Lawmakers and the challengers of maps proposed for electing North Carolina’s General Assembly members waited until the 11th hour to respond to districts suggested by an unaffiliated mapmaker.
Lawmakers were critical of the process, saying the federal judges who tapped a Stanford University law professor to draw maps for them had done so prematurely and allowed him to consider race as he looked at election districts in Cumberland, Guilford, Hoke, Mecklenburg, Wake, Bladen, Sampson and Wayne counties.
The three federal judges presiding over the case that will determine what districts North Carolina’s state Senate and House members come from in the 2018 elections have yet to rule on maps the lawmakers adopted in August.
The judges — James Wynn of the 4th U.S. Circuit Court of Appeals, Catherine Eagles and Thomas Schroeder, both of the U.S. Middle District of North Carolina — ordered new lines after the U.S. Supreme Court affirmed their ruling last year that found 28 of the state legislative districts were longstanding unconstitutional racial gerrymanders.
Lawmakers adopted new maps in 2017 that they contend correct the gerrymanders, but challengers argued there still were problems with them.
With North Carolina elections set for next year, and the filing period for candidates opening in February, the judges have laid out a schedule that attempts to have court rulings on the new maps in place to meet the 2018 election schedule.
To help with the process, the judges tapped Nathaniel Persily, a Stanford University law professor, to show them how districts could be drawn in eight counties to alleviate their concerns that some of the districts might be designed to weaken the influence of black voters.
Is mapmaking out of order?
Phil Strach, the Raleigh-based attorney representing lawmakers, contends the judges were premature in appointing a “special master,” unaffiliated with either party, as their mapmaker.
“Judges do not issue provisional sentences before a defendant is found guilty,” Strach stated in the lawmakers’ response to the mapmaker submitted shortly before the midlight deadline Friday. “(J)uries do not make provisional damages awards before adjudicating liability; and courts do not craft provisional remedies before finding a constitutional violation.”
“Those kinds of anticipatory remedial proceedings are alien to our legal system not only because of the presumption of innocence that applies across all legal contexts, but also because of the fundamental unfairness that would result from forcing a defendant to expend resources helping to craft an anticipatory judicial remedy for a wrong that has not even been proven to exist,” Strach added.
Strach also contends that maps drawn by Persily appear to rely on racial data when Republican leaders have said Thomas Hofeller, their mapmaker, did not consider racial data in the drawing of the 2017 lines.
New election district maps were adopted in August, almost three months after the U.S. Supreme Court unanimously affirmed that districts used to elect General Assembly members in 2012, 2014 and 2016 included 28 unconstitutional racial gerrymanders. The election maps packed black voters, who often vote Democratic, into districts where their candidates already were likely to be successful. By doing that, the courts found, the overall influence of black voters had been weakened in North Carolina.
‘Race-based redistricting’ allegations
The maps have helped Republicans in North Carolina, often considered a swing state in national elections. Republicans dominate both chambers of the General Assembly, holding 35 of the 50 Senate seats and 75 of the 120 House seats after Rep. Bill Brisson of Dublin recently changed his party affiliation from Democrat to Republican. Their numbers allow them to override Democratic Gov. Roy Cooper’s vetoes.
It is unclear what impact Persily’s maps would have on those numbers. The lines could change before he gets them to the judges in the next two weeks.
Strach contends the way Persily drew the districts “imposes race-based redistricting on the state against its will.” He says the lawmakers should get another chance to draw the lines. The judges, frustrated by the slow pace with which lawmakers were proceeding to change election lines stated: “The State is not entitled to multiple opportunities to remedy its unconstitutional districts.”
In their order appointing Persily to help with the mapmaking, the judges said that some of the districts in the 2017 plan “preserve the core shape of the unconstitutional district, divide counties and municipalities along racial lines, and are less compact than their benchmark version.”
Strach said the judges provided no explanation or evidence to support their “concerns.”
“Nor did the Court explain how the General Assembly’s use of incumbency and political data in drawing its proposed remedial districts ‘embedded, incorporated and perpetuated the impermissible use of race,’ ” Strach said.
The challengers have argued in court that just because the lawmakers have said over and over that race did not play a role in the map drawing, that doesn’t make it so. Some of the districts in the 2017 plan looked similar to districts in the 2011 maps, they argued. The judges raised similar concerns amid questions of how the lawmakers could correct racial gerrymanders without checking new lines against racial data.
“There is no precedent for authorizing racial sorting as a remedy for ‘correcting’ allegedly racially gerrymandered districts,” Strach stated in his response to Persily’s request for feedback on his maps.
Tweaks in Guilford and Wake?
The challengers of the lawmakers’ maps offered suggested tweaks to the districts presented earlier this week by Persily, but overall they said his maps were a vast improvement to the ones approved by the General Assembly.
Allison Riggs, an attorney at the Southern Coalition for Social Justice, and Edwin Speas, a Raleigh-based attorney, said in their response to Persily that the challengers have concluded his plan “does remedy the constitutional flaws in the legislature’s 2017 enacted plan.”
The lawyers who have represented the challengers in the long-running redistricting disputes suggested changes to Persily’s districts in Guilford County, where incumbent lawmakers from both parties are “double-bunked,” or placed in districts where they would have to compete with each other.
The Republican lawmakers who led the redistricting process in the General Assembly stated that one of their criteria was to protect incumbent lawmakers.
The federal judges said Persily could consider the addresses of current legislators in shaping his lines, but doing so should not play a greater role than creating lines that did away with any racial gerrymanders and other unconstitutional issues.
In Guilford County, black Democrat Amos Quick would be in the same district as white Republican Jon Hardister, the challengers pointed out.
Democrat Pricey Harrison, a white woman who often has the support of black voters, would be in a district with white Republican John Blust under Persily’s draft plan.
Two House districts in Guilford County would be left with no incumbents under Persily’s plans.
If those district lines were changed slightly, the challengers said, Hardister and Quick could be in districts where they would not compete for the same seat.
They also suggest shifts of lines in two House districts in Wake County that would not force Democrats Grier Martin and Cynthia Ball to run against each other if they were both to seek re-election.
Strach used a legal argument that challengers used in protesting Persily’s district lines, saying the professor had created maps that unnecessarily changed districts in the middle of the decade, violating the state Constitution. Strach contends that the federal judges and Persily do not have jurisdiction to consider the state constitutional claim.
Strach said the process ordered by the judges and used by Persily “defies precedent, ignores state sovereignty, and imposes race-based redistricting on the state against its will.”
Persily has until Dec. 1 to get his maps to the federal judges. He could hold public hearings on his plans but has not scheduled any yet.