no effect vot- practicable, ers. To maximum extent such VRAdistricts shall also comply legal requirements WCP, with the as herein established throughout for all and districts the State.
population [3] In forming for a new legislative legislative districts, any district shall be at or deviation within from plus the ideal or minus percent purposes compliance “one-person, federal five requirements. one-vote” population sup- having
In counties a 2000 census sufficient to port legislative formation non-VRA district falling of one at or plus percent population or the ideal within minus five deviation from “one-person, requirements, consistent with one-vote” the WCP physical requires any that the boundaries such non-VRA legis- geographic lative district not cross traverse the exterior line or county. any such legislative
When two or more non-VRA districts be created plus a single county, within which districts fall at or within or minus percent population five deviation from ideal consistent with “one- person, requirements, single-member one-vote” non-VRA districts county. shall be formed within Such non-VRAdistricts shall said compact geographic boundary and shall not traverse the exterior county. any such population pool sup- which having counties a non-VRA cannot
port plus per- least one district or minus five at within population or, alternatively, for a legislative cent of ideal district IN COURT THE SUPREME 354,(2002)] *26 which, if into dis- population pool a non-VRA divided having counties per- comply plus at or or minus five tricts, not with the within would standard, requirements the WCP “one-person, the of cent one-vote” whole, by combining grouping met the minimum number are or plus necessary comply with the at or within or contiguous to counties any “one-person, standard. Within such percent minus five one-vote” multi-county compact formed, contiguous grouping, districts shall be percent plus standard, five with the at or within or minus consistent boundary line lines not cross or traverse the “exterior” whose do multi-county provided, however, resulting inte- grouping; the the any such crossed or groupings rior lines created be multi-county group- creation districts said traversed the within necessary only comply with at or within ing but to the extent to the percent “one-person, plus or minus five one-vote” standard. The underlying intent the WCP must be enforced to the maximum extent only necessary possible; thus, smallest of counties to number comply plus percent “one-person, with the at or within minus five combined, shall and one-vote” standard be communities interest compact contiguous should considered in the formation of and be electoral districts. districts, at used legislative
Because multi-member least when conjunction single-member legislative districts in the same subject scrutiny Equal redistricting plan, are to strict under Constitution, Protection Clause of the State multi-member districts in the it shall not be used formation of districts unless is necessary are a compelling established that such districts to advance interest. governmental any plans, including any
Finally, redistricting we direct that new proposed case, depart compliance on remand shall from strict requirements only legal with the set forth to extent neces- herein sary comply with federal law. independently require-
This has that the above Court verified Constitution, Equal including ments of the State the WCP and the applied Clause, can in a manner Protection in fact reconciled therewith, requirements, including consistent as well as with federal “one-person, principles. the VRA This was one-vote” verification through program achieved use of a software which is used Assembly process which during General Assembly generally General makes available members public.
STEPHENSON v. BARTLETT Assembly optimally The General should be afforded the first opportunity redistricting plans to enact new for the North Carolina Representatives Senate and North Carolina House of based on the requirements 2000 census constitutional which we have upheld opinion. represented, however, in this Defendants have Assembly is plans there insufficient time for the General to enact new cycle. for use in the Accordingly, 2002 election we direct the trial hearing, expedited question court to an basis, conduct on the feasibility allowing Assembly opportunity the first develop redistricting plans. Assembly new The General should be opportunity accorded the first doing draw the new if will so disrupt timing general of the 2002 election. In the event defendants are unable to demonstrate that the General *27 develop redistricting plans able new in accordance with the by court, timetable established the trial the trial court is authorized proposed plans,8 and directed to seek adopt remedial review and temporary or interim remedial for the North Carolina Senate Representatives, and North Carolina House of preclearance and seek thereof, cycle.9 for use in the 2002 election upon thorough
Based our review of the extensive materials filed case, in this in people’s Court this we believe that the insertion of a whole-county requirement within their Constitution was not an his- Rather, provision torical accident. by we believe that this was inserted people objective upon of North Carolina as an limitation authority legislators of incumbent reapportion to redistrict and in a importance manner inconsistent with the that North Carolinians tra- ditionally placed upon have respective county their units terms of relationship their government. will, Enforcement of the WCP likelihood, improved morale, all foster turnout, voter voter public respect government, for State specifically, the General Assembly institution; anas will assist conducting election officials in taxpayers State; elections at cost lower to the of this will instill a community regional cooperation renewed sense within the respective countywide or regionally legislative delegations formed instance, countywide mandated the WCP.For again there will be delegations and, contiguous areas, multi-county in rural delegations court-appointed expert 8. The trial court should consider whether would compliance require- ensuring assistance in law with federal and state constitutional 8C-1, See § ments. N.C.G.S. Rule 706 event, opportunity In9. this shall be accorded the to enact plans, requirements new with consistent the constitutional set forth herein, during its 2003 session. THE SUPREME COURT IN v. BARTLETT delega- Assembly, which, working in the General effectively State, work can more regions other tions from citi- mutual concern to manner matters of positive in a together State. zens our are affirmed as trial court below
Accordingly, the orders court stay lifted, Court is and the trial issued this modified,10the necessary implement further orders as is to enter such authorized opinion. holdings our AS MODIFIED.
AFFIRMED Appellate Rules of 32 of the North Carolina Pursuant to Rule opinion expedited and shall issue at Procedure, of this the mandate May 12:00o’clock noon on *28 assignments of error all other issues and 10. We have reviewed and considered they
presented by parties do need to be addressed in order and conclude that proper resolution of this case. to effect a full and STEPHENSON v. BAETLETT *29 SUPREME COURT IN THE v. dissenting part. concurring part in and in ORR Justice majority with ultimate conclusion the agree While I —that correctly redistricting at issue uncon- ruled the the trial court portion reasons. As to the remedial do for different stitutional —I so majority’s of a majority decision, disagree utilization I with of the “multi-member” Equal to conclude that argument Protection imposition majority’s of a and with the districts are unconstitutional percent new districts. plus-or-minus-five drawing standard for part compelled separately and concur in Therefore, am to write I part majority’s opinion. in to the and dissent
I. by trial the defendants is “the The second issue advanced impermissibly ineffective constitutional amendments court enforced plans.” The basis for it struck the enacted when down provisions at issue are argument is that the state constitutional Voting Rights (VRA). Act unenforceable under section 5 of the argue the constitutional amendments were Defendants that “because they no relied precleared, have force and effect cannot be never portion upon districts.” As to the redrawing in the State’s contentions, majority opinion addressing defendants’ under of the Objection Redistricting heading of “Effect of 1981 USDOJ Cavanagh Brock,” District in Plan and Decision of Federal Court reasoning I Supp. (E.D.N.C., 1983), 577 F. concur both and result. by properly passed at issue were
The constitutional amendments adopted the voters this State. See Act General May 31, 1967, 704; L. & ch. 1967 N.C. Sess. Laws John Sanders Lomax, Jr., F. to the Constitution North John Amendments Gov’t, Chapel 1776-1996, (Inst. Univ. of at Carolina: 1997). were further carried forward Hill, These amendments updating of the North Carolina Constitution submitted revision people duly Thus, face, to the 1970 and enacted. their these provisions binding of our State amendments are valid any problems regard result, As a constitutional with Constitution. application pro only if the to these amendments could arise visions conflicted the United States Constitution or federal redistricting plan’s view that legislation amid a submission. The “whole-county only provisions” (WCP) challenged can be so-called plan specific redistricting the context of further buttressed very language constitutional at issue. “No *30 IN THE SUPREME COURT
STEPHENSON v. BARTLETT (2002)] N.C.
