Link to original WordPerfect file
Link to PDF file
How to access the above link?
Return to nccourts.org
Return to the Opinions Page
All opinions are subject to modification and technical correction prior to official publication in the North Carolina Reports and North Carolina Court of Appeals Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the North Carolina Reports and North Carolina Court of Appeals Reports, the latest print version is to be considered authoritative.
BRIAN L. BLANKENSHIP, THOMAS J. DIMMOCK, and FRANK D. JOHNSON,
Plaintiffs, v. GARY BARTLETT, as Executive Director of the State
Board of Elections, ROY COOPER, as Attorney General of the State
of North Carolina, and NORTH CAROLINA STATE BOARD OF ELECTIONS,
Filed: 3 July 2007
1. Elections_judicial_one man, one vote not applicable
The principle of one man, one vote is not constitutionally required in the election of
judges because judges serve the people rather than represent them.
2. Evidence_hearsay--AOC preclearance documents_public record not excluded
The trial court erred in a judicial districting case by admitting an exhibit from the AOC
Director only on a limited basis. Public records and reports are not excluded by the hearsay rule;
this document was prepared pursuant to the AOC Director's statutory duty to obtain preclearance
of districts from the United States Department of Justice under the Voting Rights Act and was
admissible under N.C.G.S. § 8C-1, Rule 803(8).
3. Elections_judicial districts--not arbitrary
The trial court erred by concluding that the General Assembly had acted arbitrarily and
capriciously when it established Superior Court districts for Wake County. The concerns
addressed by the General Assembly were compelling state interests, and the facts in the record
reasonably justify the General Assembly's action.
Appeal by defendants from judgment and order entered 8
February 2006 by Judge Donald L. Smith in Superior Court, Wake
County. Heard in the Court of Appeals 19 March 2007.
Akins, Hunt & Fearon, P.C., by Donald G. Hunt, Jr., for
Attorney General Roy Cooper, by Special Deputy Attorneys
General Alexander McC. Peters, Susan K. Nichols, and Karen E.
Long, for defendants-appellants.
In Stephenson v. Barlett, our Supreme Court held that the
North Carolina Constitution guarantees that the right to vote onequal terms is a fundamental right in the context of
(See footnote 1)
Here, Plaintiffs contend that the
holding in Stephenson extends beyond representative positions to
include the election of judges. Because the principle of one
person, one vote is constitutionally required only in the context
of elections for representative positions,
(See footnote 2)
we conclude that the
rule does not apply to the election of judges, who do not
represent people, they serve people.
(See footnote 3)
Accordingly, we reverse the
judgment of the trial court.
On 6 December 2005, Plaintiffs Brian Blankenship, Thomas J.
Dimmock, and Frank D. Johnson, who are citizens, taxpayers, and
registered voters in Wake County, filed this lawsuit against the
North Carolina State Board of Elections and Attorney General to
challenge the constitutionality of the Superior Court districts in
Wake County, as established by North Carolina General Statute § 7A-41 (2004). Plaintiffs argue that the current judicial districting
plan for Wake County violates the Equal Protection Clause of the
North Carolina State Constitution because the districts are
disproportionate in terms of population.
Section 7A-41 divides Wake County into four judicial
districts: 10-A, 10-B, 10-C, and 10-D. Under the statute and
according to the 2000 U.S. Census, the six resident Superior Court
Judges allotted to Wake County are elected as follows: Two in
District 10-A, with 64,398 residents; two in 10-B, with 281,493
residents; one in District 10-C, with 158,812 residents; and one in
10-D, with 123,143 residents. Plaintiffs contend that the
disproportionate size of the districts and number of judges
elected, particularly of District 10-A, unconstitutionally dilute
the voting power of each individual Wake County resident. In their
initial complaint, Plaintiffs sought, inter alia, a declaratory
judgment that the judicial districts are unconstitutional and an
injunction enjoining and restraining Defendants from holding any
election for the office of Superior Court Judge in Wake County.
On 9 December 2005, then Chief Justice I. Beverly Lake of the
North Carolina Supreme Court designated this matter as
exceptional pursuant to Rule 2.1 of the General Rules of Practice
and assigned an Emergency Superior Court Judge to hear the case.
