Federal judges announced their plans on Thursday to ask a Stanford University law professor to look at nine North Carolina legislative districts as they weigh the constitutionality of election maps adopted in August.
The news came in an order filed in federal court by the three-judge panel asked to decide whether the new maps correct 28 districts drawn in 2011 and later found to be unconstitutional racial gerrymanders.
The judges raised questions about seven state House districts and two state Senate districts that “either fail to remedy the identified constitutional violation or are otherwise legally unacceptable.” One Senate district was in Guilford County; the other was in Hoke and Cumberland counties. The House districts were in Wake County, Mecklenburg County and Guilford County.
The judges had asked attorneys for the Republican lawmakers and the voters challenging the new maps to work together to come up with a list of three people they could agree on to take on the map drawing if the judges decided the court should wade into the redistricting process.
But the attorneys informed the judges last week that they could not agree on any names.
Judge Catherine Eagles informed the attorneys in the order that Nathaniel Persily, who has helped draw districts for New York, Maryland, Georgia and Connecticut, would review North Carolina’s new legislative maps and possibly help the judges draw new lines for 2018.
Persily will be paid $500 an hour, which the judges described as half his typical hourly rate. The filing period for state legislative races is set to begin in February.
“If any party has grounds to believe that Professor Persily has a conflict of interest which would disqualify him from serving as Special Master or is otherwise objectionable,” the judges said, the attorneys should file an objection within two business days. Any objectors may suggest a different mapmaker, the judges added.
Anita Earls, executive director of the Southern Coalition for Social Justice, said the challengers she represents are “hopeful that this process will result in fair districts for all North Carolinians.”
“It has been shown time and again that the state legislature refuses to draw fair districts that comply with the law,” Earls said in a statement.
Efforts to reach Republican legislative leaders were not immediately successful on Thursday.
Persily’s research and writings
Persily 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.
Before joining the Stanford faculty, Persily worked at Columbia University and the University of Pennsylvania.
Persily has been quoted recently on law that could apply to the investigation into Russian interference in the 2016 elections and whether there was collusion with the Donald Trump campaign. In 2015, his opinion piece titled “’One person, one vote’ isn’t broken and the Supreme Court shouldn’t fix it” was published in The Washington Post.
In October 2016, Persily co-wrote a piece with Jon Cohen, the chief researcher for SurveyMonkey, titled “Americans are losing faith in democracy — and in each other.”
In an article by Emily Bazelon on the state of gerrymandering that ran in The New York Times Magazine on Aug. 28, Persily talked about the difference between racial gerrymanders and partisan gerrymanders and the role that Anthony Kennedy, a U.S. Supreme Court justice, could play in lawsuits challenging redistricting plans.
In a decision that struck down two of North Carolina’s congressional districts as unconstitutional racial gerrymanders, Kennedy dissented in part and joined conservative justices to argue that North Carolina packed the voters not because they were black but because they were Democrats. ‘‘Maybe a persuasive argument to Kennedy now is, ‘O.K., we’ve been fighting over gerrymanders through the poisonous lens of race,’ ’’ Persily was quoted as telling The New York Times. ‘‘ ‘We’d be better off calling them what they really are — partisan gerrymanders.’ ’’
Republicans evaluate the order
Democrats were quick to weigh in on the judges’ decision.
“Legislative leaders had an opportunity to fix their unconstitutional legislative maps,” Ford Porter, a spokesman for Gov. Roy Cooper, said in a statement. “Instead they dragged their feet, held sham hearings, and passed new maps intended to rig elections in their favor. Today’s announcement that the court has appointed a Special Master who could redraw legislative districts is a positive step to ensuring fair elections in North Carolina.”
Republicans were not as quick to respond.
“Folks are still processing the order,” Dallas Woodhouse, executive director of the North Carolina Republican Party, said mid-afternoon. “Once we’ve evaluated it, we might have something to say.”
About an hour later, Rep. David Lewis, a Harnett County Republican, and Sen. Ralph Hise, a Mitchell County Republican, responded to the order as chairmen of their respective chambers’ redistricting committees. They maintain that race was not considered in the drawing of the new districts and added that they will further explore other options in court.
“Similar to this same federal court’s order for a special election in North Carolina that the U.S. Supreme Court reversed, this unusual and vague order provides absolutely no legal or factual basis for objecting to the new maps, while also potentially delegating the legislature’s constitutional authority to draw districts to a lone professor in California with no accountability to North Carolinians,” Hise and Lewis said in a joint statement. “Being provided only two days to respond to such a strange order that could seize a fundamental right from the people of North Carolina and hand it to a single person on the other side of the country is an outrageous and extraordinary violation of the principles of federalism and our state’s sovereignty.”