Blankenship v. Bartlett

• Decision Date: 28 August 2009
• Docket Number: No. 455PA06-2.,455PA06-2.
• Citation: 363 N.C. 518,681 S.E.2d 759
• Parties: Brian L. BLANKENSHIP, Thomas J. Dimmock, and Frank D. Johnson v. Gary BARTLETT, as Executive Director of the North Carolina State Board of Elections; Roy Cooper, as Attorney General of the State of North Carolina; and North Carolina State Board of Elections.
• Court: North Carolina Supreme Court

681 S.E.2d 759

363 N.C. 518

Brian L. BLANKENSHIP, Thomas J. Dimmock, and Frank D. Johnson v. Gary BARTLETT, as Executive Director of the North Carolina State Board of Elections; Roy Cooper, as Attorney General of the State of North Carolina; and North Carolina State Board of Elections.

No. 455PA06-2.

Supreme Court of North Carolina.

August 28, 2009.

On discretionary review pursuant to N.C.G.S. § 7A-31 of a unanimous decision of the Court of Appeals, 184 N.C.App. 327, 646 S.E.2d 584 (2007), reversing and vacating a judgment and order entered on 8 February 2006 by Judge Donald L. Smith in Superior Court, Wake County. Heard in the Supreme Court 23 February 2009.

Akins/Hunt, P.C., by Donald G. Hunt, Jr., Fuquay-Varina, for plaintiff-appellants.

Roy Cooper, Attorney General, by Alexander McC. Peters, Special Deputy Attorney General, for defendant-appellees.

BRADY, Justice.

Wake County voters are divided into four districts for purposes of exercising their constitutional right to elect superior court judges. However, the General Assembly gives residents in Superior Court District 10C approximately one-fifth, or only 20%, of the voting power of residents in Superior Court District 10A. Likewise, residents of Superior Court Districts 10B and 10D have approximately one-fourth, or 25% of the voting power of residents in Superior Court District 10A.

In this case we consider whether the Equal Protection Clause of the North Carolina Constitution applies to the General Assembly's creation of an additional judgeship in Superior Court District 10A. We determine that the Equal Protection Clause applies to the legislature's actions and accordingly reverse the decision of the Court of Appeals and remand the case for further proceedings not inconsistent with this opinion.

FACTUAL AND PROCEDURAL BACKGROUND

Both parties stipulated before the trial court as to the factual basis of this matter. According to the 2000 United States Census, Superior Court District 10A has a total population of 64,398 residents; District 10B has a total of 281,493 residents; District 10C has a total of 158,812 residents; and District 10D has a total of 123,143 residents. In 1987, pursuant to the then current version of N.C.G.S. § 7A-41, Districts 10A, 10C, and 10D each elected one superior court judge, while District 10B elected two superior court judges. However, in 1993 the General Assembly amended N.C.G.S. § 7A-41 to provide for the election of another superior court judge from District 10A, establishing the current districts as follows:

                Superior Number Residents
                Court of Superior per Superior
                District Residents Court Judges Court Judge
                --------------------------------------------------
                10A          64,398          2          32,199
                --------------------------------------------------
                10B          281,493         2         140,747
                --------------------------------------------------
                10C          158,812         1         158,812
                --------------------------------------------------
                10D          123,143         1         123,143
                --------------------------------------------------
                

Plaintiffs Brian L. Blankenship and Thomas J. Dimmock are licensed attorneys who are qualified to run for the office of superior court judge in their respective districts, 10B and 10C. Plaintiff Frank D. Johnson is a citizen, taxpayer, and registered voter who resides in Superior Court District 10D. On 5 December 2005, by the filing of a complaint and the issuance of a civil summons, plaintiffs commenced suit against the North Carolina State Board of Elections; Gary Bartlett, in his official capacity as Executive Director of the State Board of Elections; and Roy Cooper, in his official capacity as Attorney General of North Carolina. In their complaint, plaintiffs allege that the 1993 amendment to N.C.G.S. § 7A-41 unconstitutionally created an additional superior court judgeship in Wake County's District 10A. On 9 December 2005, then Chief Justice I. Beverly Lake, Jr. designated this case as "exceptional" under Rule 2.1 of the General Rules of Practice and assigned an emergency superior court judge, the Honorable Donald L. Smith, to hear the matter.

The trial court expedited the discovery and motions process and on 8 February 2006, following a two day bench trial, entered a judgment and order in favor of plaintiffs. The trial court concluded that the General Assembly acted arbitrarily and capriciously in creating "the judicial districts for superior court judges assigned to Wake County" and that "[t]he current districting plan for the election of superior court judges allocated to Wake County, North Carolina creates unequal weighing of votes." Based on the factual findings, the trial court concluded as a matter of law that N.C.G.S. § 7A-41 "as it applies to Wake County, North Carolina, is unconstitutional" because it "denies plaintiffs equal protection of the law under N.C. Const. Article I, § 16." The trial court stayed its order and judgment pending appeal.