[355 shall be divided the a [legislative] district.” N.C. of formation Const, 3(3), (emphasis art 5(3) collectively added (hereinafter §§ purposes referred as the “WCP”for of reference to either or both provision, the Senate 3(3), Representative section and the House of provision, 5(3)). WCP,therefore, by terms, section its own means absolutely nothing except Thus, when it utilized form is a district. majority correctly as the concludes, argument sum, defendants’ —in provision that the inapplicable has somehow been rendered —must provision fail mandatory because the is binding plan and unless the utilizing it is shown to inbe violation of federal law.
II. Having determined that the WCP is a binding valid and state con- provision, stitutional the next fundamental is issue whether the redis- tricting plans by submitted the State violate majority, the WCP.The having opinion earlier in its noted the inordinate number divided counties in plans, the submitted holds one sentence that such plans violate the WCP and are majority therefore void. The then proceeds immediately portion opinion. the remedial of the While ultimately reaching a conclusion, necessary similar I find it and appropriate county to address defendants’ argument core lines must be mandatory divided because requirements federal person, Voting “one one vote” and the Rights Act’s restrictions by defendants’ contention that the trial court erred in its order establishing criteria which under new are to be drawn. part, large questions necessity argument defendants’
large multi-member single-county districts —either or multi- failings any allowing inherent criteria such dis- —and counter-argument proposed plan tricts. Plaintiffs’ remedial relies part large districts, many use of multi-member of which incorporate multiple counties, ostensibly comply in order to with the WCP. necessary parties
It to examine the contentions in the application interpretation context of the WCP, as well as in interrelationship the context of the WCP’s with other constitutional provisions i.e., Assembly’s govern those that consti- — duty tutional draw legislative districts. Our examination of the guided following interpre- constitutional at issue is principles Joseph tation (later articulated then Justice Branch Justice) twenty-five years ago: Chief some THE SUPREME COURT IN v. expresses the will of Constitution
The North Carolina therefore, supreme law of land. is, people of this *31 principle of construction Thus, a constitutional it is fundamental people adopting the intent of given the the that effect must thereto, that constitutional Constitution, an amendment and or objec- in the provisions be construed consonance should accomplished, sought giving due con- purposes and to be tives It is well established existing. conditions then sideration the Constitution, what that, construing in either the federal expressly what is part a as implied is much of the instrument as harmoniously to be Further, amendments are construed stated. possible. as provisions, insofar with antecedent (1978) Martin, (citations 245 S.E.2d 771 re omitted). us, interpretation before guideposts
With these of constitutional applicable to I now turn to review constitutional subsections, expressed II, Section and its case, as in Article II, apportionment, and and Article controlling Senate districts apportionment subsections, controlling and 5 and its districts Section adopted provisions, large in Representatives. These of the House and part by then-existing Constitution the 1968 amendments to our part Constitution, and the readopted govern as the 1971 control by reapportionment district-drawing process of and the General Assembly. grant at the that our State Constitution is
I note outset power that power power, serves instead as a limitation of all but expressly by people in our is not limited the Constitution which people, people through and an act of the their remains with representatives that by prohibited that legislature in the is valid unless McIntyre Clarkson, 119S.E.2d constitution. rep- Thus, power people, through their elected Assembly, specific is constrained resentatives imposed by duly adopted provisions. In this limitations constitutional regard, people State, our the 1968 amendments adopting affirmatively readopting placed upon and them have apportionment limitations in the and redis- General certain upon I inter- process. these limitations that am called tricting It is pret in the case. apply context of the issues raised instant applicable expressed limitation, as in the North Carolina
The first Constitution, provides part 3(1) 5(1), Article Sections
STEPHENSON v. [legislator]
represent,
nearly
shall
as
be,
equal
“[e]ach
an
inhabitants,”
number of
and stands as our State’s embodiment of the
“one-person, one
imposed by
vote” edict
Supreme
United States
in, among
Court
cases, Gray
other
Sanders,
368, 379-81,
372 U.S.
L.
Ed. 2d
(1963)
830-31
(holding that
concept of ‘we the
“[t]he
people’ under the Constitution
preferred
visualizes no
class of voters
equality
but
among those who meet the
qualifications,”
basic
every
idea that
equal
every
voter is
State,
“[t]he
other voter in his
when he casts his ballot in favor of one of several competing candi-
dates,
many
underlies
decisions,”
of our
ultimately
concluding
conception
political
equality
“[t]he
from the Declaration of
Independence,
to Lincoln’s Gettysburg Address, to
Fifteenth,
Seventeenth, and Nineteenth
only
Amendments can mean
one
thing
person,
vote”). Thus,
one
3(1)
Sections
and 5(1), as con-
—one
stitutional mandates, “express]] the
people
will of the
of this State
*32
[are],
therefore,
supreme
the
law of the
Martin,
land.” In re
N.C. at
Next, we must consider the portion aforementioned provi- of the sion’s light limitation in remainder, of its provides which that “the number of inhabitants that each [legislator] represents deter- [is] mined for purpose by dividing population the of the district that represents by he [legislators] apportioned number of to that dis- Const, II, trict.” N.C. art. 3(1), 5(1). §§ The language of this clause is particularly clear, plainly nor does it evidence either its intended effect or the intent people adopt who voted However, to it. a straightforward reading of the clause leads me to conclude that the Assembly General required districts, apportion to draw legis- districts, lators to those in such numbers as it shall determine. Historically, practical practice effect and Assembly has been to create at least some multi-member districts. In other words, a large urban like Wakewould have leg- more than one apportioned islator it, to and in a similar vein, smaller counties would joined together to form a district also with more than legisla- one apportioned tor However, to it. provide what this clause does not for is a device or method multiple that allows apportioned members to such a district to be at-large elected in Actually, fashion. the clause makes no statement at all about the election; fact, any manner of imposition at-large of an voting directly methodology would conflict primary purpose with the provision, embody which is to “one-person, principle by one-vote” requiring legislator rep- that each equal resent an number of inhabitants. COURT IN THE SUPREME
STEPHENSON v. BARTLETT practice at-large elec- past has been allow acknowledge I any apportioned multiple members. that has been tions district premise largely on the Support at-large for an scheme has rested such repre- inhabitants is somehow that, example, 134,000 for a district 67,000 by represents whom Répresentatives, two each sented premise However, proves illusory, as shown inhabitants. is in Representative elected from such a district following. First, each second, actuality by 134,000inhabitants; Representative each elected inhabitants; third, represents 134,000 all of each each and those Representatives, has not one. inhabitant of a district two elected such deviates, result, at-large significantly As a election scheme principle providing greater so, “one-person, from the one-vote” representation practical for in multi-member districts inhabitants at-large single-member with than to those in districts. elections analysis, I Article foregoing As a result of the conclude that 3(1) prohibit at-large 5(1) Sections of our Constitution elections districts. while the General within multi-member And comply (in part WCP,as dis- create multi-member districts with the below, part comply “one-person, one-vote” cussed and/or apportioned requirements requirements), VRA those members or specified off such districts must be elected area that sets from upon proportional population number of inhabitants based the ideal popula- (l/120th for House and Senate districts of the State’s overall purposes tion, approximately 67,000 persons or for instant case, districts, population, for House and l/50th of the state’s overall persons approximately 161,000 purposes case, instant districts). for Senate *33 placed upon I
Since conclude that first limitation the General Assembly by namely, [legislator] that the 1968 “[e]ach amendments— may inhabitants,” represent, nearly be, equal shall as an number of Const, II, 3(1), 5(1)' requires Representatives art. that §§ — single-member districts, of at- Senators be elected from the fiction voting representation be faith- large and divided cannot survive and important vote.” person, ful to the restrictions of “one one It is just “one-person, longer note that this one-vote” limitation is no a imposed by interpretation mandate of the United constitutional Supreme Instead, duly adopted it States Court on our State. is a limi- legislative expressly redistricting, tation on memorialized our State Constitution, people will of the and as such reflects “the and, is, supreme Martin, land.” therefore, the law of the In re 295 N.C. at 245 S.E.2d at v. portion majority opinion declares that in sin-
The remedial districts, single-member dis- gle counties with two or more non-VRA majority county; further, within the asserts tricts must be formed multi-county county “contiguous groupings, interior lines that may groupings within be crossed or traversed” in the creation of such However, majority required single-member districts. what the why fails to articulate is those circumstances do not violate the WCP requirement county a to not divide a formation implied I the bare assertion district. While concur with the result of WCP, compelled I feel to offer that such division does violate a legal rationale for such conclusion. provides The WCP shall be divided in the “[n]o [legislative] provision, requiring formation of a district.” The contempo- drawing districts, not be divided in was enacted counties raneously “one-person, with the one-vote” in Article facially inconsistent, prac- 3(1) 5(1). Sections While not implementation complicated by tical of the two subsections is their Simple seemingly contrasting geography suggests effects. that strict may prove “one-person, in light adherence to the WCP untenable requirements, VRA which force divisions between one-vote” and county. Nevertheless, residents of the same this Court must reconcile provisions, guided the mandate of the and harmonize the two people, imposed upon specific limita- who predetermined legislator that: be elected from a num- (1) tions one upon “one-person, designated constituents based one vote” ber of principles; and not be divided in the formation of (2) counties legislative districts. meaning
“In order to ascertain the
amendment to
[an]
pari
Constitution,
appropriate
it
to consider it in
materia with the
supple
other sections of our Constitution which it was intended
Peoples,
(1978),
250 S.E.2d
ment.” In re
possible!,]
denied,
L. Ed. 2d
“Where
cert.
