Wednesday, December 28, 2016

Do the North Carolina Legislature's Power-Stripping Laws Violate the Federal Constitution?

by Michael Dorf

My latest Verdict column discusses the two laws recently enacted by the Republican-dominated North Carolina legislature stripping the Democratic Governor-elect of some of the key powers enjoyed by the departing Republican Governor. One of the new laws also limits the jurisdiction of the state supreme court, which--not coincidentally--is about to have a Democratic majority. I mostly focus on potential challenges under state law, noting also that the law could be vulnerable to a federal challenge under the Voting Rights Act. Here I want to consider possible federal constitutional challenges.

I'll begin by assuming arguendo that the "real" rule in North Carolina is that Democratic governors have fewer powers than Republican governors. Below I relax that assumption, but for now, it will simplify the analysis to imagine that the law in North Carolina defines the powers of the governor as weaker for Democrats than for Republicans. Is that a violation of the federal Constitution? If so, what part?

As Prof. Buchanan noted in a post last week, one textually inviting challenge arises under the Guarantee Clause. By hobbling the Democratic governor, the legislature seems to be guaranteeing a big-R Republican government, not a small-r republican form of government. Yet, as he also notes, longstanding precedents going back to Luther v. Borden in 1849 render the Guarantee Clause non-justiciable. Although a couple of early 1990s opinions by Justice O'Connor (summarized in a footnote here) raised the possibility that Guarantee Clause claims might be justiciable after all, the current Supreme Court, to say nothing of the Supreme Court that will emerge after the next appointment, seems unlikely to be receptive to such a claim.

How then, might one challenge the actions of the North Carolina legislature under the federal Constitution? The Equal Protection Clause of the Fourteenth Amendment is a possibility, but political party affiliation has not heretofore been recognized as a suspect or semi-suspect classification. Without that, the legislation would be subject only to rational basis scrutiny, which it could probably satisfy based on the fig leaves of public-regarding justifications about the allocation of authority in North Carolina. Of course the legislature's claim that the governor needed to be reined in to protect the balance of powers in North Carolina does not reflect the true motivation for the legal changes, but under rational basis scrutiny, true motivation is typically irrelevant.

A better way to get to heightened scrutiny runs through the First Amendment (as made applicable to the states via the Fourteenth). Rutan v. Republican Party of Illinois and other SCOTUS cases prohibit government from discriminating based on political party affiliation in hiring and firing relatively low-level employees, based on the free speech rights of the employees. To be sure, Rutan and those other cases permit party affiliation to serve as a basis for selecting high-level officials, but presumably that's because such high-level officials carry out policies set by the elected officials--where persons of different parties can compete equally. There's no problem with a Republican governor considering only Republicans for his cabinet, but that's because we take for granted that Democrats as well as Republicans are entitled to run for the same office of governor.

One might object to what I've just proposed on the ground that making the powers of the governor the same regardless of whether the governor is a Republican or a Democrat is not a matter of the free speech of candidates; it's a matter of the basic ground rules of democracy. That concern, the objection continues, is simply the Guarantee Clause concern in disguise, and therefore any complaint about its violation should be non-justiciable.

I find this (hypothetical) objection not especially damning, because it was the very objection that was lodged by Justices Frankfurter and Harlan, dissenting in Baker v. Carr. In finding that challenges to legislative malapportionment under the Equal Protection Clause were nonetheless justiciable, the Baker majority did not overrule Luther, but it did indicate that the non-justiciability of Guarantee Clause claims was just that: a limit on the justiciability of claims under the Guarantee Clause, not a limit on the justiciability of claims that are brought under other constitutional principles simply because they challenge arrangements that also could be challenged (in a political forum) under the Guarantee Clause. Baker said, in effect, that Luther didn't apply to Equal Protection claims. Likewise, it wouldn't apply to First Amendment claims.

