Federal judges on Thursday asked attorneys for North Carolina lawmakers and challengers of election maps adopted last month to agree on a list of three people or organizations who could draw new districts in case they rule against legislators.
The order requesting the names by next week came almost an hour after a hearing in which the judges raised many questions about the intent of lawmakers when they adopted new lines for state House and Senate districts last month after being ordered to correct unconstitutional gerrymanders.
"In order to avoid delay should the court decide that some or all of the plaintiffs' objections should be sustained, the parties are directed to confer and to submit the names of at least three persons the parties agree are qualified to serve as a special master," the order states.
Judge James Wynn, a Barack Obama appointee to the U.S. 4th Circuit Court of Appeals, raised the idea several times during the hearing on Thursday in a Greensboro federal courtroom.
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"Why is it not the best thing for this court to bring in a special master," Wynn asked attorneys arguing before him and two other federal judges.
If the attorneys cannot agree on a list, the judges alerted the parties they might appoint someone without any input from either side.
The case is being watched by political and fair elections groups across the country.
North Carolina has been described in one court order by the three judges as one of the most gerrymandered states in the country.
Wynn, Judge Catherine Eagles, an Obama appointee to the U.S. Middle District of North Carolina, and Judge Thomas Schroeder, a George W. Bush appointee to the same district, ruled last year that 28 of the state House and Senate districts drawn in 2011 were unconstitutional racial gerrymanders.
Black voters, the judges concluded, had been packed into districts to weaken their overall influence across the state.
Republicans dominate both chambers of the General Assembly, holding 74 of the 120 House seats and 35 of the 50 Senate seats. Their numbers allow them to override vetoes by Democratic Gov. Roy Cooper.
After the General Assembly adopted new districts to comply with the judges' court order, just 10 of the 50 new Senate districts and 19 of the 120 new House districts would have been competitive in the 2016 elections, according to a News & Observer analysis.
Republican lawmakers who shepherded the process insisted that race was not considered in the redrawing of the maps, hoping to avoid further claims in court that race played too dominant a role in the crafting of the new lines.
Just because legislators repeated over and over last month that race was not a consideration in drawing new electoral maps does not make it so, challengers told judges on Thursday.
Edwin Speas, a Raleigh attorney representing voters who contend the new districts continue to illegally pack black voters into districts in Cumberland and Guilford counties, weakening their overall influence, pointed out that lawmakers used the same mapmaker to draw the maps in 2011 and 2017.
Speas and Anita Earls, head of the Southern Coalition for Social Justice, argued that race had to be considered in correcting the 2011 maps to make sure the gerrymandering did not persist.
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.
"They went beyond the court order," Earls told the judges on Thursday.
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.
Throughout the hearing, the judges posed many questions about how involved the courts should get in what, when done within the bounds of law, should be a legislative process.
"I feel kind of caught in the middle," Schroeder said, noting that the U.S. Supreme Court had not yet set bounds to how far lawmakers across the country could redistrict to partisan advantage.
He questioned whether the challengers were putting the judges in a position of ruling on political contests.
"That situation is an uncomfortable position to be in," Schroeder said.
"All maps have political consequences," Earls said.
Later in the hearing, though, Schroeder questioned Strach about how lawmakers could claim that race had not been considered when Hofeller used previous election results to help draw the lines.
"How is the use of that criteria not a proxy for race?" Schroeder asked Strach.
African-American voters typically lean Democratic. In previous testimony, witnesses for the challengers told the judges that it is commonly known where the predominantly black neighborhoods are, and even without data breaking down population by race a mapmaker would have a good idea which districts included large clusters of minorities.
Wynn took the questions further to ask about Republican leaders' decision to hire Hofeller, who had racial data when he drew the 2011 maps. Lawmakers said he used that information in 2011 to comply with the Voting Rights Act.
This time, Strach said, the mapmaker had no racial data on his screen when drawing new lines.
"Is it your contention that he simply ignored it?" Wynn said.
"There is no evidence, none what so ever," Strach said, showing that Hofeller used race.
"Speculation to the contrary is not evidence."
Eagles noted that none of the Republican lawmakers had provided sworn statements or come to testify at the hearing to the assertions that race was not considered.
"Your client could come in and you could offer an affidavit, which you didn't do," Eagles said.
Rep. Darren Jackson, a Wake County Democrat, and Rep. Pricey Harrison, a Guilford County Democrat, attended the hearing.
Mark Coggins, an aide for Rep. David Lewis, a Republican from Harnett County, was at the hearing.
Harrison spoke with reporters outside the courthouse afterward.
"I got the sense that the judges are skeptical of the maps," Harrison said as she welcomed the prospect of an independent mapmaker correcting the gerrymanders. "I've been advocating for independent redistricting. The partisan gerrymandering is diluting the vote of our North Carolina voters."