U.S.
practical interpre
given
should be
amendments
the Constitution
carry
plainly
purpose
manifested
of those
tation which will
out the
honoring
Without
elections in multi-member
purely
county
comply
follow external
boundaries in order to
requirements
VRA
“one-person,
and with
one-vote” limitations would
impossible
ability
single-member
without the
to draw
districts
any
within
(1)
composed
the confines of:
multi-member district
of a
county, and/or;
any
single
(2)
composed
multi-member district
multiple
Therefore,
counties.
in order to
will
people,
honor the
of the
I
single-member
county
would conclude that
districts that traverse
multi-county
lines within the confines
aof
district do not violate the
Similarly,
WCP of our State Constitution.
I would also conclude that
single-member
single, highly populated county
districts that dissect a
do not do
McCulloch,
so either. See Kruidenier v.
258 Iowa
(holding
N.W.2d355
that there is no “division”
long
as
as
entirely
specific
a district is
within a
county),
denied,
cert.
385 U.S.
“Aconstitution should not receive a technical construction as if ordinary it were an interpreted instrument or statute. It should be carry principles so as to out the general government, opinion quotes not defeat them.” The following: “When we by implication construe a constitution rigor of such and inflexi- bility legislative regulations, only as to defeat the we not violate accepted principles interpretation, destroy rights but we guard.” which the Constitution intended *35 THE 395 IN SUPREME COURT (2002)] N.C. 354
[355 813, City Winston-Salem, 203, 206, 204 N.C. 167 S.E. Stedman 169, Elections, Bd. (1933) (quoting 815 Jenkins v. State . (1920)) 104 S.E. question us, As to the ultimate before the record is uncontro- limiting the verted that the of our State Constitution Assembly’s power by redistricting General in have been violated redistricting plans Thus, plans defendants’ were as submitted. such properly by ruled to be invalid and unconstitutional the trial court.
HI. majority’s portion As to other sections of the remedial opinion, compelled grounds I am to dissent on the stated below. remedy may “merely carrying
While a the means of into effect principle policy,” Dobbs, a substantive Dan B. Handbook on the Damages Equity—Restitution 1.2, (1973), Law Remedies: at 3 § — duty specifically legislative redistricting the context of is a —which Assembly assigned to the General under our State Constitution— narrowly requires reviewing impose court to remedial actions as possible. Thus, having found the at uncon- issue my appears beyond invalid, majority, view, go stitutional and necessary remedy that which is the constitutional violations and compliance. attempt command This Court should not to microman- I age legislative drawing Regrettably, function of new districts. necessary majority that therefore conclude has exceeded scope remedy portion function, of its and I must dissent from that opinion. its
First,
majority imposes
a new limitation on the General
by
“any
creating legislative
mandating
districts
devi-
population
at or
ation from the ideal
for a
district shall be
plus
percent
purposes
compliance with
within
or minus five
for
requirements.”
‘one-person,
(Emphasis added.)
federal
one-vote’
presumptively
plan
in a
has been declared
con-
While
deviation
Supreme Court, see, e.g.,
stitutional
the United States
Brown v.
L,
Thomson,
842-43,
(1983),
77 Ed. 2d
221-22
it has
U.S.
imposed
example,
as an absolute limit. For
as noted
never been
plaintiffs
brief,
Supreme Court,
Howell,
in their
Mahan v.
315, 328,
may go to
(1973),
U.S.
35 L. Ed. 2d
held that a state
higher range
creating legislative
districts if its reason
deviation
See, e.g.,
upon
rational neutral criteria.
doing
so is based
some
Brown,
842-43,
STEPHENSON v. BARTLETT “one-person, complying principles, one-vote” the United Supreme States Court has stated that the burden is on the State to prove population among deviations congressional its various dis- constitutionally acceptable. See, e.g., Daggett, are tricts Karcher v. 462 U.S. 77 L. Ed. 2d 147 (1983). And while the State rely general assertions, required justify showing “[t]he *36 population flexible, depending deviations on the size of the devia- tions, importance interests, consistency of the State’s with plan availability interests, which the as a whole reflects those and the substantially might yet of alternatives that vindicate those interests approximate population equality closely.” more Id. at 77 L. Ed. 2d Supreme at 147. The United States Court has also acknowledged congressional that since redistricting will be in effect for a min- years (as imum of ten are legislative plans), North Carolina’s “[situa- may population tions arise where substantial shifts over such a period anticipated.” Kirkpatrick Preisler, can be 394 U.S. “[wjhere L. Ed. 2d (1969). pre- And these shifts can be high degree accuracy, dicted with a States that are may properly them,” id., consider long “[findings so as to [such] population thoroughly applied trends through- documented and [are] systematic, hoc, manner,” out the State in a an ad id.; not see also Weiser, Therefore, White v. 412 U.S. 37 L. Ed. 2d 335 in applying principles redistricting plans these for the North Carolina Representatives, Senate and House of districts could be drawn with higher populations required “one-person, lower than is under strict guidelines exemplified by plus-or-minus-five- one-vote” —as percent by majority threshold now mandated criteria demon- —if projected population predicted strates that the shifts can be with a accuracy. high degree of newspaper County
A recent among article stated that Wake was county population in growth gained 27,796 leaders rates. The just months, residents in fifteen grew 109,000peo while the State ple. Glascock, Rapid Ned Growth, Wake Leads The News and Apr. 29, 2002, Observer (Raleigh), at Bl. The article went on to state that several counties growth rate, exceeded Wake’s with Union County experiencing greatest any county growth (7.3%) rate April July Thus, between 1 2000 and 1 2001. Id. should the General Assembly patterns choose to growth consider and to draw districts majority reflecting them, opinion’s plus-or-minus percent five preclude my view, mandate well serve to it doing from so. In prospect even the necessary of such a limitation is neither nor judicial appropriate imposition Assembly, on the General which THE COURT
IN SUPREME v. BARTLETT 354(2002)] drawing districts com- practice is faced with the difficult task of requirements. pliance range existing legal with a opinion, majority, portion of its also Second, the the remedial population a 2000 census sufficient having mandates that in “counties falling support legislative non-VRA district the formation of one population plus percent from the ideal within or minus five deviation requirements, the WCP ‘one-person, one-vote’ consistent any requires physical boundaries of such non-VRA any line of such geographic district cross or traverse the exterior county.” practical require is to effect of this edict single-member district under the single-county, to create a might desirable, I conclude described circumstances. While that Assembly do so likewise is neither mandating that the General necessary nor-appropriate in the context of this case. part opinion, its
Third, again as of the remedial section of majority equal protection upon I, Article argument uses a state based 19, to, effect, portions 3(1) of Article Sections Section hold *37 precisely saying of the State Constitution. While not 5(1) violation districts is so, majority holds that future use of multi-member concluding that the effectively struck down as unconstitutional. within the and multi-member districts single-member “use of both plan Equal Protection Clause of the same violates the majority plows new and (emphasis added), the State Constitution” appears one clause of First, holding such a to hold unsettling ground. another, long- of a overruling as violation the State Constitution State, interpretation. See Leandro v. standing tenet of constitutional (1997) (“It is axiomatic that the 336, 352, N.C. 488 S.E.2d 258 in violation of the requirements of a constitution cannot be terms or Moreover, itself.”). cannot violate same constitution.—-a constitution multi-member districts by single-member of both stating that use majority implies plan using all constitutional, at least that a is not constitutional, proposi- prove a districts could to be multi-member majority’s would question that the own conclusion tion that I and one appear to contradict. Equal Protection
Fourth, the use of our State Constitution’s down multi-member districts —when arguably Clause to strike contrary under the Supreme has held to the United States Court one of those rare occasions Constitution —-marks United States our State protection been afforded under greater where has acceptable to counterpart. While than under its federal Constitution IN THE SUPREME COURT STEPHENSON v. so, see, e.g., do Carter, State v. N.C. 370 S.E.2d question (1988), I appropriate whether this is the circumstance in which to do so.
