The federal judges reviewing election maps for N.C. General Assembly candidates have questions about districts in Guilford, Hoke, Cumberland, Wake and Mecklenburg counties and have asked a Stanford University professor to draw new lines for the court by Dec. 1.
The judges — Catherine Eagles and Thomas Schroeder of the U.S. Middle District of North Carolina and James Wynn of the 4th U.S. Circuit Court of Appeals — rejected a request by state lawmakers to give them another chance to draw the lines.
“The State is not entitled to multiple opportunities to remedy its unconstitutional districts,” the judges said in their order released Wednesday.
In a ruling last week, the judges announced their plans to tap Stanford University professor Nathaniel Persily to help correct longstanding unconstitutional racial gerrymanders that have played a part in three election cycles since 2011, when Republicans gained control of the General Assembly and redrew legislative lines.
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Without ruling on the new maps yet, the judges instructed Persily to focus on Senate districts in Hoke and Cumberland counties and Guilford County, and House districts in Wayne, Sampson, Wake and Mecklenburg counties. The judges acknowledge that correcting problems in Wake and Mecklenburg counties might lead the mapmaker to other districts beyond those challenged.
In 2016, Eagles, Schroeder and Wynn ruled that 28 of North Carolina’s legislative districts were unconstitutional racial gerrymanders. The U.S. Supreme Court unanimously upheld the finding in June, and lawmakers waited until Aug. 30 to adopt maps that they contend correct the problematic districts.
The voters who challenged the 2011 districts contend that the 2017 districts still have problems.
The challengers contend that legislators failed to correct racial gerrymanders in a Senate district in Cumberland and Hoke counties, a Senate district in Guilford County and a House district in the same county, and a House district in Wayne and Sampson counties.
They also argue that eight districts were drawn unnecessarily in the middle of the decade, including five districts in Wake and Mecklenburg counties. That, the challengers say, violates the state Constitution, which calls for lines to be tweaked every decade to reflect changes in the population found by the census.
Phil Strach, the Raleigh attorney representing the lawmakers, in the 4 1/2 hour hearing argued that the new maps followed the redistricting criteria set out by the General Assembly.
Lawmakers wanted counties to remain undivided among districts as much as possible. When a county needed to be divided, Strach argued, the goal was not to split precincts.
Another objective, Strach said, was to protect incumbents by keeping them in districts where they would be in a position to be re-elected.
But the challengers and judges raised questions about such a goal, particularly when some of the incumbents might have benefited from the unconstitutional maps.
Earlier this week, Strach raised an objection by lawmakers to the appointment of Persily. Not only did he argue that an appointment was premature since the judges had not yet issued a ruling on the new districts, but he raised questions about comments that Persily had made in opinion pieces and news articles about redistricting and the North Carolina cases.
“The Court has considered those objections and overrules them,” the ruling states.
With the period to file for the 2018 elections set to open on Feb. 12 and close on Feb. 28, the judges told the lawmakers and challengers that they expect to hold a hearing in early January.
Persily, who has helped draw districts for New York, Maryland, Georgia and Connecticut in court-ordered processes, is the James B. McClatchy professor of law at Stanford, a post named for the late publisher and board chairman of the company that owns The News & Observer and The Charlotte Observer.
His research focuses on the law of democracy, and addresses such issues as voting rights, political parties, campaign finance and redistricting. He writes for scholarly publications and popular media.
The judges have given Persily, who will be paid $500 an hour, half his hourly rate, the leeway to hire researchers and to meet with both parties if he chooses.
“If time permits and the Special Master would find it helpful, he may publicly release preliminary maps or plans and convene a hearing, meeting, or informal conference to evaluate whether the preliminary maps meet the criteria set forth herein or raise unanticipated problems,” the court order states.
A spokeswoman for the state Senate and House redistricting chairmen, Sen. Ralph Hise and Rep. David Lewis, issued a statement critical of Persily’s appointment and its timing.
“Less than 24 hours after receiving final input from all parties, the court has issued a lengthy order to seize the constitutional and sovereign right to draw districts from North Carolina’s elected representatives and instead hand it to an unelected California college professor with clear conflicts of interest,” spokeswoman Amy Auth wrote. “We are disturbed the court has apparently planned all along to achieve its preferred political outcome and are reviewing our legal options.”
After drawing the maps, Persily may also consider the General Assembly’s objective of protecting incumbents, according to the order.
“After redrawing the districts, in view of the policy decision by the General Assembly that efforts to avoid pairing incumbents are in the interest of North Carolina voters, the Special Master may adjust district lines to avoid pairing any incumbents who have not publicly announced their intention not to run in 2018, but only to the extent that such adjustment of district lines does not interfere with remedying the constitutional violations and otherwise complying with federal and state law,” the order states.