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.