After expedited discovery and motions, the trial court entered a
judgment and order on 8 February 2006, concluding that the Wake
County judicial districts are unconstitutional as drawn and
granting declaratory judgment and a permanent injunction toPlaintiffs. The trial court stayed the judgment and order pending
Defendants timely appealed, arguing that the trial court erred
by (I) concluding that the Equal Protection Clause of Article I,
Section 19 of the North Carolina Constitution requires population
proportionality in the establishment of Superior Court districts;
(II) not treating documents submitted by the Administrative Office
of the Courts to the United States Department of Justice to obtain
pre-clearance of 1993 N.C. Session Laws 321 as a record of
regularly conducted activity or a public record or report; and
(III) concluding that the General Assembly acted arbitrarily and
capriciously when it established the Superior Court divisions for
Wake County. We agree with all of Defendants' arguments.
 Defendants first argue that the trial court erred by
concluding that the Equal Protection Clause of Article I, Section
19 of the North Carolina Constitution requires population
proportionality in the establishment of Superior Court districts.
Defendants contend that the principle of one person, one vote
does not apply to judicial elections under either the United States
Constitution or our North Carolina State Constitution. We agree,
oting that this is a question of first impression to our State's
(See footnote 4)
The Equal Protection Clause, first placed in our State
Constitution in 1971, declares that [n]o person shall be denied
the equal protection of the laws[.] N.C. Const. art. I, § 19.
The United States Supreme Court has held that the cognate Equal
Protection Clause of the Fourteenth Amendment to the federal
constitution requires that the principle of one person, one vote
govern legislative districting and apportionment. See Reynolds v.
, 377 U.S. 533, 565-66, 12 L. Ed. 2d 506, 529 (1964) (Since
the achieving of fair and effective representation for all citizens
is concededly the basic aim of legislative apportionment, we
conclude that the Equal Protection Clause guarantees the
opportunity for equal participation by all voters in the election
of state legislators.). Our state Supreme Court has likewise
concluded that the right to vote on equal terms is a fundamental
right guaranteed by the Equal Protection Clause. See Stephenson
, 355 N.C. 354, 378, 562 S.E.2d 377, 393 (2002)
(citations omitted) (case brought by citizens and registered voters
to challenge legislative redistricting plans approved by the North
Carolina General Assembly), reh'g denied
, 357 N.C. 470, 587 S.E.2d
342 (2003). Nevertheless, federal courts including the United States
Supreme Court have drawn a distinction between the requirement of
one person, one vote in elections for representative positions
and those for judicial positions:
[E]ven assuming some disparity in voting
power, the one man-one vote doctrine,
applicable as it now is to selection of
legislative and executive officials, does not
extend to the judiciary. Manifestly, judges
and prosecutors are not representatives in the
same sense as are legislators or the
executive. Their function is to administer
the law, not to espouse the cause of a
particular constituency. Moreover there is no
way to harmonize selection of these officials
on a pure population standard with the
diversity in type and number of cases which
will arise in various localities, or with the
varying abilities of judges and prosecutors to
dispatch the business of the courts. An
effort to apply a population standard to the
judiciary would, in the end, fall of its own
Holshouser v. Scott
, 335 F. Supp. 928, 931 (M.D.N.C. 1971) (quoting
Stokes v. Fortson
, 234 F. Supp. 575 (N.D. Ga. 1964)), aff'd mem.
409 U.S. 807, 34 L. Ed. 2d 68 (1972). Significantly, in
, the Middle District Court of North Carolina could find
no case where the Supreme Court, a Circuit Court, or a District
Court has applied the 'one man, one vote' principle or rule to the
at 930. Indeed, in Wells v. Edwards
, the United
States Supreme Court affirmed a district court's rejection of a
claim based on the one person, one vote principle applied to the
election of Louisiana Supreme Court justices. See
347 F. Supp. 453
(M.D. La. 1972), aff'd mem.
, 409 U.S. 1095, 34 L. Ed. 2d 679(1973).
