A special legislative committee on Tuesday approved guidelines for redrawing two congressional districts in a way that satisfies federal judges that they are not racial gerrymandering but does not consider race.
Mapmakers hired by Republican legislators were to begin using the criteria to start redrawing the 1st and 12th districts to submit to the full General Assembly for approval by the Friday deadline set by a panel of judges in a ruling Feb. 5.
All the while, those lawmakers still hope that the U.S. Supreme Court will grant their motion to put that deadline on hold and rule in their favor on the constitutionality of the original House districts, which were drawn in 2011.
While the special committee met Tuesday, those challenging the districts gave U.S. Chief Justice John Roberts their response to the state’s motion to stay a lower court’s ruling that invalidated the 2011 maps. The plaintiffs argue that no further elections should be held in districts that have been ruled unconstitutional.
Most Democrats on the 37-member Joint Select Committee on Congressional Redistricting went along with five of the seven criteria the committee approved for new maps. They opposed requirements that the maps be drawn without consideration of race and that they retain the state’s 10-3 Republican advantage in the state’s delegation to the U.S. House of Representatives. A handful of Democrats voted against a provision that would keep districts compact, over concerns that it would protect certain incumbents.
Rep. David Lewis, committee co-chairman and a Republican from Harnett County, said once again that GOP legislative leaders believe that they will succeed at the Supreme Court and that the March 15 primary elections can proceed. He said new maps were required as a contingency to try to satisfy the three-judge panel.
Veteran Democratic lawmakers Sen. Dan Blue Jr. of Raleigh and Rep. Floyd McKissick of Durham grilled Lewis extensively, and they warned that ignoring race would run afoul of the federal court ruling. Lewis noted that the panel of judges found that there was no evidence of “racially polarized voting,” which would have warranted the use of race as a predominant factor.
GOP legislators who worked on the maps have said they drew the 1st District, which stretches from Durham to the northeastern corner of the state, with race as the predominant factor. They say they drew the 12th – a long, thin ribbon from Charlotte to Greensboro – for political advantage.
The only way to make sure race is not predominant is to make sure it is not a factor.
Rep. David Lewis, Republican from Harnett County
But the three-judge panel ruled that the 12th also was drawn predominantly on the basis of race.
“The only way to make sure race is not predominant is to make sure it is not a factor,” Lewis said.
Blue asked whether Lewis was seriously proposing to create minority districts without taking into account what minorities live there.
“I long for the day, just like you, Rep. Lewis, when we can do that,” Blue said. “I hope it’s sooner rather than later. But I don’t think it’s wise to spit in the eye of three federal judges who control where we’re going to go with redistricting.”
One guideline both parties agreed on was redrawing the 12th District. Mapmakers are to “make an effort to draw it in a shape judges won’t consider serpentine,” Lewis said.
Blue said that was a good start, although there were no details about what a new 12th District might look like.
“I’m glad after two decades of drawing maps there’s something we can agree on,” Lewis said.
The other criteria the committee approved included drawing districts with populations as equal as practical, making them contiguous and compact (by preserving whole counties and splitting as few precincts as possible), and making reasonable efforts not to pair incumbents in new districts.
Republican members told Democrats on the committee that the Democrats could draw their own maps, if they want, and authorized payment for mapmakers on both sides. After the meeting, Blue said he didn’t know whether there was enough time to pull together their own version.
A choice between forcing millions of North Carolinians to vote in yet another election under the unconstitutional enacted plan and taking the administrative steps necessary to hold a constitutional election ... is no choice at all.
Marc Elias, attorney for plaintiffs
In Washington, at least an hour and a half before their 3 p.m. deadline, attorneys for the challengers of the 2011 redistricting plan submitted their opposition to halting the impact of the three-judge panel’s ruling. They argued that two elections already have occurred in the racially gerrymandered districts and that any more would do more harm.
“Simply put, a choice between forcing millions of North Carolinians to vote in yet another election under the unconstitutional enacted plan and taking the administrative steps necessary to hold a constitutional election in 2016 – including delaying the congressional primary election as necessary – is no choice at all,” wrote Marc Elias, an attorney representing David Harris, a Durham voter, and Christine Bowser, a Mecklenburg County voter, who successfully challenged the maps for the 1st and 12th districts.
It was unclear how quickly a decision would come from the Supreme Court. Roberts hears requests for emergency stays from the circuit that includes North Carolina, and he can make a decision on his own or refer the issue to the full court. It has been his tradition recently to refer such requests to the court. But since the death of Justice Antonin Scalia on Saturday, some legal analysts have questioned whether he would do that.
If there is a 4-4 split on the high court, the ruling in the lower court stands as if the justices had not heard the case.
Also on Tuesday, attorneys representing the NAACP in other North Carolina redistricting lawsuits asked the high court for an opportunity to file a “friend of the court” brief, in which they, too, would oppose moving ahead with the March 15 primary using maps that have been found unconstitutional.
If the contingency mapmaking process continues this week, the committee could meet Wednesday to approve the maps and send them to the full General Assembly for votes on Thursday and Friday.