Another potential obstacle to a free speech challenge might build on the Supreme Court's 1997 ruling in Timmons v. Twin Cities Area New Party. There, the Court upheld a state ban on "fusion" candidacies (whereby a third party cross-endorses a major-party candidate). Fusion candidacies allow third parties to register support--and thus build to major-party status--without risking playing spoiler. In upholding the fusion ban, the Supreme Court credited states' asserted interest in "the stability of their political systems," which, "permits them to enact reasonable election regulations that may, in practice, favor the traditional two party system . . . and that temper the destabilizing effects of party splintering and excessive factionalism."

Well, if the state can favor the two-party system for "stability," why not a one-party system, which is even more stable? The short answer, of course, is that stability is not valued for its own sake. The state's interest in the two-party system is an interest in avoiding one-party rule. Although probably overstated in Timmons, the Court's underlying concern about "splintering and excessive factionalism" was undoubtedly meant to invoke the specter of Weimar Germany, where the splintering of political power among multiple parties allowed the Nazis to rise to power with initially only minority support. Accordingly, properly understood, Timmons cannot provide any support for the idea that a state's interest in stability warrants advantaging a single party.

Accordingly, I conclude that if the "real" law in North Carolina is "Republican governors get more power than Democratic governors," then that real law violates the First Amendment. But is that the real law in North Carolina? Perhaps the real law is actually best characterized at a higher level of abstraction as follows: Whenever any party dominates the legislature, that party can adjust the law so as to empower governors of its own party and to disempower governors of the other party. If that's the real law, then the real law doesn't discriminate against Democrats.

And in one obvious sense, the italicized proposition is the real law in North Carolina. The problem, however, is that the legislature has not just disempowered a Democratic governor. The legislature has changed the law in a variety of ways that lock in Republicans'  own power--especially with respect to the Board of Elections.

Challenges to that kind of action should be very reminiscent of Baker v. Carr itself. As most famously articulated and defended by the late great John Hart Ely, courts have the strongest justification for interfering with the outputs of legislation when those outputs undercut democratic representation itself, when, in Ely's terms (at pp. 101-04 of Democracy and Distrust), the "ins" write rules that help themselves to stay "in." That is an excellent description of what is going on in North Carolina.

Unfortunately, although Ely's justificatory account of representation-reinforcing judicial review was based on the foundation of Warren Court cases, later jurisprudence does not consistently make good on its promise. Most notoriously, the Court ruled in Vieth v. Jubelier that challenges to partisan gerrymandering are all but non-justiciable. ("All but" because Justice Kennedy, concurring in the judgment, left open the possibility that someone might some day propose a sufficiently definite standard for him to conclude that such a challenge did not pose a political question. No one has yet.) North Carolina's Republicans have taken full advantage through partisan gerrymandering of the state legislature and the state's congressional delegation.

Yet if challenges to partisan gerrymandering itself are non-justiciable, it does not follow that all challenges to state legislative practices that entrench the incumbent party are non-justiciable. Just as Baker rejected such a broad assertion with respect to Guarantee Clause claims and Equal Protection claims that challenge malapportionment, and just as I argued above that similar logic makes the nonjusticiability rule of Luther inapplicable to First Amendment claims, so too here, we could say that the rule of Vieth only applies to challenges to a particular kind of legislative entrenchment of the power of the "ins"--partisan gerrymandering. Accordingly, it is at least possible for a First Amendment challenge to the North Carolina power-stripping laws to get off the ground.


Shag from Brookline said...

A "republican form of government" is not defined in the Constitution. If we assume that the federal government as set forth in the Constitution is a "republican form of government," could what was done in North Carolina be done at the federal level? If so, would such be justiciable?

Michael C. Dorf said...

At the federal level, the particulars of Articles I through III supersede any general principle, so the question would be whether the legislation violates those particulars.

Michael C. Dorf said...

NB: On Twitter, a (critical) reader of my column calls me to task for failing to address the fact that the NC GOP moves were presaged by similar moves by NC Dems, citing a piece by Jonathan Adler on VC:

Here, three short responses:

1) A NC expert to whom I spoke before running the column confirmed that the GOP went substantially further than Dems had in prior instances, and Adler seems to agree that GOP went further here.

