The Other Nuclear Option
The 2016 Elections made history, but not because of Donald Trump. It was historic because it was the first time in U.S. history that a Federal Court stopped an election that was underway, threw out validly cast votes, reset the rules for the election, and forced the state to hold new elections.
The 4th Circuit Court of Appeals made an unprecedented move in the case of Harris v McCrory (1:13-CV-00949), a decision that will negatively impact our Republic and have long-lasting implications for generations to come.
The case has some pundits discussing the ‘Other Nuclear Option’, which is the potential for impeachment of at least two Federal Judges Chief Judge Roger L. Gregory and Circuit Judge Max Cogburn of the 4th Circuit Court of Appeals for possible malfeasance- not because of the Racial Gerrymander ruling, but because they killed an active election.
The Original Nuclear Option
In November 2013, Federal Court packing by U.S. Senate Democrats led by Harry Reid became known as “The Nuclear Option” whereby it removed all barriers from the Majority party to rubber-stamp Federal Judicial appointees through the U.S. Senate confirmation process.
The much opined procedural move was decried by both Democrats and Republicans because they knew the proverbial ‘Genie’ could never go back in the bottle. That is to say, if Democrats could do it while they were a majority, so could Republicans when they lead the Senate.
President Obama has now packed the U.S. Federal Courts with more than one-third of all Federal Judges in the United States over his two terms, more than any other President in U.S. History. Federal Judges enjoy a lifetime appointment and cannot be removed but for rare exceptions.
Under the Nuclear Option at least 330 Justices have been rammed through the Senate using Reed and Obama’s procedural scheme; crushing the balance of power where currently 9 of 13 Federal Appeals Courts (roughly 70% of the Federal Judiciary) are now controlled by an overwhelming majority of Democrat appointees.
The History That NC Democrats Want To Ignore
North Carolina Democratic Governors, from Zebulon Vance in 1877 to Bev Perdue in 2009, found that gerrymandering was an acceptable practice. The last Governor that opposed such action was Republican Governor Holden in 1871.
Holden would later be impeached for squashing a Ku Klux Klan rebellion after they murdered Republican Senator John W. Stevens for his support of the black community.
Under Republican control from 1868 to 1899, a total of 127 Black Republicans served in the General Assembly (101 in the House and 26 in the Senate) plus one Black Representative that served in NC’s Second U.S. Congressional District.
In 1900, the first Democrat led post-reconstruction redistricting plan began. It was a racial gerrymander that is unrivaled in modern America. Since then, black and minority leadership in the NC General Assembly has failed to recover from the overt segregation of the legislature. In fact, there has never been more black leaders in the NC General Assembly at any one time than under those early years of post-civil war Republican control.
The Story No One Is Telling You
When Republicans gained control over the state legislature in 2010, it was an earthshaking moment. For many native North Carolinians, this was an unimaginable scenario because Democrats had been in control for at least 4 generations.
It had been a century since state Republicans had a chance to influence the political districts on any significant level, despite numerous Republican attempts to quash racial gerrymandering in the Supreme Court. Previous Democrat controlled legislatures forced the minority community to be happy with scraps given to them. Republican calls for a bipartisan process were repeatedly ignored and denigrated by Democratic Party members as late as 1995.
The much maligned 1st and 12th Congressional districts were originally created by Democrats Dan Blue, Jr., the state’s first black Speaker of the House, Democratic Senator and President Pro Tem Henson Barnes.
(Update- Jan 12, 2017) At the time and deliberation of original 1991 House Bill 3, “An Act to Divide North Carolina Into Twelve Districts,” Jim Hunt was not the sitting governor but was active in Democratic party politics and had influence on the plan. Hunt had declared his candidacy in June of that same year. Despite him being the first NC Governor to have veto powers in 1996, the Governor has no authority to veto redistricting maps produced by the legislature. Hunt vigorously defended the maps when he won his third term as Governor in 1992.
Other important support came from North Carolina’s newest Governor, Roy Cooper, who was at the time a state Senator.
In the post Jim Crow era, these men set the bar pretty low. Repeated attempts by Republicans to prevent distribution of use of race as a predominant factor in creating the maps was swatted down. This prompted all four NC Republican members of Congress to write a letter, appealing to the Department of Justice for intervention.