Fifth, majority places by holding caveat in its stating that may permitted they multi-member districts if are shown to compelling By advance “a state remanding interest.” then the case to the trial court in order to allow compelling evidence on whether a state any interest exists for district, majority multi-member potentially postpones a matter, final resolution of this which protracted well result in period litigation.
Sixth, question I whether utilizing Equal a State Constitution argument Protection Clause in the remedial appropriate section is party all. No trial, anyone raised such an issue at nor did argue such an issue to Likewise, questions this Court. propounded by no were this Court at oral argument contemplating vein, such an issue. In this I agree still with Burley former Chief Justice Mitchell, with whom I joined separate in a concurrence in Nelson v. Freeland: “I think it opinion inadvisable to render an magnitude of that entered majority in the when, here, case . . . this Court has not had the benefit of arguments briefs and on the issued major- decided ity.” 507 S.E.2d 893 (1998).
Seventh, finally, my view, only requirements remedial compelled by that are this case are as follows: (I)The General comply must first with the following mandatory criteria in drawing districts:
(1) United States requirements constitutional person, for “one vote,” population one variations within the being districts by applicable controlled federal law; case *38 (2) Voting Rights requirements; Act
(3) requirements State constitutional possible to the extent and mandatory inconsistent with specified criteria (1) in (2), and above; requirements such state include:
(a) legislators shall be elected single-member from districts; (b) counties shall not be divided the districts, formation of except boundaries of areas within counties from which individ- ual members are elected county internally divide a single or v. multi-county the minimal within a district to cross a line necessary. extent Assembly may nonmandatory also utilize crite-
(II) The General acceptable i.e., acknowledged by federal courts as commu- ria — nity partisan interest, protection, considerations— incumbent mandatory long so as such use does not result in a violation of the criteria.
IV. justiciability presented, including the issue As to all other issues exception by defendants, I further take with footnote 10 raised would says majority opinion, which that such other issues “do not proper addressed in order to effect a full and resolution of need to be issues, I However, having this case.” reviewed those would conclude they have no merit. Thus, above, part with, I for the reasons set forth concur part from, majority opinion. dissent dissenting.
Justice PARKER whether the trial court erred The sole issue before this Court is plans duly ruling that the enacted Assembly precleared by States 13 November 2001 and the United Department February violate Article Sections of Justice on 11 (“State of the North Carolina Constitution 3(3) 5(3) err; agree I Defendants contend the trial court did Constitution”).
vote to reverse. amended, prohibits 1965,as Voting Rights
Section 5 of the
Act of
any changes
jurisdictions
implementing
enforcing
from
or
“covered”
respect
voting” unless
“standard, practice,
procedure with
to a
“precleared.” 42 U.S.C.
1973c
provisions
§
have first been
those
Forty
hundred counties are “covered”
(1994).
of North Carolina’s one
preclearance requirements.
purposes of section 5
the State House
In
Carolina’s
districts for
North
governing
constitutional
then
and Senate and the state
held unconstitutional
drawing
of State House districts were
one-person,
requirements. Drum v.
federal
one-vote
based on
per curiam,
U.S.
Supp.
1965),
Seawell,
(M.D.N.C.
249 F.
aff'd
response the 1967 General
The initially 1968constitutional amendments were not submitted Department preclearance to the of Justice for under section 5 of the Act, they Voting Rights precleared by nor were litigation virtue of the United States District Court for the District of Columbia. However, promptly to, pre- the 1971 Constitution was submitted by, Department cleared the United States of Justice after its ratifica- tion the voters. prohibitions dividing counties were followed in the 1971 redrawing
and 1981 of state districts. Late in 1981 an against capacity action was filed state officials their official chal- separate substantively 11. These amendments are embodied in two identical Const, provisions 3(3), 5(3). However, of our State §§ Constitution. See N.C. art. clarity, singular (“the for the sake of this dissent refers to these two in the provision”). THE IN SUPREME COURT *40 v. BARTLETT
STEPHENSON (2002)] N.C. 354 [355 legislative lenging the on districts the basis that the State had failed preclearance to obtain of precluding the 1968 amendments division in drawing of counties the of legislative Gingles districts. Edmisten, Supp. 345, (E.D.N.C. 1984) 590 F. (three-judge court), 350 part part in grounds, reversed in on other 478 92 U.S. aff’d L. litigation pending, Ed. 2d 25 With this the State submitted seeking preclearance the 1968 amendments their from the Department Assembly of Justice. General also amended the State Representatives plan preclearance House of request while the was pending did not divide in the counties creation of the House dis In submitting amendments, presented tricts. the 1968 the State the argument that the amendments did not change constitute a from the practice long-standing drawing legislative districts without divid ing counties. Department
Notwithstanding argument the of Justice objected to language against dividing counties to give and refused preclearance plans to the 1968 amendments or to redistricting amendments, thereby enacted in forcing reliance those Assembly objection General redraw the legislative to districts. The highlighted Department’s application concern that of the 1968 large, districts, amendments would result in necessarily multi-member which minority submerge larger voters into white dis- voter Department objection, tricts. Pursuant to the of Justice’s the General Assembly legislative plans precleared. However, drew new that were plans subject were litigation these still under 2 of section Voting Rights Gingles, Supp. Act. F. at 351. Assembly .1982,
Once the General enacted new in offi- subject capacity cials their a official were the civil action Forsyth County brought challenge residents to the division of Forsyth County newly legislative Specifically, in the drawn districts. plaintiffs Assembly claimed the General could not divide County forty Forsyth among because the was not “cov- purposes preclearance. Hence, ered” counties for of section 5 provision applied remaining constitutional still to the noncovered rejected counties. This claim was a three-judge United States Cavanagh Supp. 176, Brock, (E.D.N.C. District Court 577 F. 1983). Cavanagh preclearance The court held that the denial of to the 1968 constitutional meant that amendments the amendments they prohibited were not effective at all insofar as division drawing legislative counties in the districts. Id. at 181-82. COURT IN THE SUPREME v. the United redistricting plans were used until
The 1982
required
Gingles
Supreme Court
States
separate, majority-minority dis-
modify
out
in order
carve
them
comply with
the State to
section
in certain counties of
tricts
jurisdic-
irrespective
applies
which
of whether
Voting Rights Act,
compels
states
create
is
under section 5. Section
tion
covered
minority
sufficiently
population
is
majority-minority
when
districts
compact
majority
single-member
in a
district
votes
to form a
its
cohesively,
unable
elect candidates of
choice
generally
but
*41
conjunction
majority,
voting
bloc
often in
because of the racial
discriminatory practices that
with other factors such as historical
political
participate
minority’s ability to
in the
have affected the
Gingles,
50-51,
Thus, the used in 1980s Assembly plans did enacted and used the 1990s.The General as only proceeded court decision that had ever on the basis that question be divided was considered the of whether counties could Assembly binding and that the 1968 constitution- were no prohibiting al the division of counties of amendments implement- litigation Against background force effect. Act, ing Voting the 2001 General enacted the Rights subject that are the of this Senate and House civil action. following provisions
