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A group of legal experts says North Carolina is using a “fraudulent” document from 1818 to make its argument in a gerrymandering case set to be heard by the U.S. Supreme Court this fall.
A Politico op-ed written by Ethan Herenstin, counsel for the Brennan Center for Justice at New York University Law, and Brian Palmer, editorial director for the Brennan Center, points out North Carolina legislators seeking to uphold their congressional redistricting plan rely partially on a bogus constitutional plan written by Charles Pinckney of South Carolina.
“It’s an embarrassing error – and it underscores how flimsy their case really is,” the authors write.
The North Carolina Supreme Court found the Legislature’s redistricting plan to be illegal – mainly because it was designed to favor Republicans – and put together its own proposal for the 10-year mapping of congressional districts.
The Legislature and Republican House Speaker Tim Moore are challenging that decision in a case that also uses a legal outlier called the independent legislatures doctrine, which contends state courts don’t have the authority to overrule legislatures on redistricting and election cases.
The Brennan Center authors’ op-ed notes that Pinckney, whose views were largely rejected at the 1787 Constitutional Convention, presented a document he claimed represented his original plan in 1818 when the federal government was putting together a publication on the convention. The main problem was that it was considered to be a fake, according to the Brennan Center authors.
“We’ll never know for certain why Pinckney concocted this fraud. Many scholars assume he was trying to sell himself to history as the true father of the Constitution,” the authors wrote.
James Madison, among the Constitution’s primary writers, was said to be “perplexed” because he was certain Pinckney’s latter document was “not the draft originally presented to the convention.” Madison contended it was too similar to the final U.S. Constitution, which went through months of debate, and that it contradicted the views of Pinckney himself, according to the op-ed.
Notably, the South Carolinian’s 1818 document called for direct representation of federal representatives, clashing with Pinckney’s widely-known 1780s opinion that state legislatures should select members of Congress, the writers said.
Madison refuted Pinckney’s document in writing and included that with the rest of his convention notes.
“It was the genteel, 19th-century equivalent of calling BS,” the Brennan Center authors wrote.
David Thompson, a Washington, D.C. attorney with Cooper & Kirk law firm representing the North Carolina House Speaker in the case, declined comment on the Politico op-ed.
Yet the brief he filed with the court does cite Pinckney’s 1818 document – at least twice – in arguing that the North Carolina Supreme Court didn’t have the authority to override the Legislature.
In its question presented to the court, Thompson’s brief asks the justices to decide whether a state’s judicial branch may “nullify” regulations set by the legislature governing elections for senators and representatives and replace them with with its own plan “based on vague state constitutional provisions purportedly vesting the state judiciary with power to prescribe whatever rules it deems appropriate to ensure a ‘fair’ or ‘free’ election.”
The brief filed in support of the House Speaker’s argument says state court decisions “unconstitutionally usurped” the legislature’s authority to regulate congressional elections.
The Supreme Court appointed three special masters who hired political scientists and mathematicians to evaluate a “remedial” plan adopted by the legislature. The state pointed out this “cadre of extra-constitutional officers” rejected the General Assembly’s second plan and crafted its own.
Thompson’s brief concludes that the U.S. Supreme Court should reverse the decisions of the North Carolina Supreme Court and state trial court invalidating the General Assembly’s congressional map and replacing it with their own “judicially designed map.”
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