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RALEIGH -- As expected, on Monday the North Carolina Board of Elections officially delayed the state's scheduled May 4 electoral primaries for federal, state, and local office. The new date is July 20, reportedly the latest date possible that would still allow for a regular partisan primary, a possible run-off primary in August, and the start of absentee balloting in September.
Also as expected, the political class in Raleigh is engaged in a furious game of finger-pointing over who is to blame for the "calamity." In actuality, there are many North Carolina politicians, activists, and commentators who don't find this calamitous at all. More importantly, all of the media chatter about the impact of pending redistricting litigation on the primary delay is baseless.
It is true that North Carolina's redistricting imbroglio began in 2002 with a lawsuit filed by Republican plaintiffs against an egregious Democratic gerrymander of legislative districts enacted in 2001. A somewhat bewildering series of court decisions followed, won in nearly every case by the GOP plaintiffs. There is no question that the delay in the 2002 primaries stemmed from this successful legal challenge of the districts. There is also no question that the plaintiffs find fault with the latest maps, drawn by legislators late last year, and have again sought a remedy in the state courts for what they perceive to be violations of state constitutional principles and past court decisions.
But, and let me be absolutely clear about this, the ongoing litigation has nothing to do with the delay in the May primaries. The plaintiffs have yet to even get a hearing on their state-constitutional claims, and won't get one before state judges until March. There is no court-ordered stay in the use of the 2003 legislative maps, no court-ordered delay in the primaries, nothing of the kind.
The reason why North Carolina won't hold its primaries on time is that the General Assembly waited until just before Thanksgiving to draw House and Senate districts. They were under a court order issued in 2002 to redraw the districts. They could and should have taken care of the job during their regular 2003 legislative session. But they did not. They waited until late November and then enacted a timetable as part of the resulting legislation that left only about two months for the maps to pass muster with the federal government or else the primary would be delayed.
By the federal government, I specifically mean the U.S. Justice Department. And the state's self-imposed chronological train wreck was actually worse than it appeared on the surface. You see, legislative leaders did two additional things that made meeting the Feb. 9 deadline for federal approval virtually impossible to meet. First, rather than simply applying to the Justice Department for "preclearance" under the Voting Rights Act, Senate leader Marc Basnight, House Speaker Jim Black, and House Co-Speaker Richard Morgan chose to file a lawsuit in a federal court in Washington, with Attorney General John Ashcroft as the defendant, in order to secure preclearance. This added another step to the process: first the Justice Department would have to issue any objections it had to the maps, and then the federal court would have to adjudicate the dispute. Previously, North Carolina had simply submitted to the Justice Department's preclearance. It should have again, if time was truly of the essence.
Second, and more problematically, the legislative leaders chose to fashion new House and Senate districts based on a new and untested theory of how the Voting Rights Act applies to districts with substantial but not majority-minority populations. They cited a recent U.S. Supreme Court ruling in a case, Georgia v. Ashcroft, in which the court seemed to rule that majority-minority districts could experience a reduction in the share of minority voters without it being considered a "retrogression" -- a violation of the Voting Rights Act, in other words.
I don't happen to agree with the way North Carolina officials sought to apply the Supreme Court's decision, since in Georgia lawmakers were reducing the percentage of black voters in some majority-minority districts in a larger effort to increase the total number of such districts across the state. In North Carolina, no such effort was evident. The reductions in black voters in key districts were clearly designed to increase the number of districts favorable to Democrats, white or black.
Still, even if I am wrong and North Carolina officials are correct about the issue, why did they wait until late November to enact legislative districts based on Georgia v. Ashcroft, and their own at least debatable interpretation of it, knowing that their handiwork would have to be evaluated by Justice and/or a federal court? Why did they complicate the Votings Right Act preclearance process, essentially inviting both Republicans and aggrieved black Democrats to express their frustrations to federal officials, and then set up only a few weeks of deliberation time in which to resolve these difficult issues?
The only reasonable conclusion to draw here, as I have previously argued, is that North Carolina Democrats -- and Richard Morgan -- wanted the primaries to be delayed. Perhaps they think later primaries are better. Perhaps they think later primaries will help Democrats. Perhaps Morgan thought that delaying the entire process would help him "double-bunk" or otherwise disadvantage his Republican rivals and give them no recourse.
It doesn't matter. The delay in the May 4, 2004 primaries began in 2003 with an unnecessary delay in the legislature's response to a court order to redraw districts. You can't blame the Stephenson plaintiffs this time.
Hood is president of the John Locke Foundation and publisher of Carolina Journal.
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John Hood's Daily Journal
