My early line on the 2014 election

Disapproval of Congress is at an all-time high. Only about 10 percent of the American people approve of what it does. On Meet The Press last Sunday, Senate Majority Leader Harry Reid said North Korea is more popular than Congress. His statement puts a bow on it.

But the fact that Congress has degenerated into dysfunctionality doesn't mean most of them won't be re-elected next year. They will. Can the Democrats recapture the House? Can the Republicans regain the Senate? Let's go to The Shadow's early line and see.

The Republicans control the House of Representatives 234-201. The Democrats would need to gain a net of 17 seats in order to regain control of the chamber. Although not impossible, it would be a daunting task.

Over the past two decades, there have been several "wave elections" that brought fundamental change to the House. In 1994, the GOP emerged from 40 years in the wilderness to take control of the House by winning 54 seats. It was the Gingrich revolution.

Then, in the elections of 2006 and 2008, the Democrats were swept back into power by winning 52 seats, thereby giving President Barack Obama control of all of the levers of power in Washington for his first two years in the White House.

But in 2010, another wave election led by the tea party insurgents returned the House to Republican dominance as the GOP gained 63 seats. In 2012, the Democrats picked up eight seats to slightly narrow the Republican House majority.

There will not be another wave election in 2014 unless some major external and unexpected event roils the political landscape. Thanks to congressional redistricting following the 2010 census, the GOP has a built-in structural advantage in a large number of House districts.

North Carolina is a perfect example of this advantage. Prior to redistricting following the 2010 census, the Democrats controlled seven of North Carolina's 13 House seats. But now the GOP has a 9-4 edge. Our own district here in the mountains tells the story. The GOP's redistricting removed most of the African-American precincts in Asheville from our district. That turned the district from blue to red. That helps explain why Democrat Heath Shuler retired and why Republican Mark Meadows won.

When all is said and done on Nov. 4, 2014, the GOP will still rule the roost in the House of Representatives.

The Democrats control the Senate 54-46, including two independents, Bernie Sanders of Vermont and Angus King of Maine, who routinely vote with the Democrats. However, in a special election coming Oct. 16, it is highly likely that the Democrats will pick up another seat in New Jersey with the election of Cory Booker, the Democratic mayor of Newark. That will give the Democrats a 55-45 edge in the chamber.

In order to regain control of the Senate in 2014, the Republicans would have to gain at least six seats. A 50-50 split would leave the Democrats in control because the tie would be broken by the constitutional officer who serves as the president of the Senate, Vice President Joe Biden.

Most senators seeking re-election will win. Thus the balance hangs in seven toss-up states that are now held by Democrats. These states are Montana, South Dakota, West Virginia, Alaska, Arkansas, Louisiana and North Carolina. For the Republicans to take control of the Senate, they will need to win six of these seven battleground states. It's a tall order, but they have a chance because all of these are red states.

The GOP would appear to be poised to capture South Dakota, West Virginia, Montana and Arkansas. They can also win in Alaska, assuming that former governor Sarah Palin steers clear of the fray. That's five of the six the Republicans need, and it leaves Louisiana and North Carolina.

In Louisiana, Democratic Sen. Mary Landrieu seeks her fourth term. Her father, Moon Landrieu, was mayor of the Crescent City, and now her brother, Mitch, is the current mayor of New Orleans. Sen. Landrieu has been one of the most conservative Democrats in the Senate.

All of her previous elections have been close. For her, the key to victory remains unchanged — roll up huge margins among African-American voters in New Orleans. With her brother's help, she probably will do it again next year.

And there you have it. Control of the Senate comes down to North Carolina! Freshman Democratic Sen. Kay Hagan seeks re-election. She grew up in Lakeland, Fla., where her father was a successful businessman, a power broker in state Democratic circles and the mayor of Lakeland. Hagan herself is one of the wealthiest members of the Senate. Her net worth is estimated to be between $11 million and $40 million.

Her legislative track record in the Senate is undistinguished. She voted for Obamacare. And next year she will not have the advantage that was hers in 2008 — the large voter turnout that accompanies a presidential election.

But you can't beat somebody with nobody. And that's the current problem facing the Republican Party in North Carolina. They do not have a front-line candidate who is able and eager to send Hagan to the showers.

In 2010 and 2012, the GOP flushed six winnable Senate seats down the toilet by nominating certain losers. Will North Carolina be No. 7? If so, the consequences of stupidity for the GOP will loom large.

Maybe the Shadow will throw his hat in the ring, but Lee Goldman can be reached at: EmailMe.  Goldman's series on Supreme Court issues over the past three weeks has earned national recognition with re-publication on SCOTUSblog.com. As a result, N.C. Rep. Mark Meadows formally commended Goldman on the House floor Tuesday.