(See footnote 5)
Of course, we recognize that when construing and applying our
[state] laws and the Constitution of North Carolina, [North
Carolina appellate courts are] not bound by the decisions of
federal courts, including the Supreme Court of the United States.
State ex rel. Martin v. Preston
325 N.C. 438, 449-450, 385 S.E.2d
473, 479 (1989). Still, in our discretion, we may conclude that
the reasoning of such decisions is persuasive. Id.
S.E.2d at 479. Indeed, as this Court has previously noted,
[a]lthough decisions of the Supreme Court of the United States
construing federal constitutional provisions are not binding on our
courts in interpreting cognate provisions in the North Carolina
Constitution, they are, nonetheless, highly persuasive. Stam v.
, 47 N.C. App. 209, 214, 267 S.E.2d 335, 340 (1980) (citation
omitted), aff'd in part and rev'd on other grounds in part
, 302N.C. 357, 275 S.E.2d 439 (1981).
When interpreting our Constitution _ as in interpreting a
statute _ where the meaning is clear from the words used, we will
not search for a meaning elsewhere. Preston
, 325 N.C. at 449, 385
S.E.2d at 478-79 (citation omitted). Additionally, we emphasize
that [a]ll power which is not expressly limited by the people in
our State Constitution remains with the people, and an act of the
people through their representatives in the legislature is valid
unless prohibited by that Constitution. Id.
at 448-49, 385 S.E.2d
at 478 (citing McIntyre v. Clarkson
, 254 N.C. 510, 515, 119 S.E.2d
888, 891 (1961)).
, our Supreme Court construed a state statute
related to the election, districts, and terms of office for various
Superior Court judgeships. 325 N.C. at 443, 385 S.E.2d at 475.
Discussing the constitutionality of postponing the election dates
for certain judgeships, the Court noted that our state Constitution
specified the timeline for legislative and executive elections, but
used more general from time to time language for judicial
at 454, 385 S.E.2d at 481. The Court concluded
that [t]he distinction between those [legislative and executive]
provisions of our Constitution and the provisions before us in this
case concerning judges must have been intentional and further
evidences a constitutional intent for flexibility in setting the
times for holding judicial elections. Id.
We find that reasoning
to be applicable to the instant case.
Here, North Carolina General Statute § 7A-41, establishing theSuperior Court judicial districts in North Carolina, as well as the
number of judges assigned to each district, was passed into law
pursuant to Article IV, Section 9 of the North Carolina
Constitution. According to that Section, [t]he General Assembly
shall, from time to time, divide the State into a convenient number
of Superior Court judicial districts and shall provide for the
election of one or more Superior Court Judges for each district.
N.C. Const. art. IV, § 9(1) (emphasis added).
By contrast, the constitutional provisions governing the
election of state senators and representatives require that those
officials shall represent, as nearly as may be, an equal number of
inhabitants. N.C. Const. art. II, §§ 3(1), 5(1). That population
proportionality requirement was added through an amendment in 1968,
proposed by the General Assembly and approved by voters to conform
with the judicial rulings on one person, one vote. See
Sanders, Director of the Institute of Government, University of
North Carolina at Chapel Hill, Our Constitutions: A Historical
, at http://statelibrary.dcr.state.nc.us/nc/stgovt/preconst.htm#1971.
None of this language _ not the requirement for proportionality for
state legislative elections, nor the lack thereof with respect to
state judicial elections - was changed in the 1971 North Carolina
Constitution, which was adopted by voters after comprehensive
review and revision. Id.
Accordingly, we find that the distinction between these
constitutional provisions must have been intentional and
evidences a constitutional intent not to require populationproportionality in state judicial elections. See Preston
, 325 N.C.
at 454, 385 S.E.2d at 481. We therefore hold that the trial court
erred by concluding otherwise.
