Sunday, February 06, 2022

The Newby Dissent

To say that NC Supreme Court Chief Justice Paul Newby is pissed about Harper v. Hall would be a considerable understatement. He did a Rumpelstiltskin stomping dance about it in his dissent (which begins on page 10), to which fellow Republican associate justices Phil Berger Jr. and Tamara Barringer signed on. But it's useful for partisans to read, because it's a roadmap to how the GOP and their pals in various 501.c.4s and Super PACs will be campaigning this fall to take over the Supreme Court of North Carolina for the betterment of regressive politicians everywhere.

NEWBY dissenting. I dissent from the decision of the Court which violates separation of powers by effectively placing responsibility for redistricting with the judicial branch, not the legislative branch as expressly provided in our constitution. As predicted by the Supreme Court of the United States, this Courts decision results in an “unprecedented expansion of judicial power.”

I'm struck by the yawning gap between his reality and ours regarding "the rights of others":

Recognizing special rights to one favored person or group invariably diminishes the rights of others.

[What? Does he mean that the order in Harper v. Hall has absolutely trampled on the rights of Berger Moore to create authoritarian government? The right to punish political opponents?]

Newby says a citizen, any citizen or group of critizens, can't challenge partisan gerrymandering through the courts. Simply can't. "[A] claim for partisan gerrymandering presents a nonjusticiable political question." Period. You cannot seek redress from being subjected, say, to seeing your county cut up and parceled out to dilute its political strength. Newby's Valentine message to "Dear Citizens," particularly of the Democratic stripe: You're shit outta luck. 

Which is why the opinion in Corum v. University of North Carolina was so important for the Court's majority. Corum found that any citizen had standing to bring a constitutional claim against a "sovereign actor," despite no specific statute authorizing it. Newby both acknowledges Corum and blows right past its logic to sneer at a supposed "protected class":

[The Court's Democratic majority] seeks to support [statewide political proportionality in redistricting] with various provisions of our Declaration of Rights that are designed to protect individual and personal rights. Corum v. Univ. of N.C., 330 N.C. 761, 782, 413 S.E.2d 276, 289 (1992). In doing so, it magically transforms the protection of individual rights into the creation of a protected class for members of a political party, subjecting a redistricting plan to strict scrutiny review.

The people's interests, the people's rights. Newby throws those terms around like rose petals over a grave: "[L]egislators, as opposed to judges, are in the best position to address the people's interest." 

But by last count, the State Board of Elections reports 2,494,836 registered Democrats in North Carolina, compared to 2,184,696 registered Republicans. It's telling that "the people" for Newby means an actual minority, while the majority are nothing more than a grasping special interest willing to subvert the rule of law, not protect their constitutional rights.

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