File image attached of former U.S. Supreme Court Justice Sandra Day O’Connor. Image from C-Span

By Mitch Kokai, Carolina Journal

 It's a shame the N.C. Supreme Court ignored a valuable lesson from the writing of the politically savvy Sandra Day O’Connor. That lesson could have helped the court avoid its recent decision rejecting state election maps.

O’Connor won national fame, of course, as the first woman to serve as a justice on the U.S. Supreme Court. It’s a job she held for 25 years before retiring in 2006.

But long before her quarter-century on the nation’s highest court, O’Connor hit another significant milestone. It’s one that attracts much less attention today. Prior to donning a judge’s robes, she served in the Arizona state senate. She was the first woman to lead that body’s Republican majority.

O’Connor’s firsthand knowledge of the legislative process came in handy in her higher-profile job in Washington, D.C. Experience with lawmaking, elections, and voters' real-life behavior helped her dissect arguments in political controversies at the Supreme Court.

That’s certainly true of cases involving claims of unconstitutional partisan gerrymandering. It’s in that arena where O’Connor’s words should have carried weight today with justices sitting on North Carolina’s highest court.

“[T]he legislative business of apportionment is fundamentally a political affair, and challenges to the manner in which an apportionment has been carried out — by the very parties that are responsible for this process — present a political question in the truest sense of the term,” O’Connor wrote in a 1986 concurring opinion.

Courts tend to shy away from issues labeled “political questions.” In this case, O’Connor identified good reasons to do so.

“To turn these matters over to the federal judiciary is to inject the courts into the most heated partisan issues,” she wrote. “It is predictable that the courts will respond by moving away from the nebulous standard a plurality of the Court fashions today and toward some form of rough proportional representation for all political groups. The consequences of this shift will be as immense as they are unfortunate.”

“I do not believe, and the Court offers not a shred of evidence to suggest, that the Framers of the Constitution intended the judicial power to encompass the making of such fundamental choices about how this Nation is to be governed,” O’Connor added. “Nor do I believe that the proportional representation towards which the Court's expansion of equal protection doctrine will lead is consistent with our history, our traditions, or our political institutions.”

Of course, O’Connor limited her comments to the federal courts. Since her retirement, in a 2019 case with direct implications for North Carolina, the U.S. Supreme Court followed her advice. It shut the door on federal courts’ consideration of partisan gerrymandering cases. Meanwhile, justices ruled that state courts could address the issue.

But judges and justices at the state level also would be wise to consider O’Connor’s words. Her 1986 opinion warned the judicial branch about the likely impact of meddling in partisan redistricting fights.

“The step taken today is a momentous one which, if followed in the future, can only lead to political instability and judicial malaise,” O’Connor wrote. “If members of the major political parties are protected by the Equal Protection Clause from dilution of their voting strength, then members of every identifiable group that possesses distinctive interests and tends to vote on the basis of those interests should be able to bring similar claims.”

Courts could be forced “to reconcile the competing claims of political, religious, ethnic, racial, occupational, and socioeconomic groups,” she warned. “Even if there were some way of limiting such claims to organized political parties, the fact remains that the losing party or the losing group of legislators in every reapportionment will now be invited to fight the battle anew.”

At least one interested party in today’s N.C. redistricting fight highlighted O’Connor's practical wisdom. In a friend-of-the-court brief at the state Supreme Court, the National Republican Congressional Committee cited her views.

“[T]here is good reason to think that political gerrymandering is a self-limiting enterprise,” O’Connor argued, as quoted in NRCC’s brief. “In order to gerrymander, the legislative majority must weaken some of its safe seats, thus exposing its own incumbents to greater risks of defeat – rights they may refuse to accept past a certain point.”

“Similarly, an overambitious gerrymander can lead to disaster for the legislative majority: because it has created more seats in which it hopes to win relatively narrow victories, the same swing in overall voting strength will tend to cost the legislative majority more and more seats as the gerrymander becomes more ambitious,” O’Connor added. “More generally, each major party presumably has ample weapons at its disposal to conduct the partisan struggle that often leads to a partisan apportionment, but also often leads to a bipartisan one.”

“There is no proof before us that political gerrymandering is an evil that cannot be checked or cured by the people or by the parties themselves,” O’Connor concluded. “Absent such proof, I see no basis for concluding that there is a need, let alone a constitutional basis, for judicial intervention.”

Democratic justices making up the majority of our state’s Supreme Court reached an opposite conclusion. It's unfortunate that they missed an excellent chance to emulate a judicial pioneer.

Mitch Kokai is senior political analyst for the John Locke Foundation.

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