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Constitution of North Carolina

ARTICLE II Legislative

Sec. 5. Representative districts; apportionment of Representatives.

The Representatives shall be elected from districts. The General Assembly, at the first regular session convening after the return of every decennial census of population taken by order of Congress, shall revise the representative districts and the apportionment of Representatives among those districts, subject to the following requirements:

(1) Each Representative shall represent, as nearly as may be, an equal number of inhabitants, the number of inhabitants that each Representative represents being determined for this purpose by dividing the population of the district that he represents by the number of Representatives apportioned to that district;

(2) Each representative district shall at all times consist of contiguous territory;

(3) No county shall be divided in the formation of a representative district;

(4) When established, the representative districts and the apportionment of Representatives shall remain unaltered until the return of another decennial census of population taken by order of Congress.

Cross References. - As to House apportionment, see G.S. § 120-2.

Editor's Note. - The United States Department of Justice, by letter dated July 12, 2002, withdrew its November 30, 1981 objection interposed under Section 5 of the Voting Rights Act of 1965 to the 1968 amendment (Session Laws 1967, c. 640) of this section. That amendment, approved by the voters, added subsection (3), which provides that no county shall be divided in the formation of a Representative district.

History Note. - The provisions of this section are similar to those of Art. II, § 6, Const. 1868, as amended in 1968.

Legal Periodicals. - For article, "Political Gerrymandering After Davis v. Bandemer," see 9 Campbell L. Rev. 207 (1987).

For article, "Racial Gerrymandering and the Voting Rights Act in North Carolina," see 9 Campbell L. Rev. 255 (1987).

For article, "Using the Voting Rights Act to Discriminate: North Carolina's Use of Racial Gerrymanders, Two Racial Quotas, Safe harbors, Shields, and Inoculations to Undermine Multiracial Coalitions and Black Political Power," see 51 Wake Forest L. Rev. 421 (2016).

CASE NOTES

The 1968 amendments to the Constitution of North Carolina that prohibited the splitting of counties in apportioning General Assembly Senate and House districts are not severable; furthermore, these amendments have no force or effect, statewide, for purposes of application to the 60 counties not covered by Section 5 of the Voting Rights Act of 1965, once the Attorney General of the United States interposed objection under Section 5 of the Voting Rights Act. Cavanagh v. Brock, 577 F. Supp. 176 (E.D.N.C. 1983).

Obligation of the State is to apportion as nearly equally as possible on a population based representation, and even minor deviations must be free from any taint of arbitrariness or discrimination. Drum v. Seawell, 249 F. Supp. 877 (M.D.N.C. 1965), aff'd, 383 U.S. 831, 86 S. Ct. 1237, 16 L. Ed. 2d 298 (1966), decided under Art. II, §§ 5 and 6 Const. 1868, as amended.

Statistical Tests Used in Evaluating State's Efforts at Equal Apportionment. - The Supreme Court, while rejecting a rigid application of a mathematical formula, has laid down two statistical tests in evaluating the State's "honest and good faith effort to construct districts as nearly of equal population as is practicable." First, the minimum controlling percentage, i.e., the percentage of the State's population which resides in the least populous districts which can elect a majority of each House; and second, the population variance ratio, i.e., the ratio between the most populous district and the least populous district of the State. Drum v. Seawell, 249 F. Supp. 877 (M.D.N.C. 1965), aff'd, 383 U.S. 831, 86 S. Ct. 1237, 16 L. Ed. 2d 298 (1966), decided under Art. II, §§ 5 and 6 Const. 1868, as amended.

Guide Lines to Assist Lower Courts in Implementing Constitutional Guarantees of Suffrage. - The equal protection clause requires substantially equal representation for all citizens in a state in each of the two houses of a state bicameral legislature. This right may not be debased by weighing votes differently according to where a citizen happens to reside. Representation in state legislative bodies must be, as nearly as practicable, apportioned on districts of equal population, though mechanical exactness is not required. Political subdivisions may be recognized, but not at the cost of substantial equality among the several districts. Considerations of history, economic or other group interests or area alone do not justify substantial deviations from the equal population concept. Nor will the presence of large numbers of military and military related personnel justify the underrepresentation of an area. Discrimination against a class of individuals, merely because of the nature of their employment, without more being shown, is constitutionally impermissible. Drum v. Seawell, 249 F. Supp. 877 (M.D.N.C. 1965), aff'd, 383 U.S. 831, 86 S. Ct. 1237, 16 L. Ed. 2d 298 (1966), decided under Art. II, §§ 5 and 6 Const. 1868, as amended.