The of our State Constitution are determi- appeal. native of this provides II, as follows:
Article Section The The Senators shall be elected from districts. General Assembly, convening first after the return regular session by every population decennial census of taken order apportionment districts and the Congress, shall revise the senate subject among districts, following to the of Senators those requirements: nearly may represent, be, an Each Senator as
(1) shall equal inhabitants, that number of the number of inhabitants each represents Senator being purpose dividing determined for this population represents by of the district that he the number of apportioned Senators district;
(2) Each senate contigu- district shall at all times consist of territory; ous
(3) No shall be divided in the formation of a senate district;
(4) established, apportion- When the senate districts ment of Senators shall remain unaltered until return population another decennial census of order taken Congress. Const, II, § art. except
Article Section provides identical it “Representatives” rather than “Senators.” I, provides
Article Section 3 as follows: people inherent, of this State have sole, and exclu- right regulating government police sive the internal *42 thereof, altering abolishing and and their Constitution form government necessary safety whenever it be to their every happiness; such right pursuance but shall be exercised in consistently of law and with the Constitution of the United States. Const, I,
N.C. § art. 3. I, provides
Article 5 Section as follows: Every paramount allegiance citizen State owes to government States, the Constitution and of the United and no law or ordinance of the State in contravention or subversion any thereof can have binding force. Const, I,
N.C. § art. by interpreting guided In Constitution, State we are certain principles. fundamental proper our construction of Constitution is generally principles controlled the same that control in discern- ing Perry Stancil, of all meaning written documents. 237 N.C.
404 v. for the will and 444, 512, (1953).12 searching 75 514 442, S.E.2d Constitution, expressed in the people of the as intent in their entire- cognate provisions brought are be into view all interpreted purposes of ty as to effectuate the manifest and so way meaning of a word to ascertain the instrument. The best contextually it and to is to read or sentence the Constitution which compare and sentences with it stands it with other words connected. 858, (citations Emery, 581, 583, (1944) 224 31 S.E.2d 860
State v. N.C. Further, is from used omitted). meaning clear the words where meaning elsewhere; if the Constitution, we will not search doubtful, people sought. meaning is intention of the must 918, Equalization, Bd. S.E. Elliott of Moreover, possible interpreta given if the choice of two provision, of which would violate tions of a state constitutional one federal law and one of which would the United States Constitution or consistently interpret provision not, must with federal this Court Arthur, provision. In re law rather than invalidate the constitutional (1977) respect (noting 231 S.E.2d statutory interpretation reasonable con that one two “[w]here question, will raise a constitutional the construc structions serious question adopted”). Finally, if it is tion which avoids this should be interpret provision in possible a state a manner constitutional void compliant law, provision with federal state constitutional Cty., 244 N.C. Supremacy Clause. Constantian v. Anson under “any provision of the (1956) (holding 93 S.E.2d that of North Carolina in conflict federal Constitution or statutes [with invalid”). must be deemed law] present language
In the case the Article Sections n, 3(3) unambiguous be divided” is 5(3) shall clear “[n]o subject interpretations. language has is not to two reasonable This Voting under section 5 been determined be unenforceable hence, forty section; Act to the counties covered Rights *43 provision and, law this is in conflict with federal under Supremacy and the Clause of United States Constitution Constitution, be Supremacy of the North Carolina cannot Clause affect- given drafting legislative force and effect in forty ing those counties. Perry abrogated. provision question has been 12. The constitutional in in since 616,620, Forsyth Hosp., Chisholm, (1996). 342N.C. 467 S.E.2d
See Mem’l Inc. STEPHENSON v. application
While
fit
this case does not
the traditional
of the doc
severability,
concept
trine of
of that doctrine does have an analo
gous application
provides
portion
if
to this case. The doctrine
that
a
provision
of a
is
a
statute
invalid as violative of
constitutional
aor
law,
portion may
federal
remaining
the invalid
be stricken and the
portion given
complete
if it
effect
is whole and
in itself and the intent
legislature
was
such
the statute would have been enacted
portion.
even without
stricken
State ex rel. Andrews v. Chateau
X,
251, 259-60,
Inc.,
judgment
(1979),
250 S.E.2d
grounds,
vacated on other
U.S.
“A part part. parts be If statute valid and invalid in independent, separable, otherwise, part are but the invalid rejected part may stand, be provided and the valid it is com- plete capable C.J.S., itself and of enforcement.” 82 Statutes sec. Our applies decisions are in accord. This well rule established equally portion any provision when a state constitution or thereof is invalid as violative of the Constitution of the United States.
Constantian,
(citations
The record in this case is devoid of evidence garnered requisite would amendments have three-fifths majority for a legislature, constitutional amendment in the Const, XIII, art. had the members antic- § ipated provision appli- that the “no shall be divided” would any counties; cable in less than all one hundred nor does evidence suggest people before the Court that the would have ratified the Any contrary amendments limitation. conclusion to the speculation. pure three-judge based on this record is theAs United Phillips; J. consisting Judges States District Court Dickson Dupree, Jr.; T. W. noted, preclearance Franklin Earl Britt without provision the constitutional regarding division of counties *44 IN THE SUPREME COURT v. BARTLETT (2002)] N.C. 354
[355 forty [pro- the the covered counties. With “effective as law” in territorially by federal author- effect circumscribed thus vision’s] sixty be in the Carolina law would effective ity, under North [it] only legislative, were if there manifest non-covered counties applied differ- [provision] should be popular, intent that the and entially any of including if a failure across the state reason— respect preclearance be held of no effect section 5 should [it]— portions We no such an of the state. find evidence of some of question- any legislative illogic, source. indeed the intent The consequence is manifest. We therefore legality, of such a able necessarily by the [provision leg- intended conclude that the was] upon legisla- populace voting the referendum the islature and tively proposed [provision] rise or fall as a whole. Supp.
Cavanagh, 577 F. at 181-82. people as if it that the intent of the was the Even is assumed majority espouses, question whether, given the the narrower cov- county provision limitation, the be divided” of ered counties “no shall provi- with the State Constitution can be reconciled as written other majority opinion The leaves no doubt sions of the State Constitution. provision cannot be so reconciled. that this majority is a acknowledges that reconciliation fundamental The statutory However, interpretation. goal constitutional and majority appears language to read the from Sessions that “[reconcil- statutory postulate well con- iation is a of constitutional as as Cty., S.E. struction,” v. Columbus Sessions (1939), provision if State mean that one Constitution law, pro- be with cannot, consistent with federal reconciled another liberty vision, Court is at to rewrite one of the then this repeatedly provision example, majority give the no effect. For provision qualifies application shall divided” “no possible” large degree.” as “whenever or “to a words such opinion states: people leg- recognize right that. . . the of the
We is not islative districts which do not divide counties absolute. provi- reality, application [whole-county an of WCP inflexible operation pro- longer is no attainable because of sion] “one-person, Rights [Voting federal visions Act] incorporated standard, within the State one-vote” Constitution.