The original gerrymandered map from 1991 was first challenged in court by none other than Republican ”˜boogeyman’ Art Pope for its racial gerrymandering see Pope v. Blue, 809 F. Supp. 392 (W.D. N.C. 1992), aff’d mem. 113 S. Ct. 30 (1992).
Pope, accompanied by the Republican Party and nine Democrats, lost the case at every level through the Court of Appeals. The loss came, in part, because the plaintiffs were bipartisan (reference Pope v. Blue– Footnote 3).
Later, in the 1993 case of Shaw v Hunt, lawyers for Governor Jim Hunt defended the creation of the 12th district by saying that the district was specifically drawn for racial purposes to comply with sections 5 & 2 of the voting rights act. The Supreme Court agreed, interpreting Section 5 of the Voting Rights Act to demand majority minority districts within the states.
The Supreme Court went further to mandate that not just one, but rather, two districts be drawn to favor minorities. Since each Congressional district represented about 8% of the population they argued that since NC’s minority population at the time was 22%, more than double the 8% apportioned by the 12th district.
Since the map’s inception, the Supreme Court has deliberated on NC’s 12th district more than any other in the nation. Until 2016, the controversial districts had only slight modifications since their inception. Governor Jim Hunt defended it two more times at the Supreme court in Cromartie v Hunt (1) and (2).
Also noteworthy is that after Judge Gregory’s ruling in 2016, Democrats in the NC Legislature refused to offer any alternative map, including Dan Blue, a chief architect in the original maps. In other words, they chose not to provide a solution, but instead opted for political grandstanding by playing the victim card.
Obama appointed two of the justices involved in the controversial order of Harris v McCrory; 4th Circuit Court of Appeals Chief Justice Roger L. Gregory and Circuit Judge Max O. Cogburn. A third Judge, District Judge William L. Osteen, Jr. whom was appointed by George W. Bush, agreed in part and dissented in part on the case.
In his order, Chief Judge Roger L. Gregory declared that North Carolina’s 1st and 12th Congressional Districts were unconstitutional because they believed that race was a predominate factor in how the state apportioned it representatives. The legislature continues to argue that was not the case.
Gregory’s ruling on racial bias, in and of itself, is not controversial. NC Republicans argued the very same point for almost a decade, but it was repeatedly struck down as unfounded because the voting rights act mandated certain provisions against a select few states. What changed was that the Supreme Court Ruling nullified Section 5 “pre-Clearance” provisions that mandated the US Department of Justice to approve redistricting maps for select States based upon a specific set of demographics. The case is known as Shelby v Holder.
But, what followed the finding by Judge Gregory is unprecedented in U.S history. It is this effort that should “shock the conscience” of America.
Judge Gregory’s order for the majority (2 to 1) mandated an immediate reset of the political chessboard more than two weeks after voting had already begun.
The Judge ordered the districts to be immediately be redrawn by the legislature and a complete re-write of the election be conducted.
Until the case of Harris v McCrory, there had never been a U.S. election where valid votes that were cast were ordered not to be counted.
This action set a new, unprecedented and dangerous legal standard for our nation. What can only be defined as judicial activism should give all Americans great concern. Democrats and Republicans will come to regret this decision for generations.
This paradigm shift now allows members of the Judicial Branch to stop an election when optimal conditions for political gain are not in favor of one party, ethnicity, sexual orientation, religion, etc. This is a Constitutional crisis not because of gerrymander, but because the Judiciary discarded long-standing precedent and nullified votes.
Throwing away the votes of an entire electorate could be the most egregious case of voter disenfranchisement in the history of our nation, if only for the fact that every citizen, ethnicity, race religion, and gender was denied suffrage.
The Judiciary has also failed to discipline itself. These actions were not based on precedent, but an arbitrary standard imposed outside of the spirit and scope of the constitution. They use outcome-based reasoning to justify their actions which is poison to the rule of law.
Who Are They?
Judge Gregory was originally a recess appointment by President Bill Clinton as he was leaving office in December 2000. He was eventually confirmed by the Senate in 2001 as a George W. Bush nominee. In 2016, after his ruling on the Harris v McCrory case as a Circuit Judge, President Obama quickly promoted him to the Chief Judge of the 4th Circuit on July 8th, 2016 as part of the Obama-Reed court packing scheme.
In Justice Gregory’s memorandum opinion on Harris, he disregarded a long-standing precedent known as the Purcell Principle; a realization that the Judiciary’s actions in the proximity of, or just prior to an election could taint or influence the outcome, thereby becoming a political partisan act. No Judge in American History has ever been so bold, so activist, that he mandated an election be thrown-out; an act which could arguably be a violation of the Constitutional division of powers.