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Is it political or racial gerrymandering?

Gerrymandering has been around since the early 19th century. Political gerrymandering is as American as apple pie. Racial gerrymandering is an unconstitutional violation of the Equal Protection Clause of the 14th Amendment. Telling them apart is hard and intensely controversial. Let's try.

However, before trying, it's necessary to look back to the Supreme Court's ruling in Baker v. Carr in 1962. The fundamental question was whether federal courts have the power to determine the constitutionality of a state's voting districts.

Justice William J. Brennan, writing for the 6-2 majority, held that they do have such power. And Justice William O. Douglas, writing a concurring opinion, stated that if a voter no longer has "the constitutional value of his franchise [right to vote] and the legislative branch fails to take appropriate restorative action, the doors of the courts must be open to him." With its landmark decision, the court entered what became known as the "political thicket." It's been there ever since.

The enactment of the Voting Rights Act (VRA) in 1965 and its subsequent amendments has significantly shaped, and some would argue significantly distorted, the decisions the courts have taken over the past half-century. Section 2 of the VRA applies nationally and it requires that, if racially polarized voting exists and if a majority-minority district can be drawn, then it must be drawn. Section 5 of the VRA, which covers nine states and portions of other states, including North Carolina, previously required that the number of majority-minority districts cannot decrease during redistricting. The court's Shelby decision last month rendered Section 5 inoperable.

One of those districts, the 12th in North Carolina, commands our attention. It was and remains a majority-minority district created pursuant to Section 5 of the VRA in the early 1990s. The grotesquely contorted 12th District resembled a snake slithering up I-85 from Gastonia to Durham. When it was created in 1992, two-thirds of its residents were African-American.

It triggered a titanic legal battle that would last until April 2001 and would be the subject of three cases decided by the Supreme Court, all described in meticulous detail by Tinsley Yarborough in his wonderfulbook, "Race and Redistricting."

The fundamental issue brought before the high court was whether the two majority-minority districts being proposed in North Carolina were simply the result of traditional and legal political gerrymandering, or were they an impermissible and illegal racial gerrymander, driven by the preclearance requirements of Section 5 of the VRA?

The challenge that the two districts were an illegal racial gerrymander was led by an improbable individual, Robinson Everett, a Duke law professor and former chief judge of the Court of Military Appeals. Everett was a moderately liberal Democrat with close connections to Durham's African-American community.

Everett deeply opposed discrimination against blacks, but he was just as deeply opposed to race-conscious policies that were designed to benefit one race over another. He believed North Carolina's two majority-minority districts were unconstitutional racial gerrymanders.

Everett prevailed in the first two of the cases before the Supreme Court, Shaw v. Reno (1993) and Shaw v. Hunt (1996). But he lost in the third and decisive case, Easley v. Cromartie (2001). Writing for the 5-4 majority, Justice Sandra Day O'Connor stated that the majority-minority districts were not racial gerrymanders and were, therefore, not a violation of the Equal Protection Clause of the 14th Amendment.

The loss was a bitter defeat for Everett, especially because in one of the earlier rulings, Justice O'Connor, writing for the 5-4 majority in that case, had stated in part, "A reapportionment plan that includes in one district individuals who belong to the same race, but who are otherwise widely separated by geographic and political boundaries, and who may have little in common with one another but the color of their skin, bears an uncomfortable resemblance to political apartheid."

Robinson Everett died in 2009, having won two battles but not the war. But this fight will continue. Any review of the voluminous rulings of the courts over the decades makes evident the complexity, subtlety and controversial nature of a racially charged issue like this.

But, that said, it's abundantly clear that whether you believe the proliferation and maintenance of majority-minority districts are beneficial and essential, or whether you believe they are an unconstitutional violation of the Equal Protection Clause, there is simply no doubt that there has been a profound change in the American political landscape since Baker v. Carr in 1962 and the VRA in 1965.

That changed landscape has been attributable to many factors, including, of course, the VRA. But the one factor that everyone knows and that defies denial is that this nation has now twice elected an African-American president of the United States. And both times he won the popular vote handily and the electoral vote overwhelmingly. He did not need an African-American district In order to win.

That's enough to tell this writer that it's only a matter of time before the high court will deal with more cases that challenge racial gerrymandering.

And it tells me that it's a question of when, and not if, the court ends it, clearly and decisively.

I can actually think of a wonderful precedent the court could use in reaching such a decision. Remember Brown v. Board of Education in 1954? The court ruled that separate educational facilities are inherently unequal. Its ruling was 9-0!

If segregated school districts are inherently unequal, what's to love about segregated voting districts?