STEPHENSON v. BARTLETT *45 Yet, majority (Citations omitted). declares, “Where, here, the as the primary purpose of the WCP can be to a large degree effected with- law, out conflict with federal it be should adhered to possible.” interpretation the to maximum extent This ignores plain language county provi- the the of “no shall be divided” sion, unambiguous. majority which is clear and The cites no author- ity theory, which, for this maximization applied majority if as the mandates, I, is inconsistent with Article Section of3 our State Constitution, providing people that of this State have the inher- “[t]he sole, ent, right... altering abolishing exclusive of or majority their con- Const, stitution.” N.C. I, § art. 3. While the notes that the Department of guidelines Justice’s administrative “reflect that states only modify, necessarily need abrogate, application not the of whole- county limitations,” majority apparently the fails to accept that, Constitution, authority under the State this has no Court “modify” provision. to this majority that, “[wjithout question, states the intent of the is to Assembly’s ability
WCP limit the General to draw dis- county according tricts without lines a reasonable of measure respect.” However, the clear and unambiguous language of the “no county provision shall be divided” manifests that the intent not “a is respect” county lines; rather, reasonable measure of the intent of this absolute mandate is that counties not be divided at all. Notwithstanding majority’s conclusory claims, provision the the can- reasonably be interpreted express not evincing people’s “the wishes to contain legislative county district boundaries within lines possible.” whenever rejecting argument defendants’ that this construction provision
“rewrites” the county constitutional to that read “no shall except required by law,” be divided majority extent federal “ states that . compliance overlook the fact. . that with [defendants implied, express federal law is not an but rather an condition enforceability every provision of However, the State Constitution.” by proper operation Supremacy Clause, provisions laws and Const, VI, conflict with federal law Constantian, cl.2; are rendered void. U.S. art. Supremacy
Nowhere applica- in its provision obvious than tortured more shall be divided” guise of reconcil- analysis. Under the majority’s remedial tion in the majority Constitution, amends our State ing county provision permit division be divided” the “no shall rewords multi-county they whose part grouping long as are of counties so approach or traversed. How exterior boundaries are not crossed is “no shall be divided” language with the consistent policy good readily While this revision not necessary discernable. one-person, while comply principle one-vote community interest, maintaining a this decision is one for still people State, not for this Court. legislature or the of this *46 majority’s purported of the State Moreover, the reconciliation regarding multi-member Equal language with the Protection Clause Equal Clause states misses the mark. Our State Protection districts equal protection be of the laws.” person that shall denied the “[n]o Const, I, II, 3(1) 5(1) and state that N.C. art. 19. Article Sections § nearly Representative] as represent, shall as Each may or [Senator inhabitants, of inhabi- be, equal an the number number being Representative] represents or tants that each [Senator by dividing population dis- purpose of the determined by represents he the number of trict that [Senators Representatives] apportioned to that district^] Const, II, provisions 3(1), 5(1). envision multi-mem- N.C. art. These § Nevertheless, majority purports, as in this ber districts valid State. Equal language with the to reconcile the multi-member district by language that the on multi-member dis- holding Protection Clause only that, “while is a limited context” and tricts “effective within compatibly multi-member districts be used instructive as how principles, II, ‘one-person, 3(1) Article Sections with one-vote’ mandates.” 5(1) are not affirmative constitutional II, majority’s portions of Article The “reconciliation” thus treats long- having effect, ignoring as real our 3(1) 5(1) Sections no “construed, if standing that a statute must be rule construction possible, provisions shall be rendered useless or so that none of its presumed portion legislature is intended each redundant. It any provision be sur- given full and did not intend to mere to be effect Winston-Salem, Builders, City plusage.” Porsh Inc. statutory 443, This rule of construc- 276 S.E.2d Perry, equally applicable See is to constitutional construction. tion STEPHENSON v. Ignoring construction, N.C. at 75 S.E.2d this rule of majority has language determined that this in our Constitution effect, merely is,
has but therefore, surplusage no is instructive and By refusing that need give provision followed. effect to this Constitution, majority attempts of our the fundamental avoid principle one section the North Carolina Constitution cannot State, violate another. Leandro 488 S.E.2d is (1997) (“It requirements axiomatic that the terms or of con- stitution cannot be in violation of the same constitution —a constitu- itself.”). tion violate cannot necessarily
A true reconciliation would treat multi-member Equal Clause, districts as not of our violative State Protection co-equal. those two clauses are gives Such construction effect to both respecting while rule that a state constitutional provision truly cannot violate than Constitution. Rather rec- onciling provisions, majority these its forced determined preservation provision “no shall be divided” further amend the making Constitution multi-member districts unconsti- tutional unless the can a compelling General show state having exactly interest in multi-member districts. What that com- pelling plain might litigation. state interest be is left for future II, fact is 3(1) 5(1) that Article Sections Article Sections 3(3) and 5(3) other, cannot be reconciled with each consistent law, federal without the use of multi-member districts or amendment *47 county of provision multi-county the “no shall be divided” to allow groupings. Although limiting allowing multi-member districts and multi-county policy groupings decisions, well be sound under language Constitution, the of our again State this decision is for the legislature people, or the not for Court. this
Finally, by majority today the scheme announced the (i) creates four classes of citizens: who in coun- those reside covered and, therefore, may enjoy county ties not the benefit of the “no shall provision; be divided” those reside in do (ii) who counties that not provision comply receive the benefit of the order in to with section of Voting Rights Act; (iii) the those who reside in noncovered coun- may may provision, ties and or have of depending the benefit the forty county on whether needs their to be divided to enable the cov- preclearance; (iv) ered counties to obtain those who reside provision kept benefit counties that receive the of the and are whole truly (whether part “multi-county whole whole or as of the new groupings” majority’s allowed via to the amendment the Constitu- THE SUPREME COURT IN v. citizenry the was not Clearly, disparate this treatment the
tion). one electing who people were accustomed intention of they county when declared that Representative from each “[n]o county representative or in the formation of senate shall be divided provision of North Constitution district.” No other Carolina by interpreted applicable has ever is terms statewide been its any only No applying regions court in certain the State. or other proposition is fundamental than that our Constitution more uniformly all people applies throughout applies equally to all our one hundred counties. majority
Today,the amends our State Constitution read: county legislative districts shall be divided in the formation of No unless: county Voting Rights section
1. The is covered Act; 2 of county comply must be with section
2. The divided Voting Rights Act; county The must be divided to enable a covered 3. preclearance; achieve “multi-county county part grouping.”
Sadly, arriving proposal, majority sight has at this lost principles of state construction. The first two cardinal constitutional principle is: power, have
“It is well settled in this State that courts duty proper cases, it to declare an act of the General is their plainly clearly it unconstitutional —but must be any doubt, there is reasonable it will resolved the case. If powers by representa- exercise their favor of lawful people.’’ tives of (quoting Preston, 325 385 S.E.2d at Glenn v. Board of 529-30, Cty., (1936)) Educ. Mitchell 187S.E. (emphasis added). *48 principle is: The second
If obso- provisions of Article of the State are the [an Constitution] ill-adapted conditions, this without existing lete or power to Court is remedy. liberally
to However we be inclined devise STEPHENSON v. interpret law, every
to the we fundamental should offend canon transgress jurisdiction of construction and the limitations our upon to review of law legal decisions matters or if we inference undertook to judicial extend function of the to a Court amendment the Constitution.
Elliott,
N.C. at
For II, 3(3) Article Sections 5(3) are void guidelines and unenforceable. The mandated majority may provide a sound and wise basis for how- redistricting; ever, my has, view, authority this Court exceeded its constitutional by amending the State Although agree Constitution. I legislative plans duly enacted are far from certainly perfect, aesthetically ques- and are appealing, only tion before this Court is those whether violate Article 3(3) 5(3) Sections of our Accordingly, State Constitution. to the Constitution, respectfully adherence State I must dissent.