2) My column is not meant to be partisan. E.g., I cite Massachusetts Democrats who did something similar as a precedent and include that in my condemnation.

3) Tu quoque is never a good argument, and especially bad here where my point is not to say Republicans are especially undemocratic but to condemn a set of tactics, whether used by Ds or Rs.

t jones said...

When does NC's SB 4 measure which political party is the majority? If it's each year, what's to stop some large number of Democrats from changing their registration in even years to shift the majority to Republican? (No Republicans read this, right?).

Joe said...

Per the critic, there are various things -- like political gerrymandering -- that should be addressed even if "they do it too."

But, overall, Republicans in recent years over and over again have done certain things in worse ways. The "both sides do it" bit is b.s. in that people are not adequately respectful of truth here. The federal Congress particularly shows this. See, e.g., "Broken Branch" by two congressional experts who aren't that lefty.

As to constitutional challenges, the column cites certain possible state law challenges, which might get the most traction. The 1A argument seems the most likely to win out, but fear it will be an uphill battle. As to "republican form of government," the term in effect has wide meaning. Federalist 39 offered:

"We may define a republic to be, or at least may bestow that name on, a government which derives all its powers directly or indirectly from the great body of the people, and is administered by persons holding their offices during pleasure, for a limited period, or during good behavior. It is ESSENTIAL to such a government that it be derived from the great body of the society, not from an inconsiderable proportion, or a favored class of it; otherwise a handful of tyrannical nobles, exercising their oppressions by a delegation of their powers, might aspire to the rank of republicans, and claim for their government the honorable title of republic. It is SUFFICIENT for such a government that the persons administering it be appointed, either directly or indirectly, by the people; and that they hold their appointments by either of the tenures just specified."

A "favored class" (faction?) would violate this principle, including if favoring Republicans. Some of the measures are facially neutral (number of people a governor appoints etc.) but have a dubious purpose. As noted in the column, a big part of this are basic norms. Again, it's a general principle, but one Republicans have violated more of late. When they control Congress and soon the presidency (vomit), it is simply childish to whine "both sides do it," when at the moment a particular side is rightly seen of special concern.

David Ricardo said...

As a North Carolina resident let me say that while I would very much like for Mr. Dorf’s argument that there is some basis for bringing a federal challenge to the recent changes in North Carolina laws which work highly in favor of the Republicans, almost everyone in the state believes that there is no viable way to undo what the legislature hath wrought in either state or federal courts.

There are two categories of changes, one being changes to the authority of the governor, the second being a change in administration of voting. With respect to the second, prior to 2017 in North Carolina each county had a three person election board, two of members of which were the governor’s party. In addition the state board of elections is controlled by the governor’s party. So for the 2016 election the election administration was controlled by Republicans.

But despite this factor, the Democrat won the governor’s race. Even more important, the incumbent Republican challenged the vote count (essentially arguing that his own party conspired to engage in voter fraud against him, what a smuck as my people would say). A hand recount took place in Durham county where the Democrat won a huge majority. The recount showed no change, the voting process had 100% integrity.

The problem in North Carolina is voter suppression, laws by the Republicans to make Democratic turnout very difficult particularly in low income and minority neighborhoods. These laws were largely rejected by the courts, but Republicans violated much of the spirit of the court decisions and were able to suppress enough Democratic votes to tip the state to Trump. Fortunately the incumbent Governor was so disliked that even with voter suppression he still lost.

So the issue in North Carolina is not the recent laws passed after the Democrat was elected Governor. It is the need to overcome massive gerrymandering (Republicans hold veto over-ride majorities in both houses despite the state being evenly divided politically) and get a Democratic legislature that will make the voting process fair and reasonable and easy and representative. Right now none of that is present. The solution to the destruction of democracy in North Carolina will have to come from the voting booth, as difficult as that is, and not from the court house.