The Shadow's gone off to law school, but Goldman can be reached at:  EmailMe

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LeRoy Goldman
The Shadow Knows

Published: Sunday, July 7, 2013 at 4:30 a.m.

Voting rights and wrongs: Court makes correct decision on VRA

On June 25, the Supreme Court handed down its decision in Shelby County Alabama v. Holder, the Voting Rights Act case. That evening Brian Williams, the NBC Nightly News anchor, opened the broadcast by saying, "as one reporter put it, the U.S. Supreme Court has driven a stake through the heart of the most important civil rights law ever enacted, the Voting Rights Act."

In a single sentence, while hiding behind an anonymous reporter, Williams disgraced himself, the profession of journalism and distorted the truth! Not bad for a guy who makes $10 million a year!

The VRA was signed into law in 1965. The Senate and House had passed it with huge bipartisan majorities, including well more than 80 percent of the Republicans and both of their leaders, Senate Minority Leader Everett Dirksen and House Minority Leader Gerald Ford. It has done an immense amount of good over the past half century. It has basically eradicated voting discrimination, especially in the South, where racial discrimination had been rampant.

The centerpiece of the law is found in two different, but related sections, Sections 2 and 5. Section 2 is permanent and covers the entire nation. It is designed to require enforcement of the 14th and 15th Amendments to the Constitution. The 14th guarantees equal protection and due process, and the 15th prohibits abridging the right to vote based on race. Section 2 contains a general prohibition on voting discrimination that is enforced by Federal District Courts. What changes did the High Court's ruling in Shelby make in Section 2? None.

Section 5 has to be periodically reauthorized. It is currently authorized through 2031. Under jurisdictions covered by Section 5, no changes in voting procedures are permitted without preclearance by the United States Department of Justice. Section 5 covers nine states in the South, and counties in several other states, including North Carolina. The provisions of Section 5 trample on the constitutional doctrine of federalism and the sovereignty of the states. But, given the severity of voter discrimination in those states in 1965, it was a price that had to be paid. The United States Civil Rights Commission has now found that the number of Justice Department objections to proposed changes has become trivially small, less than 0.1 percent. What changes did the high court's ruling in Shelby make to Section 5? None

Section 4 of the VRA contains a formula by which covered jurisdictions requiring preclearance under Section 5 are determined. That formula has not been modified during the 48-year history of the VRA. Because it is outdated, the high court ruled in Shelby that the formula is unconstitutional. Unless and until Congress and the president write a new formula, Section 5 is inoperable.

It's not as if they were not given advance warning. In a decision in 2009 on a previous VRA case, Chief Justice John Roberts, writing for the majority, put a clear warning shot across the bow of the president and the Congress when he stated, "the evil that Section 5 is meant to address may no longer be concentrated in the jurisdictions singled out for preclearance. The statute's coverage formula is based on data that is now more than 35 years old, and there is considerable evidence that it fails to account for current political conditions".

But President Barack Obama, Attorney General Eric Holder, and the then-Democratic controlled Congress, including the Congressional Black Caucus, ignored the clear warning and chose not to update the Section 4 formula.

Within 24 hours of the Court's ruling in Shelby, the voices of reverse racism were in full-throated attack. Al Sharpton said, "What they've just done is really revoked a lot of what Dr. King's dream was all about. They just canceled the dream". Jesse Jackson said, "This is the most devastating blow to civil rights since the 1896 decision (Louisiana's grandfather clauses)." And Benjamin Jealous, President of the NAACP, said, "This decision is outrageous."

In fact, what explains their feigned outrage is something else. In Commentary Magazine, Jonathan Tobin illuminates the real issue. He stated, "It must be understood that once the detritus of segregation and other laws intended to prevent blacks from voting were swept away, the main point of the law has been to create a system that enshrined racial gerrymandering as the norm." He called that system a class of political elites that benefit from majority-minority congressional districts.

Writing in the Washington Post on June 26, George Will characterized the VRA as the noblest legislation in American history. He also said, "The court paid the VRA the highest possible tribute by saying the act's key provision is no longer constitutional because the act has changed pertinent facts that once made it so."

Americans have now twice elected a black man president of the United States. A black man is the nation's attorney general. Black people voted in the 2012 election at a higher rate than did white people. Blacks are registered to vote at a higher rate than whites in the nine Southern states covered by the preclearance requirement of Section 5 of the VRA. Mississippi has more elected black officials than any other state in the nation!

The war's over. Decent people of all races have won. The apostles of reverse racism and their enablers in the media are on the losing side of history.

Although the Shadow's whereabouts remain unknown, readers can reach him at: EmailMe

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