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Regort No. 1

REPORT ON

THE GENERAL ASSEMBLY OF NORTH CAROLINA

North Carolina
Legislative Research Commission

 

Raleigh

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MEMORANDUM

TO: James Wallace//
FROM: John Sanders 1:5/
DAffl: September 24, 1981

SUBJECT: The Subdivision of Counties in Drawing Senate and Representative
‘cDistricts for the Election of Members of the General Assembly of

north Carolina

The purpose,of this memorandum is to trace the evolution of the
provisions of the Constitution of North Carolina with respect to the
establishment of districts for the election of the members of the Senate and
HouSe of Representatives with particular to the attention of the question of

whether and when a county may be divided in the formation of such a district.

1979-1935

From 1976 through 1835, the Constitution of North Carolina provided that
the Senate should consist of one member elected from each county and the House
of Commons should consist of two members elected from each county plus members
elected one from each of six (later seven) boroughs. The county was the
election district for members of the Senate and with only one Senator
apportioned to each county, no question of the subdivision of counties in
forming senate districts arose. Constitution of 1776, Sec. 2. The county was
also the district for the election of members of the House of Commons (except
for the borough members) and the Constitution did not authorize the division

of counties in forming such districts. Constitution of 1776, Sec. 3.

 

implementing statute (N.C.G.S. 120—2) to be in violation of the Equal
Protection provisions of the Fourteenth Amendment and therefore null and
void."

Pursuant to the mandate of the federal court, the General Assembly met in
January of 1966 and reapportioned the State Senate and House of
Representatives. The plans it then adopted were subsequently approved by the
three-judge federal court and controlled the elections of 1966, 1968, and
1970. Those plans did not divide counties in the formation of Senate or
Representative districts. No protest was made of that fact at the time, nor

did the court take exception to that fact on its own account.

Constitutional Amendment of 1968

The Legislative Research Commission filed with the General Assembly of
1967 a report dealing with several aspects of the organization and services of
the General Assembly of North Carolina. One recommendation of that report
read as follows:

We recommend the amendment of the State Constitution in order to conform

the provisions of that Constitution pertaining to the apportionment of

the State Legislature to the current practices in that respect.

That brief section of the report of the Legislative Research Commission
noted that the action of the 1966 extra session of the General Assembly in
compliance with the order of the court in BEBE v} Seawell, "made obselete a
portion of the provisions of the North Carolina Constitution with respect to
the apportionment of the House. While the Constitutional provisions governing

apportionment of the Senate are not in conflict with the Federal Constitution,

they are in need of minor clarifying revisionJ' .A bill to carry out the

recommendation of the Legislative Research Commission was submitted to the
General Assembly of 1967, approved by the requisite three-fifths of all the
members of each house, ratified by the voters of the State in November of
1968, and took effect upon the certification of the amendment late in 1968.
The adoption of this amendment made no change in the actual apportionment of
members of the Senate and House of Representatives or in districts from which
members were then elected. The provisions with respect to the establishment
of Senate districts and the apportionment of Senators among those districts
were rewritten in the interest of clarity. The only possibly new provision
was the declaration that "No county shall be divided in the formation of a
Senate District . . . ." Constitution of 1868 as amended in 1868, Art. II,
Sec. 4 (3). This provision appears to reverse in part that provision of the
Constitution as it had read from 1868 to 1968 permitting the division of a
county to which more than two Senators were apportioned into two or more
electoral districts. That authority had never been exercised by the General
Assembly, however, and therefore the inclusion in the 1968 amendment of the
absolute prohibition against the division of counties in the formation of
Senate districts constituted in the minds of the General Assembly and the
voters of the State no change in practice. Nor did it have any racial motive
or effect. There having no been no precedent experience of the use of less
than county-wide election districts for members of the Senate, there is no.
basis for speculation that under such a division of counties, black voters or
any other particular segment of the population would have enjoyed advantages
that they did not enjoy under the prevailing practice of electing Senators

from districts that were at least county-wide in extent.

the political judgment that the prohibition under examination bespeaks, and it

has nothing to do with racial considerations.

Constitution of 1971

 

The North Carolina State Constitution Study Commission drafted a revised
Constitution that was submitted to the General Assembly of 1969, approved by
that session, submitted to the voters in 1970, approved by them at that
election, and took effect on 1 July 1971. That provision made only very minor
changes in the provisions of Article II of the Constitution dealing with the
apportionment of the Senate and House of Representatives. A comparison of the
Constitution as it read following the amendment of 1968 and in the
corresponding provisions of the Constitution of 1971 reveals that the changes
are at most grammatical. The Commission stated that "the provisions governing
apportionment of the two houses, adopted by the people in November, 1968, have
been brought forward in the proposed text with no substantive change." Report

of the North Carolina State Constitution Study Commission, p. 30 (1968). This

 

was notably true with respect to the parallel provisions for the Senate and
House of Representatives stating that "No county shall be divided in the
formation of a Senate [or Representative] District . . ." Thus the
Constitution of 1971 reiterated the policy that had been earlier declared by
the voters in 1968. There is no basis for alleging that the General Assembly
or the voters in 1969-70 had a racial motive in reasserting the immemorial
policy against dividing counties in forming legislative districts.

It is the provisions of the Constitution of 1971 under which the General
Assembly of 1981 acted in devising the districts and apportionment of members
of the Senate and House of Representatives among them, effective for the

elections of 1982 and subsequent years.

 

7. Legislative Representation

The decision of the United States District Court in Drum v. Seawall,
2h9 F. Supp. 877 (M.D.N.C. 1965), and the resulting action of the General
Assembly in reapportioning the House of Representatives to reflect popu-
lation have made obsolete a portion of the provisions of the North Caro—
lina Constitution with respect to apportionment of the House. While the
constitutional provisions governing apportionment of the Senate are not
in conflict with the federal Constitution, they are in need of minor
clarifying revision. It is now clear that no amendment will be added to
the federal Constitution to permit a return to the non-population based
apportionment schemes of the past. Therefore we favor amending the state
Constitution in such way as to make it confonm to current apportionment
practice. A draft of a bill to achieve this result is attached as an
appendix to this Report.

Recommendation
We recommend the amendment of the state Constitution in order
to conform the provisions of that Constitution pertaining to the
apportionment of the state Legislature to the current practices

in that respect.

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