State Politics

‘What’s the disincentive?’ to gerrymander over and over, asks judge in NC case

North Carolina’s contorted history of congressional redistricting

Federal judges recently ruled that Republicans unconstitutionally gerrymandered two North Carolina congressional districts by race. But redrawing districts to benefit the political party in power is nothing new and has been going on for years.
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Federal judges recently ruled that Republicans unconstitutionally gerrymandered two North Carolina congressional districts by race. But redrawing districts to benefit the political party in power is nothing new and has been going on for years.

While the North Carolina General Assembly considered new maps for electing its members in 2018, a panel of federal judges were in a courtroom less than half a mile away weighing the next steps for two of at least five lawsuits that have challenged redistricting plans from the past decade.

Three judges rejected a request to delay trials in two lawsuits filed last year by Common Cause and the League of Women Voters accusing lawmakers of using blatant partisan gerrymandering in 2016 to draw the districts that elect members of Congress. Those maps were drawn to correct unconstitutional racial gerrymanders.

Attorneys for the lawmakers argued that the judges should wait until after the U.S. Supreme Court rules on a case from Wisconsin which also will test the extent to which legislators across the country can draw election lines to benefit the party in power at the time. Philip Strach, a Raleigh attorney representing the Republican-led General Assembly, said a ruling in the Wisconsin case could have an impact on the North Carolina case.

U.S. District Judges W. Earl Britt, a Jimmy Carter appointee, and William L. Osteen Jr., a George W. Bush appointee, and 4th U.S. Circuit Appeals Court Judge James A. Wynn, a Barack Obama appointee, asked many questions of both sides throughout the hearing.

In North Carolina, which has been described by New York University’s Brennan Center as one of the most gerrymandered states in the country, it can be dizzying to keep up with all the redistricting challenges in federal and state courts.

Lawmakers have spent much of the past two weeks considering maps they must put forward to comply with a federal court order after a panel of judges ruled that 28 of the state’s districts used to elect General Assembly members since 2011 are unconstitutional racial gerrymanders. The judges in that case set Sept. 1 as a deadline for submitting maps that correct the problems.

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Though Wynn is one of the judges on that case, on Tuesday he was presiding in the congressional district case with Britt, who also was in Raleigh, and Osteen, who participated by speaker phone.

Wynn spoke about the challenges of redistricting cases, echoing the frustrations that many voting rights organizations have expressed about gerrymandering used by both parties and its threat to democracy. Advocates for nonpartisan redistricting have said the technology used by modern mapmakers makes it too easy for lawmakers to select their voters, instead of letting voters select their representatives.

“What is the disincentive for an entity to do this, to intentionally do something?” Wynn said, noting the case is just the latest in a series of court challenges resulting from maps first drawn in 2011.

Though the judges have not heard evidence in the case yet and have not offered their opinions, Wynn pointed out if the challengers prevailed North Carolina voters would have selected lawmakers through much of the past decade using maps including unconstitutional districts.

After the next census is completed in three years, lawmakers again will have to tweak lines to reflect population shifts.

“Basically, you spent the whole 10 years in an institution that could be held to be unconstitutional,” Wynn said. “What is the disincentive to file another map that basically will be unconstitutional, then move on to 2030.”

Wynn posed the questions while Strach was arguing to delay the case and attorneys Edwin Speas, Anita Earls and Emmet Bondurant opposed waiting any longer for a trial that had been scheduled to begin in June. The trial was delayed that month, Britt told the court, because he was hospitalized for health issues that he is now recovering from.

“It’s not your fault,” Wynn told Strach.

The courts, Wynn added, had not developed a strategy for hearing redistricting cases quickly and determining how far lawmakers could go when designing districts to benefit their party.

Attorneys for the challengers argue that when the General Assembly adopted new congressional lines in 2016 to comply with a court order, they violated voters’ free speech and equal protection rights. Rep. David Lewis, a Harnett County Republican, said at the time that lawmakers had not considered race at all when designing the lines. Instead, he said, the maps were drawn to ensure that Republicans would be elected to 10 of the 13 congressional seats in a state that is more evenly politically divided.

“We are pleased the court confirmed that our lawsuit against partisan gerrymandering will proceed,” Common Cause director Bob Phillips said after the hearing on Tuesday. “This is a potentially landmark case that could finally end gerrymandering in North Carolina and may have reverberations across the country. The lawsuit is a crucial step toward protecting the constitutional right of citizens to have a voice in choosing their representatives.”

Anne Blythe: 919-836-4948, @AnneBlythe1