Justice dissenting. BUTTERFIELD
I agree whole-county with Justice Parker’s conclusion that the provisions of our state are Constitution void and I unenforceable. separately explain my write concerning unenforceability view whole-county emphasize important and to role of Voting Rights guaranteeing political Act racial fairness in the process.
The Fifteenth pro- Amendment to the United States Constitution right vides that citizens of the United States vote shall not “[t]he be abridged by by any denied or the United States or state on account Const, race, color, previous servitude,” or condition of U.S. amend. XV, Congress power § has the enforce Fifteenth Const, by appropriate legislation, Amendment U.S. XV, amend. § 1965, Congress, under the enforcement arm of the Fifteenth Amendment, Voting Rights Act, piece enacted the a landmark of civil rights legislation. Voting Rights designed lega- Act is to address racially polarized discriminatory cies of voting voting practices that have not vanished. Voting Rights politi-
Section of the Act covers all states and all provides cal quali- subdivisions within the states. voting that “[n]o It prerequisite standard, practice, procedure fication or voting or or imposed by any shall applied political or in a subdivision *49 412 v. BARTLETT
STEPHENSON (2002)] N.C. 354 [355 any right of abridgement denial or the manner which results in a 42 on of race or color.” United States to vote account citizen of the simplest terms, section concerns 1973(a) (1994). U.S.C. In the § Act, Rights protected Voting a class. Section 5 of vote dilution of juris- entirety and covers some in their selected which covers states Carolina, a applies when states, such as North dictions in other any voting or to jurisdiction “shall enact seek administer covered standard, practice, pro- qualification prerequisite voting, or or simply, section 5 § 42 U.S.C. 1973c Also stated cedure.”13 minority voting prevent strength. “retrogression” seeks Leahy 1982, In United States Senator Patrick observed Rights during hearing amending Voting on following Senate Act: act it engine
If 5 is the that drives the and renders section practical matter, 2 is the basic section still enforceable discriminatory protection against practices. does Preclearance every not all areas not threatened viola- cover resolve designed stop voting apply. tion where it does Preclearance is jurisdictions, start discrimination before it can in covered to end it and wherever it is section is calculated whenever found. 1992, Voting Hearings 53, 1761, 1975, S. S. Rights Act: on S. S. and H.R. 3112 the Subcomm. on Constitution Before Comm, Judiciary, Cong. (1982) (statement
Senate on the 97th Comm, Member, Judiciary). on Leahy, Sen. Senate amend sought the North Carolina General provi- of North Carolina. amendments Constitution The included process. prohibiting dividing sions of counties in the proposed placed The constitutional amendments were on the ballot passed ample margin. proposition in 1968 an The the ballot present simply, continuing stated “FOR constitutional amendments system representation Assembly,” in the General and “AGAINST system continuing present representa- constitutional amendments Assembly.” May Act of ch. sec. tion jurisdictions: Anson, Bertie, forty Beaufort, 13. Carolina has covered North Bladen, Camden, Caswell, Chowan, Craven, Cumberland, Edgecombe, Cleveland, Gates, Greene, Halifax, Hertford, Hoke, Franklin, Gaston, Granville, Guilford, Harnett, Martin, Perquimans, Jackson, Lee, Lenoir, Nash, Northampton, Onslow, Pasquotank, Wayne, Person, Robeson, Scotland, Union, Vance, Pitt, Rockingham, Washington, Wilson Counties. THE SUPREME COURT '413 IN v. BARTLETT expressly proposition N.C. Sess. indi- Laws did adopted. whole-county provisions being were cate *50 Upon adoption by of the amendments the voters the State of North Carolina did not submit the constitutional amendments to District the the of Columbia District Court or to United States Department required by of the Voting Rights of Justice as section 5 subsequently When the were Act. amendments included in the 1971 Constitution, sought preclearance the State of the entire Constitution Attorney identify through specifically pro- the General but did not the required by relating voting as visions section administrative guidelines. nonprecleared whole-county provisions
The were enforced in the process with redistricting no divided counties. the State attempted whole-county provisions. the again However, to enforce Attorney objected plans United General States submitted nonprecleared Upon discovered the 1968 amendments. discov- ery, preclearance. Attorney the amendments submitted for The were preclear and, power General refused to under amendments by Act, Voting Rights interposed to him 5 of the an vested section objection forty to the use the 1968 in the amendments covered Attorney objection The effect of give counties. General’s was to Assembly forty the General discretion to those divide counties Voting Rights covered section 5 of the Act.
Following objection Assembly conclud- Attorney preclear refusal ed that General’s amend- whole-county provisions completely ments rendered the unen- Assembly forceable, thereby granting the General the discretion to divide counties statewide. The General thereafter exer- forty cised discretion and divided counties outside the covered jurisdictions. redistricting plans challenged were 1982 on the basis
The alleged whole-county provisions. The of an violation of the case was position court, to federal and the State’s that the whole- removed upheld three were unenforceable was federal Carolina, Phillips; Judges from North J. Dickson Franklin T. judges Brock, Dupree, Jr.; Cavanagh Supp. W. 577 F. Earl Britt. subsequently 1983). Supreme States Court (E.D.N.C. The United plans Thornburg down struck the 1982 violative of section Ed. Gingles, 478 U.S. 92 L. 2d 25 All THE COURT IN SUPREME v. BARTLETT forty covered outside of the Gingles have divided counties since counties. States preclearance proceedings, the United
In administrative District Attorney for the District of Columbia surrogate General is a juris- unless the covered voting practice is enforceable Court. No new obtaining preclearance. § 42 U.S.C. 1973c. has succeeded in diction Attorney States General has Voting changes to which the United objection interposed legally an are unenforceable. Attorney objection
Unquestionably, States General’s the United whole-county provisions unenforceable in the void and rendered the forty Supremacy Clauses of the United States covered counties. The prohibit the enforcement of and North Carolina Constitutions Const, forty whole-county provisions covered counties. U.S. in the Const, I, question then becomes VI, 2; cl. N.C. art. 3.§ art. *51 capa- provisions as to all counties or are whether the are invalidated partial remaining noncovered counties. of enforcement in the ble applies construing constitutions, and it “One of the first rules in people instruments, is to ascertain the intention of the to all written City Durham, 668, 677, N.C. 92 S.E. adopting it.” Reade v. 173 of provisions should be construed (1917). “Constitutional contemplation objects purposes in at the consonance with the adoption. whom the of their To ascertain the intent of those time they used, must consider the conditions as then language was we purpose accomplished.” Perry v. sought and the to be existed Stancil, S.E.2d majority holding the fullest effect states that its “accords majority people.” The offers
possible to the stated intentions of the My people. of the view of the insight no as to how it divined the intent nostalgia for whole coun- people’s intent does not include the sacred majority ties that the seems to embrace. important voting discrimination in 1968was
It is to mention that especially significant and that African-American citizens were sub- jected practices procedures right register that affected their to to Accordingly, legislators vote to be able to elect of their choice. Assembly in the General there were no African-American members adopted. The electorate in 1968failed to when the amendments were many eligible register were African-American citizens who include reasons attributable to registered vote but were not because of discrimination, words, voting Voting which the their race. other Rights eliminate, present Act seeks to was in the enactment and adoption of the under Therefore, amendments review. I am unable represented to conclude that the amendments the will of all of the people Assembly passed when the General them and the voters adopted them.