Whole County Provisions. - The People's insertion of a whole county requirement within their Constitution was not an historical accident. Rather, this provision was inserted by the People as an objective limitation upon the authority of incumbent legislators to redistrict and reapportion in a manner inconsistent with the importance that North Carolinians traditionally have placed upon their respective county units in terms of their relationship to State government. Stephenson v. Bartlett, 355 N.C. 354, 562 S.E.2d 377 (2002).

The whole county provisions of N.C. Const., Art. II, §§ 3(3) and 5(3) are interpreted consistent with federal law and reconciled with equal protection requirements under the state Constitution by requiring the formation of single-member districts in North Carolina legislative redistricting plans. The boundaries of such single-member districts, however, may not cross county lines except as outlined in the court's opinion. Stephenson v. Bartlett, 355 N.C. 354, 562 S.E.2d 377 (2002).

Redistricting plan violated the Whole County Provision in N.C. Const., Art. II, § 3(3) and N.C. Const., Art. II, § 5(3) where one of the counties in question lacked sufficient population to support a non-Voting Rights Act house district; thus, a voting district that included that county had to add population across a county line, but only to the extent necessary to comply with the one-person, one vote standard. Pender County v. Bartlett, 361 N.C. 491, 649 S.E.2d 364 (2007), aff'd, - U.S. - , 129 S. Ct. 1231, 173 L. Ed. 2d 173 (2009).

Single and Multi-Member Voting Districts. - Use of both single-member and multi-member districts within the same redistricting plan violates the equal protection clause of the state Constitution unless it is established that inclusion of multi-member districts advances a compelling state interest; hence the trial court would be directed on remand of action challenging 2001 legislative redistricting plans to afford the opportunity to establish, at an evidentiary hearing, that the use of such districts advances a compelling state interest within the context of a specific, proposed remedial plan. Stephenson v. Bartlett, 355 N.C. 354, 562 S.E.2d 377 (2002).

While instructive as to how multi-member districts may be used compatibly with "one-person, one-vote" principles, N.C. Const., Art. II, §§ 3(3) and 5(3) are not affirmative constitutional mandates and do not authorize use of both single-member and multi-member districts in a manner violative of the fundamental right of each North Carolinian to substantially equal voting power. Stephenson v. Bartlett, 355 N.C. 354, 562 S.E.2d 377 (2002).

Redistricting. - Redistricting plans did not violate the Equal Protection Clause as they did not impermissibly classify individuals based upon their race because, as to the 26 districts drawn to comply with the federal Voting Rights Act of 1965, although the three-judge panel erred when it applied strict scrutiny prematurely, there was a compelling state interest in creating districts that would avoid liability under sections 2 and 5 of the Voting Rights Act; and because, as to the remaining challenged districts, the predominant factors in their creation were the traditional and permissible redistricting principles encompassed within the mandatory framework as established by precedents of the United States Supreme Court and the North Carolina Supreme Court. Dickson v. Rucho, 368 N.C. 481, 781 S.E.2d 404 (2015).

2001 Legislative Redistricting Plans. - Because the General Assembly enacted its 2001 legislative redistricting plans (Session Laws § 2001-458 and § 2001-459) in violation of the whole county provisions of N.C. Const., Art. II, §§ 3(3) and 5(3), these plans are unconstitutional and are therefore void. Stephenson v. Bartlett, 355 N.C. 354, 562 S.E.2d 377 (2002).

2002 Legislative Redistricting Plans. - The North Carolina legislature's 2002 revised redistricting plans were constitutionally deficient in numerous instances; the plans failed to attain strict compliance with the legal requirements set fort in Stephenson I and were unconstitutional. Stephenson v. Bartlett, 357 N.C. 301, 582 S.E.2d 247 (2003).

Cited in State ex rel. Martin v. Preston, 325 N.C. 438, 385 S.E.2d 473 (1989); Stephenson v. Bartlett, 358 N.C. 219, 595 S.E.2d 112 (2004); Blankenship v. Bartlett, 184 N.C. App. 327, 646 S.E.2d 584 (2007); Dickson v. Rucho, 366 N.C. 332, 737 S.E.2d 362 (2013).

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