 Next, Defendants contend that the trial court erred by not
treating documents submitted by the Administrative Office of the
Courts (AOC) to the United States Department of Justice (USDOJ) to
obtain pre-clearance of 1993 N.C. Session Laws 321 as a record of
regularly conducted activity or a public record or report. We
At the beginning of the trial, Plaintiffs' counsel sought to
strike the affidavit of Paul Reinhartsen, AOC Research Specialist
for Legal Services, including the attached Exhibit A, which was a
copy of the documentation submitted to and received from the USDOJ
with regard to preclearance for the proposed state law adding a
judgeship to District 10-A. Plaintiffs' counsel argued that
Exhibit A included hearsay and information about which the author,
AOC Director James C. Drennan, had no personal knowledge. Counsel
for the State Board of Elections responded that Exhibit A was a
public record, prepared by public officials and pursuant to their
statutory obligation[,] and was therefore an exception to the
hearsay rule. After a lengthy discussion with both parties as to
the nature and contents of the exhibit, the trial court reiterated
that he would let it in, but [he would] be very careful, . . . to
make sure [he] base[d] no findings on anything contained in [the
AOC exhibit] that is hearsay or is made without personalknowledge.
North Carolina Rule of Evidence 803(8) provides that Public
Records and Reports are not excluded by the hearsay rule. N.C.
Gen. Stat. § 8C-1, Rule 803(8) (2005). Such records are defined,
inter alia, as [r]ecords, reports, statements, or data
compilations, in any form, of public offices or agencies, setting
forth . . . matters observed pursuant to duty imposed by law as to
which matters there was a duty to report, . . . unless the sources
of information or other circumstances indicate lack of
Here, Exhibit A was prepared by the Director of the AOC,
pursuant to his statutory duty to gain preclearance from the USDOJ
under the Voting Rights Act. See N.C. Gen. Stat. § 120-30.9C
(2005) (The [AOC] shall submit to the Attorney General of the
United States . . . all acts of the General Assembly that amend,
delete, add to, modify or repeal any provision of Chapter 7A of the
General Statutes of North Carolina which constitutes a 'change
affecting voting' under Section 5 of the Voting Rights Act of
1965.). Exhibit A falls within this language; it was a copy of
the documentation sent by the AOC to the USDOJ pursuant to its
statutory duty under N.C. Gen. Stat. § 120-30.9C.
We hold that the trial court should have considered Exhibit A
in its entirety, as the hearsay rule did not apply to its contents.
Accordingly, the trial court erred by admitting the exhibit on only
a limited basis.
 Finally, Defendants argue that the trial court committed
error by concluding that the General Assembly acted arbitrarily and
capriciously when it established the Superior Court districts for
Wake County. We agree.
In light of the AOC affidavit and Exhibit A discussed above,
it is evident that the General Assembly consulted with the AOC
prior to enacting the statute that established a new judgeship in
District 10-A. Exhibit A contains analysis as to population and
caseload of judicial districts, as well as the AOC Director's
recommendations for where to create new judgeships. Although the
record also contains concerns expressed with respect to an
additional judgeship for Wake County, and indications that the
General Assembly did not engage in wide consultations, basing their
decision on the recommendation of the AOC Director was not
arbitrary and capricious. Rather, passage of the statute
creating the new judgeship in District 10-A followed investigation
and analysis and, as such, was the result of logical reasoning.
According to the United States Supreme Court:
The constitutional safeguard [of the Equal
Protection Clause of the Fourteenth Amendment]
is offended only if [a law's] classification
[of groups of citizens] rests on grounds
wholly irrelevant to the achievement of the
State's objective. State legislatures are
presumed to have acted within their
constitutional power despite the fact that, in
practice, their laws result in some
inequality. A statutory discrimination will
not be set aside [as arbitrary or capricious]
if any state of facts reasonably may be
conceived to justify it.
McGowan v. Maryland
, 366 U.S. 420, 425-26, 6 L. Ed. 2d 393, 399(1961); see also Town of Beech Mountain v. County of Watauga
N.C. 409, 378 S.E.2d 780, cert. denied
, 493 U.S. 954, 107 L. Ed. 2d
351 (1989); Jones v. Weyerhaeuser Co.
, 141 N.C. App. 482, 539
S.E.2d 380 (2000), appeal dismissed and disc. rev. denied
, 353 N.C.
525, 549 S.E.2d 858 (2001).
