Category Archives: Raleigh Report

Balance of Power: Judicial Checks on Political Power in North Carolina

by John Ager, District 115 North Carolina House of Representatives

In designing the American Constitution, our founding fathers carefully avoided setting up any political body that could exercise unchecked power. The Executive branch (the president and governors), the legislative branch (House and Senate), and the Judicial branch (courts) are set up to keep each other in political balance, and to prevent the tyranny they had despised at the hands of King George III. The relationship between these institutions can be messy and contentious. Our constitution also created a messy relationship between the federal government and the state governments.

Of late, federal court cases have overthrown a series of laws passed by the North Carolina General Assembly, especially laws that concern election issues. Last February, a federal court ruled that the congressional districts (electing members of the US House of Representatives) were unconstitutional because they relied primarily on race in determining political boundaries. Just recently, the court ruled with similar logic regarding the districts drawn for our state legislature in Raleigh. The courts also ruled that the 2013 NC Election Law was unconstitutional.

Political districts must be drawn every 10 years. That is the reason we have a census. It is the responsibility of state legislatures to draw those lines, and the majority party in power usually tries to “game the system” to protect their power (gerrymandering). Some states now try to remove politics in this process by establishing Districting Commissions, which would at least have the benefit of saving litigation costs, and more importantly provide an election system with more integrity. I support this reform, as do many others in both parties. The North Carolina districts drawn after the 2010 elections were considered some of the most gerrymandered in the US. The strategy was to pack African-American voters into urban districts, so that they could be removed from voter rolls in suburban and rural areas.

In February, the courts ruled against the US congressional districts, causing a last-minute re-drawing of the maps and delaying the vote for the US Congress until June 7. Just recently, the NC House and Senate districts met the same judicial fate for essentially the same reasons. However, this ruling came too late to re-draw the maps, and the November elections will proceed unchanged. In both cases, the court found that race was the primary factor in how the districts were drawn.

Since 1965, Southern states, because of their history of African-American voting disenfranchisement, have had to submit voting laws to the courts for approval. In a landmark Supreme Court Case on June 25, 2013, this process was ended. On the next day, the NC General Assembly pushed forward a comprehensive overhaul of state voting laws. It included a Voter ID requirement, a shortening of early voting days, the end of same-day registration during early voting and a prohibition of out-of-precinct voting on election day. The question before the court was the motive of the General Assembly: prevention of voter fraud or vote suppression of African-Americans?

The courts found that leaders of the General Assembly specifically researched the voting habits of African-American voters and tailored the law accordingly. For that reason, it was struck down. The court concluded, “Because of race, the legislature enacted one of the largest restrictions of the franchise in modern North Carolina history.” Governor McCrory has asked the Supreme Court to “stay” this decision for the November elections. Also, as Election Boards organize early-voting sites, county-by-county battles are now taking place. These sites can be made less convenient for certain voters, like college students, to sway turnout.

One other bill, HB 1021, has come up already in this campaign, and it sheds further light on the role of the courts in providing judicial review of legislation. HB 1021 started its journey in the House as an effort to set up an Innocence Commission to determine if there were inmates serving time when new evidence (DNA or other) might prove their innocence. I voted for that bill. When the bill went to the Senate, the contents were gutted and replaced with legislation involving sex offender constraints. Since this bill already had passed the House, even with completely different intentions, it came back to the House for an up or down “concurrence’”vote. And it came back near the end of the session. I find these legislative maneuvers to be harmful to the process of good governance. I asked my lawyer friends how I should vote, because I knew that my vote on this issue could provide great fodder for campaign attacks. They explained to me that the current NC law had been struck down by the courts, and that this bill was an amateurish effort to address the complaints of the court. Furthermore, they said it was really a bill to help Sen. Newton in his election for Attorney General and would also be ruled unconstitutional in the courts. With this advice, I voted not to concur. Our legislative process ought to be held to a higher standard.

While our balance of powers system of government can be slow and cumbersome, it does provide relief from political overreach and bad legislation. Politics is a “contact sport,” and the courts often serve as referees.

The examples that I have given in this article are all high-profile North Carolina laws that have been struck down in the courts, despite the state spending over $9 million in their defense.

As always, I am honored to be your representative in Raleigh.

John Ager’s Contact:

NC House of Representatives

16 West Jones St, Room 1004,

Raleigh NC 27601-1096 or

628-2616 / 713-6450 cell