A historical evaluation light purpose sheds some on the majority 1968 amendments. The path sets out the basic of how the whole-county , incorporated came to be into the points Constitution of North Carolina. There are several I that believe majority omits in its my discussion that are relevant reasoning. First, until the put place whole-county 1968 amendments that provisions, express prohibition there was no in the Constitution against the division of counties in the creation of House dis- Rather, tricts. requiring constitutional mandate at least one Representative county county for each was, prac- meant that no tice, important ever divided. This is a subtle but distinction. Prior to Drum Seawell, Supp. 249 F. (M.D.N.C. 1965), aff’d
per curiam, 383 U.S. L. (1966), 16 Ed. 2d 298 under the constitu- requirement county tional that each Representative, have at least one House districts were Sanders, Maps never divided. See John L. Congressional Districts, North Carolina 1789-1960, and State Apportionment Senatorial Districts and Representatives, Gov’t, (Inst, Chapel Hill, 1776-1960 Univ. of 1961); N.C. at John L. Sanders, Representation Materials on in the General Gov’t, North (Inst, Chapel Hill, Carolina Univ. of 1965). adoption amendments, After Drum and the of the 1968 no was district, divided in the creation of a House or Senate until as a *52 prohibitions result of the against dividing constitutional counties. See 13, 1966, 1, Act of Jan. ch. (Extra 1966) Sess. Laws Sess. 13; 14, 1966, Act of Jan. ch. (Extra 1965 N.C. Sess. Laws Sess. 1966) 17; 1, 1971, Act of June 412; July ch. 1971 N.C. Sess. Laws Act of ch. 1971 N.C. Sess. Laws 1743. It is true that there was prohibition in the 1868 Constitution on the division of counties for provision prohibited some Senate districts. That the division of coun- ties in the creation of a Senate district unless that district was enti- tled Therefore, express prohibition to two or more Senators. against dividing counties for Senate districts all never affected simultaneously application. counties in its majority states, proposed
The “The amendments for the Senate Representatives reincorporated prohibition and House of against THE SUPREME COURT IN v. BAETLETT “reincorpo- only prohibition was The of counties.” the division adoption After the was for the Senate. in the amendments rated” amendments, 5(3) of the Constitution Article Section the 1968 previously prohibition that did not exist created a North Carolina The in the creation of House districts. of counties against the division Representative was every county at least one have requirement that amendments were when the 1968 stricken from the Constitution changes to the whole- of 1971 made no adopted. The Constitution adopted in the form county provisions, and those remain in 1968. catalyst was the for the majority acknowledges that Drum
The “leg- majority states that Drum held that amendments. The require- ‘one-person, one-vote’ redistricting violated the islative void.” In Constitution and were therefore ment of the United States people, must understand what the intent of the one order to divine the effect of the Drum decision on was at issue in Drum and Constitution. achieved without under- understanding
A full
of Drum cannot be
reapportionment.
between
standing the distinction
precise
different
meaning
terms has a
that invokes
Each of these
parlance,
terms have tended to be
aspects of law. In modern
the two
Reapportionment
haphazardly and, sometimes, interchangeably.
used
political
legislators among existing
subdivi-
is the reallocation of
existing district lines.
Redistricting
redrawing
is the actual
sions.
Representatives, 525
Department
Commerce v. U.S. House
See
(discussing role of decennial cen-
(1999)
U.S.
If presumption one from the that the 1968amendments response Drum, were in presumption then such seem would weaken, majority’s than support, rather argument concerning Contemporary reports by intent. complying those involved in presumption. Drum bolster this Then Governor Daniel K. Moore special addressed a legislative session convened after the November 1965decision in Drum as follows: gentlemen,
Ladies and the hour of decision has arrived. Assembly The General of North Carolina must meet head on the Supreme mandate of the reappor- Court of the United States and tion both congressional houses and districts in accordance with man, the “one Supreme one vote” decision enunciated Assembly Court. The General must make these decisions in com- pliance specific with the orders of the United States District Court for the Middle District of North Carolina issued on November 1965.
Message to the Extra Session (Jan. 1966), of the General Messages, Addresses, Papers Moore, Public Daniel Killian Carolina, Governor North 1965-1969, 65, (Memory at 69 F. 1971). Reynolds, Mitchell ed. Supreme the United States Court requirement substantially equal established the representation for all stated, citizens in a state. The respect Court “With allocation representation, voters, State, all citizens stand in they regardless the same relation Reynolds, of where live.” U.S. 565, 12 at L. Ed. 2d necessity If there was an absolute amending Constitution, problems I believe it arose from the requirement created the constitutional to have at least one Representative per county. previously
This Court has examined the effect of federal court decisions on analy- the Constitution of North Carolina. The severance applicable statutes, sis determining portion whether one portion statute can after survive another of the statute has been stricken, equally applicable provisions. to constitutional Cty., Constantian Anson 244 N.C. 93 S.E.2d two-part severability test was set out State ex rel. X, Inc., Andrews v. Chateau 250 S.E.2d *54 COURT IN THE SUPREME v. BARTLETT
STEPHENSON (2002)] N.C. 354 [355 grounds, 445 U.S. on other judgment vacated (1979), as follows: (1980), L. 2d 782 Ed. portions are in fact divis- the
To whether [of statute] determine remaining capable are portions if the ible, first see the courts intent, They also look to on their own. being enforced body have enacted whether that would particularly to determine omitted. provisions if the invalid ones were valid the whole-county provisions, I statutory analysis to the Applying this the 5(3) are severed from 3(3) if Sections believe that Article remaining amendments, then the constitutional clauses of the 1968 representation, contiguity, and concerning equal remaining clauses— cen- apportionment congressional between unaltered districts and previously capable being on their own. As enforced suses—are principal legislative intent of the 1968 expressed, I believe that the “one-person, comply with Drum and the federal amendments was to requirement. I that the 1967 General believe one-vote” the amendments to the voters without have voted to submit would whole-county provisions comply Drum and that order whole-county paramount intent provisions not vital to the the were the amendments. whole-county were, Cavanagh as the court
The Cavanagh, Supp. 577 F. at 182. We stated, “to or fall as a whole.” rise impediments placed on the are faced with the combination processes supremacy of reapportionment requirements Voting Rights Act, the under section 5 of the section state, “one-person, one- applied must across the entire that requirement. vote” requirements over- aggregate, in the I believe these
When taken they whole-county provisions are func- extent whelm any purposeful tionally give that would them unworkable manner demographics of 1968 elec- effect, considering Drum and the they My torate, are, therefore, unenforceable. determination and that logically makes whole-county provisions are unenforceable of the our state Constitution the issue further examination of moot single-member propriety of multi-member and districts constitutional remedy. majority fashioning undertook in its that the whole-county provisions very that the strongly While I feel compelled unenforceable, I am are void and state Constitution upon majority’s remedy. majority comment has crafted a rem- edy gives that it whole-county believes maximum enforcement to the provisions. my view, majority has assumed in legisla- to act tive, judicial, capacity rather than a approach remedy. its ato This Court has stated: *55 upon
When power called to exercise its inherent constitutional remedy fashion a law particular common for a violation of con- right,.. judiciary stitutional . the must recognize two critical lim- First, itations. it must bow to established claims and remedies provide where these an extraordinary alternative to the exercise power. its inherent constitutional In County re Alamance Facilities, 84, 100-01, Court 405 S.E.2d 133 (1991) (discussing applying powers inherent judiciary). Second, in exercising power, judiciary must minimize the upon government encroachment other appear- branches of —in by ance and in seeking remedy the least intrusive available fact— necessary wrong. right Id. University N.C., Corum 761, 784, 413 S.E.2d denied, cert. 506 U.S. 121 L. Ed. 2d 431 by majority, criteria directed while similar to criteria by judiciary utilized remedies, court-ordered are an encroach- upon ment Legislative the discretion of the government. Branch of Assembly fully capable Our General interpreting the decision of discretionary this Court having without its legislative authority bound government. the Judicial major- Branch I believe that the ity’s approach remedy to the is excessive in its reach. sum, I whole-county provisions believe that the of our state are completely unenforceable,
Constitution void and and I believe that the General determining was correct in that the whole- county provisions were Accordingly, unenforceable statewide. I uphold would vote to redistricting plans the 2001 enacted Assembly. Therefore, General I respectfully must dissent.