Defendants appealed the trial court's judgment and order to the Court of Appeals, which held that there is no requirement of population proportionality in state judicial elections, that the trial court failed to consider evidence properly submitted by defendants, and that the trial court erred in finding that the General Assembly acted arbitrarily and capriciously in establishing the superior court districts at issue. This Court allowed plaintiffs' petition for discretionary review on 9 October 2008.

ANALYSIS

Plaintiffs' Equal Protection Challenge

We must first determine whether the Equal Protection Clause of Article I, Section 19 of the North Carolina Constitution requires any degree of population proportionality in the districts drawn for the election of superior court judges. We conclude that it does.

The Equal Protection Clause of Article I, Section 19 of the State Constitution "prohibits the State from denying any person the equal protection of the laws." Stephenson v. Bartlett, 355 N.C. 354, 377, 562 S.E.2d 377, 393 (2002). Equal protection "requires that all persons similarly situated be treated alike." Richardson v. N.C. Dep't of Corr., 345 N.C. 128, 134, 478 S.E.2d 501, 505 (1996) (citing Plyler v. Doe, 457 U.S. 202, 216, 102 S.Ct. 2382, 72 L.Ed.2d 786 (1982)). The Equal Protection Clause necessarily operates as a restraint on certain activities of the State that either create classifications of persons or interfere with a legally recognized right. See White v. Pate, 308 N.C. 759, 766-67, 304 S.E.2d 199, 204 (1983) (detailing the levels of scrutiny applied in equal protection analysis depending upon the type of classification or the right allegedly infringed). This Court's analysis of the State Constitution's Equal Protection Clause generally follows the analysis of the Supreme Court of the United States in interpreting the corresponding federal clause. "However, in the construction of the provision of the State Constitution, the meaning given by the Supreme Court of the United States to even an identical term in the Constitution of the United States is, though highly persuasive, not binding upon this Court." Bulova Watch Co. v. Brand Distribs. of N. Wilkesboro, Inc., 285 N.C. 467, 474, 206 S.E.2d 141, 146 (1974) (citing State v. Barnes, 264 N.C. 517, 520, 142 S.E.2d 344, 346 (1965)).

The right to vote is one of the most cherished rights in our system of government, enshrined in both our Federal and State Constitutions. See U.S. Const. amend. XV; N.C. Const. art. I, §§ 9, 10, 11. "No right is more precious in a free country than that of having a voice in the election of those who make the laws under which, as good citizens, we must live." Wesberry v. Sanders, 376 U.S. 1, 17, 84 S.Ct. 526, 11 L.Ed.2d 481 (1964). The right to vote on equal terms in representative elections—a one-person one-vote standard—is a fundamental right. Northampton Cty. Drainage Dist. No. One v. Bailey, 326 N.C. 742, 747, 392 S.E.2d 352, 356 (1990).

Although federal courts have articulated that the "one-person, one-vote" standard is inapplicable to state judicial elections, there is considerable tension in the jurisprudence, as clearly illustrated by Chisom v. Roemer, 501 U.S. 380, 111 S.Ct. 2354, 115 L.Ed.2d 348 (1991). Chisom first reaffirms that the one-person, one-vote constitutional standard used in legislative and executive branch elections does not apply to judicial elections. Id. at 402, 111 S.Ct. 2354 ("[W]e have held the one-person, one-vote rule inapplicable to judicial elections ...." (citing Wells v. Edwards, 409 U.S. 1095, 93 S.Ct. 904, 34 L.Ed.2d 679 (1973))). When the Supreme Court first held the rule inapplicable, it summarily affirmed a district court decision based on the rationale that "`[j]udges do not represent people, they serve people.'" Wells v. Edwards, 347 F.Supp. 453, 455 (M.D.La.1972) (quoting Buchanan v. Rhodes, 249 F.Supp. 860, 865 (N.D.Ohio), appeal dismissed, 385 U.S. 3, 87 S.Ct. 33, 17 L.Ed.2d 3 (1966), judgment vacated per curiam, 400 F.2d 882 (6th Cir. 1968)), aff'd mem., 409 U.S. 1095, 93 S.Ct. 904, 34 L.Ed.2d 679 (1973). Yet, even in Chisom, the Supreme Court observed that judges were "representatives" for purposes of the Federal Voting Rights Act. 501 U.S. at 401, 111 S.Ct. 2354 ("[I]t seems both reasonable and realistic to characterize the winners [of judicial elections] as representatives of that [judicial] district."). Moreover, in Republican Party of Minnesota v. White, the Supreme Court rejected the notion that elected members of the judiciary are separate "from the enterprise of `representative government.'" 536 U.S. 765, 784, 122 S.Ct. 2528, 153 L.Ed.2d 694 (2002). Thus, the Supreme Court has indicated both that judges are representatives and that they do not represent people.

The presence of this seeming contradiction is not surprising. Judges are "often called upon to disregard, or even to defy, popular sentiment," creating a "fundamental tension between the ideal character of...