Politics & Government

Did NC lawmakers look at data banned by gerrymandering ruling on Day 1 of redraw?

Gerrymandering in North Carolina

The News & Observer's Will Doran explains gerrymandering in North Carolina, which is the subject of a lawsuit in state court.
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The News & Observer's Will Doran explains gerrymandering in North Carolina, which is the subject of a lawsuit in state court.

The private legal team for GOP lawmakers threw a wrench into North Carolina’s new redistricting process late Monday, when they appeared to improperly share sensitive information with lawmakers and legislative staffers.

The fallout caused the House redistricting committee meeting to slow its effort to choose maps. The committee took some minor votes on the process Tuesday night but left bigger decisions for later in the week.

“At this time we’re doing the best we can,” Republican Rep. David Lewis, the top House redistricting official, said before wrapping up Tuesday’s morning meeting, as House members complained about the uncertainty.

The delays are significant because of the legislature’s fast-approaching deadline to approve new maps for a number of state legislative districts that were ruled unconstitutional last week.

The legislature has barely more than a week left, until Sept. 18, to redraw the districts found to be unconstitutional. If lawmakers fail to pass acceptable maps in time, the judges wrote in their order, it could result in the state’s 2020 primaries being rescheduled.

Lottery ball decides

The problem isn’t affecting the Senate’s redistricting efforts. The potentially improper emails don’t appear to have been sent to senators.

Tuesday evening, the Senate moved ahead with choosing maps — by bringing in officials and a machine from the North Carolina lottery. Republican leaders said that by randomly drawing a lottery ball that corresponded to a map, they were taking political biases out of the process.

But some advocates opposed that idea. Allison Riggs, the top attorney for the Southern Coalition for Social Justice, argued unsuccessfully at the U.S. Supreme Court earlier this summer, before the state trial over the legislative lines, that the state’s congressional lines were also unconstitutional. She was at the legislature on Tuesday and posted a video of the lottery drawing on Twitter.

“So this just happened,” Riggs wrote. “The Senate Redistricting Committee just brought in freaking lottery officials to randomly draw a map to satisfy their duty to remedy constitutional violations in the map they drew in 2017.”

In the House saga, the challengers’ attorneys sent data Monday night that they think should be used. But since that data is different from what the GOP lawyers sent previously, Lewis said lawmakers need to wait to make sure they have the proper set of data.

“Let’s get the plaintiffs and defendants on the same page on what’s before us, at least, and then we can move forward,” he said.

Calling for an investigation

The issue is that when the judges overturned the maps last week, they ordered the legislature to draw new maps without taking any partisan data or political considerations into account. But Monday afternoon, as NC Policy Watch first reported, a lawyer who represented Republican lawmakers in the court case emailed partisan data to members of the House redistricting committee, as well as to legislative staffers.

The data in question, according to lawyers for the other side, is a political breakdown of maps created by Jowei Chen, a redistricting expert from the University of Michigan who testified against the legislature at the gerrymandering trial this summer.

“That information is exactly the information that shouldn’t be considered in this process but has now been provided to the entire House Redistricting Committee, apparently, and half a dozen legislative staff,” Stanton Jones, a lawyer for the plaintiffs who won the case, said Monday night.

That complicates the redistricting process because legislators had said earlier Monday — before anyone got the partisan data on Chen’s maps — that they wanted to pick from among his maps to find a baseline map that they would then tweak.

Since the court has already recognized Chen as an expert, and since he testified against the previous Republican-drawn maps at the trial, Republican lawmakers said using his maps seemed like a reasonable plan.

Much of Chen’s research into North Carolina’s gerrymandering is public, since it was used as evidence during the trial. But the partisan breakdown of his maps was not. In addition to that partisan data, the email also contained what Jones said is confidential coding information belonging to Chen that was supposed to have been protected by a court order. He said the email was “obviously just wildly inappropriate.”

On Monday, the top Democrat in the House, Rep. Darren Jackson, was telling members of his party not to open the email or the data in it. Lewis announced at Tuesday’s morning meeting that he hadn’t opened the links, and that the link was quickly shut down by the lawyers. Legislative staffers also didn’t look at any of the data, Lewis said.

Tuesday night, Democratic Rep. Robert Reives said there were more than three dozen people on that email and asked what would be done to get them all to confirm whether they had seen the data. Lewis said he’d think about it overnight and give an answer Wednesday.

Jones, on Monday night, had said there must be steps taken to ensure nobody saw anything improper. That information could determine whether lawmakers can proceed with their plan to use Chen’s maps, he said, or if doing so might invite further legal troubles.

“I think that efforts should be taken to investigate whether anyone has clicked that link and accessed information inside of it,” Jones said. “Without knowing whether anyone on either the legislative staff or any of the numerous members who are copied on that email opened it, I don’t know whether it’s actually prejudicial to the process or if it was just a mistake that got corrected quickly.”

The lawyer who sent the email, Alyssa Riggins, did not respond to a request for comment to explain what happened. Neither did her law partner and co-counsel in the case, Phil Strach, who frequently represents the legislature in court.

What happens next

On Tuesday, as the House considered the implications of the delay while the lawyers figure everything out, Democratic Rep. Deb Butler suggested that the redistricting committee go ahead with other work, such as establishing the methodology it will use to draw the maps whenever it has the final data.

But Lewis said that’s getting too far ahead of themselves.

Chen assigned his 1,000 maps various nonpartisan scores based on factors like how compact they are, and lawmakers had originally planned to automatically eliminate the bottom 75% of the maps, then do a closer analysis of the remaining several hundred maps to find their base map.

But Lewis said he wants to make sure that the lawyers on both sides in this case have everything figured out before moving forward any more.

“Step one is to make sure we have the right data before us, and step two is to figure out how to use that,” he said.

This redistricting process is happening with unprecedented levels of transparency, because the judges ordered it. All the redistricting meetings have both audio and video feeds, and any map-drawing has to happen in either the House or Senate redistricting rooms, which are being live-streamed at https://www.ncleg.gov/Video/Redistricting2019.

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