Courts and Law

Redistricting 2011: A solution in search of a problem

More than a year after the state NAACP and other groups and individuals sued the state and legislative leaders, calling the Republican majority’s 2011 redistricting maps racially-gerrymandered  — after filing mounds of paper,  taking a trip to the Supreme Court for an expedited appeal that took close to nine months for a decision, and presenting slide after slide of maps resembling kindergarten scrawl —  attorneys for both sides wrapped up two days of arguments yesterday, asking a three-judge panel to grant judgment in their favor on many of the claims in the case.

And two things became clear.

Race predominated in the redrawing of voting districts in 2011. That’s pretty much an inescapable conclusion given that the Voting Rights Act requires the drawing of voting districts that create opportunities for black and other minority voters to elect their candidates of choice.

But the effort by the General Assembly, if any, to meet the spirit and the letter of the Act and supporting case law clearly missed the mark.  Instead of drawing maps to create those opportunities, the mapmakers went to extreme lengths — splitting precincts, combining counties and clawing into outlying areas — to reach pockets of African American voters and pack them into districts where they had already been electing their candidates of choice, often for years and by wide margins.

The result: whiter districts elsewhere.

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The Voting Rights Act prohibits the use of practices or procedures that limit the opportunities of minority voters to participate in the political process and elect their candidates of choice.

That’s what drove the 2011 redistricting, Sen. Bob Rucho and Rep. David Lewis said when plans were being drafted and in defense of their maps in this case.

The Act required them to draw as many “majority minority” districts  — those with a greater than 50 percent black voting population — as possible across the state, the legislators said, and that was their goal, as they said in a brief filed with the court:  “That any Voting Rights Act district established in legislative or congressional plans would be established with a Total Black Voting Age Population in excess of 50%, pursuant to the decisions by the North Carolina and United States Supreme Courts.”

“We do not think it’s a racial gerrymander to draw a 50 percent district,” said Tom Farr, one of the attorneys representing Rucho and Lewis, during arguments yesterday. “It’s not a racial gerrymander to draw districts with a consciousness of race. If that were true, your honors, all of these districts would be racial gerrymanders.”

Well, they are racial gerrymanders, countered Edwin Speas, who with Anita Earls argued the plaintiffs’ case before the panel — especially when they’re unnecessarily drawn.  During rebuttal argument yesterday, Speas directed the judges to the many maps introduced during the hearings which showed new districts cutting across precincts and shooting tentacles and appendages across counties.

“If you look at the ends of those appendages,” Speas told the court, “you’ll find a group of African Americans.”

And while drawing a 50 percent district might be one step towards compliance with the Act, it’s not the only factor to be considered, plaintiffs’ attorneys argued.  Such a district has to be drawn to create voting opportunity where it does not already exist — where, as the U.S. Supreme Court said in its 2009 Bartlett v. Strickland decision concerning the last go-round of North Carolina redistricting litigation, the majority is voting “sufficiently as a bloc  . . . to defeat the minority’s preferred candidate.”

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That simply was not the case with many of the districts redrawn by the Republican-controlled legislature in 2011.

Instead of creating minority opportunity where it did not exist, the mapmakers drew districts where opportunity had been flourishing and simply added more, pulling black voters across precinct, district and county lines to reach that 50 percent mark and beyond, up as high as 57 percent, and leaving bleached districts in their wake.

In Senate District 14 in Wake County, for example, where blacks were roughly 41 percent of the voting population before the 2011 redistricting, voters had nonetheless elected a black candidate,  Dan Blue, by wide margins in 2004, 2006, 2008 and 2010.  That voting history demonstrated that whites were crossing over to vote for the minority candidate and that the black voting population had achieved the opportunity envisioned by the Act. Despite that, the new plan upped that minority population to 51 percent by pulling black voters out of neighboring Senate District 18, splitting 29 voting districts in Senate 14 and 22 in Senate 18.

Redistricting in Senate district 14 was thus both unnecessary and, as noted by the U.S. Supreme Court in Bartlett v. Strickland, likely not constitutional.  “In areas with substantial crossover voting it is unlikely that the [parties] would be able to establish . . . bloc voting by majority voters,” Justice Anthony Kennedy wrote for the court.  “In those areas majority-minority districts would not be required in the first place.”

But the Republican-controlled legislature forged ahead anyway, redrawing lines in districts throughout the state, ostensibly to create opportunity where it already existed and turning the Voting Rights Act on its head.  Critics called the resulting maps some of the most grotesquely drawn redistricting maps ever seen.  The more than 40 districts suffering a similar fate include:

Senate District 20 in Durham County, where the black voting population was just 45 percent, but voters nonetheless elected a black candidate, Floyd McKissick, by margins of 40 or more points, in 2004, 2006, 2008 and 2010. The new redistricting plan upped that minority population from 45 percent to 51 percent, pulling black voters in from Senate District 22, leaving that district bleached and splitting 35 voting tabulation districts in the process.

House District 29 in Durham County, where the black voting population was just 40 percent, but voters nonetheless elected a black candidate, Larry Hall in 2004, 2006, 2008, and 2010, at times by margins in excess of 80 points. The new plan upped that minority population from 40 percent to 51 percent. To accomplish that, black voters were pulled from House District 30, leaving that district bleached and splitting 14 voting tabulation districts in District 29 and 12 in District 30.

House District 48, now spanning Hoke, Richmond, Robeson, and Scotland counties, where the black voting population was just 45 percent, but voters nonetheless elected a black candidate, Garland Pierce, in 2004, 2006, 2008, and 2010, at times by margins in excess of 40 points. The new plan upped that minority population from 46 percent to 51 percent. To accomplish that, the mapmakers redrew the lines pulling black voters out of House District 66 and bleaching that district, splitting 31 voting tabulation districts in House 48 and 24 in House 66.

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Senate District 21 in Cumberland County was another district where black voters were in the minority, with 45 percent, but district nonetheless elected a black candidate in 2004, 2006, 2008 and 2010 by a margin of 20 points or more.

That’s the district which Eric Mansfield, an African-American Army doctor with a practice in Fayetteville, was elected to in 2010.  The redistricting upped the minority population to 51 percent by pulling black voters from Senate District 19 and stretching as many as five tentacles around white populations in Fayetteville.  The resulting Senate District 21 now spans 350 square miles, roughly the distance from Fayetteville to Atlanta. Thirty-three precincts in the district were divided to accommodate new black voters, including Mansfield’s own street, which was divided in half.

“My district has never elected a nonminority state senator, even though minorities were never more than 45 percent of the vote,” he told The Nation in early 2012.  “I didn’t need the help. I was doing okay.”

Mansfield then ran unsuccessfully for Lieutenant Governor in 2012 and no longer represents the district, but regrets where the redistricting maps might mean.

“We’re having the same conversations we had forty years ago in the south, that black people can only represent black people and white people can only represent white people,” Mansfield said. “I’d hoped that in 2012 we’d grown better than that.”

And therein lies a constitutional violation, Anita Earls told the judges yesterday.

“Equal protection is violated if a 50 percent district is drawn where it’s not necessary.”

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