A panel of federal judges has ordered North Carolina lawmakers to use maps created by a Stanford University law professor in the coming elections – in the second ruling this week on a state redistricting case.
The ruling, released on Friday, comes less than a month before the filing period opens on Feb. 12 for candidates seeking office in the state Senate and House of Representatives.
The ruling has an impact on districts in eight counties – Senate districts in Cumberland, Guilford and Hoke, and House districts in Bladen, Guilford, Mecklenburg, Sampson, Wake and Wayne counties. All other districts remain as adopted by lawmakers in late August.
It caps a week of much redistricting news for North Carolina. Less than 24 hours earlier, early Thursday evening, the U.S. Supreme Court blocked the effects of a ruling in a different gerrymander case in which a different three-judge panel found North Carolina’s 13 congressional districts to be unconstitutional partisan gerrymanders.
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Now Republican lawmakers plan to appeal Friday’s ruling to the U.S. Supreme Court as well.
The plan by Nathaniel Persily of Stanford University alters nine legislative districts adopted by lawmakers in 2017 to comply with a 2016 court ruling. In 2016, federal judges ruled that 28 of the state’s districts used for electing General Assembly members were unconstitutional racial gerrymanders.
The challengers argued that some of the 2017 districts still were shaped to weaken the overall influence of black voters. They also argued that some of the districts in urban areas such as Wake and Guilford counties were altered mid-decade in violation of the state Constitution.
“We appreciate the input and guidance of the Special Master and the Court to fully eliminate the unconstitutional use of race to segregate voters in North Carolina state legislative districts,” said Allison Riggs, senior voting rights attorney at the Southern Coalition for Social Justice, which represented challengers. “North Carolinians across this state fought for fair districts. We hope that legislators respect the reasoned opinion of this court that this kind of race discrimination has no place in our democracy.”
What will US Supreme Court say?
“It is a shocking move for one of the same judges just reined in by a bipartisan U.S. Supreme Court less than 24 hours ago to again attempt to create chaos and confusion in an election process set to begin in just three weeks,” Rep. David Lewis and Sen. Ralph Hise, the Republicans who led the redistricting process, said in a joint statement. “The legislature has repeatedly asked this court to provide guidance, citing the urgency of the upcoming candidate filing period. Contrary to our pleas and fresh off yesterday’s stinging rebuke from the high court, this panel has unleashed another bout of uncertainty that could harm North Carolina voters who are entitled to free and fair elections.”
The Supreme Court order mentioned by Lewis and Hise temporarily blocked federal judges’ ruling in a case that was the first of its kind to declare congressional maps to be partisan gerrymanders. The order did not mention the merits of the judges’ ruling nor did it say whether the justices planned to take up the case. It stated that lawmakers did not have to draw new maps by next week, as the judges ordered, while a full appeal is prepared.
Keeping up with all the redistricting cases in North Carolina this decade can be dizzying. At least five have been filed since the 2011 plans were adopted.
The legislative districts have been challenged in several of the cases and attorneys have used a variety of legal arguments to challenge the districts and defend them.
Allegations of judicial tyranny
James Wynn of the 4th U.S. Circuit Court of Appeals, appointed by President Barack Obama, U.S. District Judge Catherine Eagles, also an Obama appointee, and U.S. District Judge Thomas Schroeder, a George W. Bush appointee, presided over the case that led to the ruling on Friday.
Wynn, who has been a focus of criticism by North Carolina Republicans, also was on the panel of judges — appointed by Democratic and Republican presidents — that found the congressional districts to be unconstitutional.
“If a power-hungry federal court can order that a California-based professor gets to usurp the North Carolina legislature's constitutional authority to draw election maps, then there is no limit to federal judicial power,” Lt. Gov. Dan Forest, a Republican, posted to Twitter. “This is nothing short of judicial tyranny.”
North Carolina Democratic Party Chairman Wayne Goodwin offered a different take on the ruling.
“Today’s order is a key victory for North Carolina voters and a major step towards fair representation,” Goodwin said in a statement. “Republicans unconstitutionally rigged our elections for years, silencing North Carolina voters, in particular communities of color. We applaud the court’s decision and look forward to competing in fairer districts across the state.”
Phil Strach, the Raleigh-based attorney representing Republican lawmakers who led the redrawing of legislative lines, has argued that judges hired Persily prematurely, before ruling on the constitutionality of the new districts. Strach also contended that no evidence was presented to judges that lawmakers had used race as a predominant factor in the drawing of the lines. He argued, as lawmakers asserted before adopting the maps in August 2017, that race was not considered in the redrawing of districts. Republican lawmakers said their goal was to protect incumbent lawmakers and try to keep counties and voting precincts whole when possible.
Incumbent protections in gerrymandered districts?
In the 92-page order, the judges countered Strach’s contentions.
Thomas Hofeller, the veteran mapmaker for the state and national Republican parties, drew election maps for North Carolina in 2011. Lawmakers have used him to shape new state election districts in 2017. Hofeller has not testified about the criteria or mapmaking data he used for the maps proposed to fix the racial gerrymanders.
“We all know in North Carolina that sometimes race correlates with party, political performance,” Strach told the panel of federal judges earlier this month. “... There has been no evidence so far that what the state was doing was looking at race.”
Lawmakers and Strach contended that the maps were drawn to protect incumbents. Challengers pointed out that incumbents had been elected to districts shaped by unconstitutional gerrymanders.
Incumbent protection, the judges’ order states, “is a valid state interest only to the extent that it is not a pretext for unconstitutional racial gerrymandering.”
“Accordingly, regardless of whether it is ever legitimate for a state redistricting body to draw a remedial districting plan to protect incumbents elected to racially gerrymandered districts — a question the Supreme Court has yet to squarely address — a redistricting body’s desire to protect such incumbents must give way to its duty to completely remedy the constitutional violation,” the order states. “That is particularly true where, as here, a state redistricting body relies on redistricting criteria closely correlated with race in its pursuit of the far more suspect goal of seeking to ensure that incumbents elected in a racially gerrymandered district prevail in their remedial district.”
In hearings late last year and earlier this month, Strach argued that Persily had injected racial quotas into maps in which the race of voters had not been considered by lawmakers. But representatives of the 31 voters who have challenged the districts in a long-running court battle through three election cycles contended that just because lawmakers said they did not consider race in drawing maps for partisan gain did not make it so.
At a four-hour hearing earlier this month, Persily told the judges that he had not drawn his maps with any intended racial quotas.
North Carolina and its many redistricting cases
There has been much attention nationally on North Carolina and the many lawsuits challenging districts drawn since Republicans gained control of the General Assembly in 2010.
Every 10 years after the census, states tweak election lines to show population shifts. For years, parties in power have used the process to try to keep and gain seats in state legislative bodies and in Congress.
Currently Republicans dominate the General Assembly with numbers that allow them to override Democratic Gov. Roy Cooper’s vetoes. They hold 35 of the 50 Senate seats and 75 of the 120 House seats.
A previous draft of Persily’s plan appears to make it easier for Democrats to defeat Republican incumbents in four House races and two Senate races. Persily redrew just a fraction of the state’s 170 legislative districts, mostly in urban counties that tend to favor Democrats. Most of the districts drawn in August favor Republicans, according to a News & Observer analysis.
Ending veto-proof majorities could put Republicans in a position of having to negotiate with Cooper and some Democrats on occasion.
To take back the General Assembly, Democrats would need to flip 16 House seats and 11 Senate seats in November.