Let’s not give up on basic fairness in NC elections

Can an election be “free” but not “fair”? Possibly so, according to N.C Supreme Court Chief Justice Paul Newby.

In the recent trial on gerrymandered districts, lawyers for the plaintiffs were discussing the language of the Pennsylvania Constitution, which guarantees “free and equal” elections. Newby observed that the language of the N.C. Constitution was different: “We have ‘free.’ We don’t have ‘fair.’” The implication being, it seems, that the N.C. Constitution might not necessarily guarantee “fairness” in elections.

Even if we grant that courtroom exchanges are free-ranging and experimental, “fairness” seems like a value that we can all take for granted as a good thing. This month, Newby honored court reporters with these words: “Our court reporters are indispensable for our courts to be open and for the delivery of fair and impartial justice for all.” A quick internet search on “Paul Newby fair” produces a remarkable Newby campaign video that richly repays the 30 seconds required to view it, both for its musical content and its message: “Paul Newby: Justice tough but fair.” Here, “fairness” is a baseline virtue with universal appeal.

What would a “free but not fair” election look like? In fact, it would look like the elections that the Republican-led General Assembly has planned for 2022 — an election where maps foreordain that at least 10, possibly 11, of North Carolina’s representatives to Congress will be Republicans.

Such has been the case for most of the last decade. In 2012, for example, Democrats won 47% of the vote, but ended up with only 23% of the representation (3 of 13 representatives). Republicans got 77% of representation for only 53% of the vote.

Let’s imagine this as a commercial interaction, at what might be called “The Republican Country Store.” In this store, a Democrat would have to pay $2.05 to buy a $1 worth of representation. Republicans could get that same representation for 68 cents! A Republican who spent that same $2.05 would get $3 worth of representation.

Until maps are redrawn, this is the “store” that will be open for business in the fall of 2022.

It could be said that everyone is entirely “free” to spend their money at this store. But Democrats would rightly claim this is massively unfair. And here’s where the “store” metaphor breaks down. When it comes to elections, you can’t take your business elsewhere; there’s only one store.

Republicans typically say Democrats were gerrymandering long before Republicans. It’s true that Democrats gerrymandered when they could, but nowhere near the current level being practiced by the Republican legislature. Maps drawn by Democrats in the ‘90s eventually produced Republican majorities. Democrats may have had their thumb on the scale when drawing districts, but Republicans have a fist on the scale. That significant difference can’t be erased by saying Democrats did it too. The fist is worse than the thumb.

But thumbs and fists are both insults to the principle of fairness in elections, and N.C. citizens would be better off if all appendages were removed from the scales when drawing maps. The phrase “level playing field” captures the general sense of fairness that Americans want in athletic contests and in competitive environments generally. Competition can be hard-hitting, but the playing field should be kept level in the spirit of fairness. Let’s not give up on basic fairness where justice is concerned, or in our shared political life.