The concerns addressed by the General Assembly's enactment of
N.C. Gen. Stat. § 7A-41, creating the new judgeship in District 10-
A, included heavy caseloads and maintaining minority districts, as
well as compliance with federal law and the Voting Rights Act.
Such issues are compelling state interests, and the state of facts
presented by the record reasonably justify the General Assembly's
action to address those interests.
We conclude that the creation of the Wake County Superior
Court judicial districts was not arbitrary and capricious, nor was
it clearly, positively, and unmistakably unconstitutional
sufficient to strike down the statute. Jacobs v. City of
, 137 N.C. App. 441, 443, 528 S.E.2d 905, 907 (2000)
(quotation and citation omitted); see also Baker v. Martin
N.C. 331, 334, 410 S.E.2d 887, 889 (1991) ([A statute] will not be
declared invalid unless its unconstitutionality be determined
beyond reasonable doubt. (quotation and citation omitted)).
Reversed and vacated.
Chief Judge MARTIN and Judge GEER concur.
355 N.C. 354, 378, 562 S.E.2d 377, 393 (2002) (citation
and quotation omitted), reh'g denied
, 357 N.C. 470, 587 S.E.2d
342 (2003). Likewise, the federal Constitution imposes one
ground rule for the development of arrangements of local
government: a requirement that units with general governmental
powers over an entire geographic area
not be apportioned among
single-member districts of substantially unequal population.
Avery v. Midland County
, 390 U.S. 474, 485-86, 20 L. Ed. 2d 45,
54 (1968) (emphasis added).
See Holshouser v. Scott
, 335 F.Supp. 928, 932 (M.D.N.C.
1971) (We hold that the 'one man, one vote' rule does not apply
to the state judiciary, and therefore a mere showing of a
disparity among the voters or in the population figures of the
district would not be sufficient to strike down this election
procedure and these statutes.), aff'd mem.
, 409 U.S. 807, 34 L.
Ed. 2d 68 (1972).
at 932 (quoting Buchanan v. Rhodes
, 249 F.Supp. 860,
865 (N.D. Ohio), appeal dismissed
, 385 U.S. 3, 17 L. Ed. 2d 3
In their brief, Plaintiffs assert that [t]he only
significant difference between this case and Stephenson
, 355 N.C. 354, 562 S.E.2d 377 (2002)] is that the
plaintiffs, in addition to their equal protection
challenge, also alleged that the General Assembly's districtingplan violated the 'Whole County Provisions' found in [North
Carolina Constitution] Article II, § 3(1)-(2) and 5(1)-(2).
however, involved districts and elections for a
different type of office altogether, namely, for legislative
positions, such that some voters may not enjoy the same
representational influence or 'clout' as others. 355 N.C. at
377, 562 S.E.2d at 393. Given that judicial elections do not
implicate the same concerns, nor the same statute and
constitutional section, we conclude that Stephenson
relevant, is not controlling precedent, and this is indeed a
question of first impression.
Plaintiffs assert that the Fourth Circuit Court of
Appeals largely adopted the Wells
dissent as law in the context
of electing North Carolina superior court judges. The relevant
language from the Fourth Circuit states that the court would be
compelled to conclude that the election of superior court judges
in North Carolina implicates the goal of equal protection and
issues of fair and effective representation. Republican Party
of North Carolina v. Martin
, 980 F.2d 943, 953 (4th Cir. 1993),
, 510 U.S. 828, 126 L. Ed. 2d 60 (1993).
Nonetheless, we observe that the Fourth Circuit also stated
it was bound by the Wells
decision, and the rejection of the
notion that the Equal Protection Clause is not implicated in
judicial elections was based on the question of impermissible
vote dilution, not on the principle of one person, one vote; as
such, any position on the necessity of population proportionality
was dicta. See id.
at 954; see also Voter Information Project,
Inc. v. City of Baton Rouge,
612 F.2d 208, 210-12 (5th Cir. 1980)
(recognizing distinction between claims grounded in one-person,
one-vote and those based on vote dilution in a challenge to
method of electing judges).
*** Converted from WordPerfect ***