Circuit Court Judge Max O. Cogburn, well know for his progressive activism in the case against North Carolina’s marriage law, was also appointed by President Obama in the Democrat’s court packing maneuver.
As a North Carolina attorney from Asheville, he was supported by Democratic Senator Kay Hagan before her ouster. Cogburn is the Chair of the LGBTQ+ College Democrats of America, and was the first Federal Judge to strike down NC’s constitutional marriage amendment.
In his opinion on Harris v. McCrory, Cogburn proceeded to disparage the intelligence of voters by wondering if they even knew who their representative was:
“It is a district so contorted and contrived that the United States Courthouse in Charlotte, where this concurrence was written, is five blocks within its boundary, and the United States Courthouse in Greensboro, where the trial was held, is five blocks outside the same district, despite being more than 90 miles apart and located in separate federal judicial districts. How a voter can know who their representative is or how a representative can meet with those pocketed voters is beyond comprehension.” – Judge Max Cogburn
Lawyers, like Marc Elias who is well known as the “go-to lawyer” for progressive causes, were paid for by George Soros to oppose the district maps.
Elias would later spike the football on the Judges order disregarding precedent of interfering with an active election:
Anyone who predicted that SCOTUS would rely upon Purcell to grant GOP stay motion in North Carolina was wrong. Glad I didn't. Cc @rickhasen
— Marc E. Elias (@marceelias) February 20, 2016
In his book, Men in Black- How the Supreme Court is Destroying America, Mark Levin, a Constitutional Scholar, Lawyer, and Conservative Pundit argues, “When the judiciary utilizes outcome-determinative reasoning, rather than adhering to the Constitution, the result can be catastrophic. The extreme left has scored few victories at the ballot box. They must rely on the tyranny of an activist judiciary to advance their policy agenda.”
Succinctly, there is no constitutional authority, power , or precedent for the Federal Judiciary to stop an election that is in progress. Article I, Section 4, Clause 1 of the U.S. Constitution says:
“The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing [sic] Senators.”
The Path Forward
In total, 15 federal judges have been impeached since the founding of this nation. Some were for bribery; others for assault, two Judges were impeached for favoritism, another for improper business relationships.
History will reflect on Judge Gregory’s order, but how the story will be told? Will history reflect on the activism of a rogue partisan Judge who failed the limits of a Democratic Republic, or will he be a noble champion of equality? Will their actions be recorded as Judicial Tyranny or the triumph of the rule of law?
The Supreme Court Has Already Heard Opening arguments for this case
At the time of this article, Congress awaits the official nomination of President Elect Donald Trump’s Supreme Court pick. Either way, Congress has the power to impeach federal Judges and invoke the ‘Other Nuclear Option.’ The question is, will they use it?
Notes from the Author
It is this author’s opinion that there is no justification for racial discrimination in America, including racial gerrymander. No government can legislate it nor find a way to make it acceptable. It is counter to our American values that all men are created equal, a right that is bestowed by our Creator.
As a campaign manager for a 2016-17 U.S. congressional race in North Carolina, I was effected by this ruling. The decision to throw out votes after the election was underway was disheartening and unbelievable. After much research and consultation with constitutional scholars and lawyers in several states, none of them could find a case where such aggressive and bold action had ever taken place nor any historical reference where the court took such bold action in an active election.
I do not pretend to practice law nor understand all the intricacies of all precedents in elections law. However, I am convinced that this is fundamentally wrong and inconsistent with the spirit of our founding principles.
Other Historical References:
1990 on Democrats national fight for control in redistricting (New York Times)
Horowitz: Strip The Courts of Power Over Redistricting (Conservative Review)
The Federal Courts Screw Over Conservatives Again (Conservative Review)
(Update- Jan 12, 2017)- North Carolina Governors did not obtain veto power until 1997 and have never had veto authority on redistricting legislation (as per the US Constitution). Original wording stated: “The much maligned 1st and 12th Congressional districts were originally created by Democrats Dan Blue, Jr., the state’s first black Speaker of the House, Democratic Senator and President Pro Tem Henson Barnes, and signed into law by Democratic Governor Jim Hunt” and has been corrected to reflect the Governor’s restricted powers.