[Editor’s note: The issue of North Carolina’s unconstitutional electoral maps has been the big story in Raleigh in recent days. As Policy Watch reporter Melissa Boughton detailed late last Friday, a three-judge federal District Court panel has announced that it intends to act promptly once the U.S. Supreme Court transfers jurisdiction over a case involving racially gerrymandered legislative maps. Unfortunately, state lawmakers seem not to be interested in fast action – having rejected Governor Cooper’s call for a special session on the subject last Thursday in party-line votes. In the essay below (which was written prior to the legislature’s refusal to act) veteran state politics observer Steve Ford explains much of the recent history of the redistricting fight and where North Carolina ought to be headed.]
What a relief and cause for celebration it would be if North Carolina’s legislative chiefs collectively slapped their brows and exclaimed, “Oh, now we get it! We’re not allowed to draw voting districts on the basis of race! We’ll get busy right away and fix the problems!”
After all, that wouldn’t seem too much to ask – now that the U.S. Supreme Court has made it plain it won’t tolerate the racial gerrymandering that has infected the state’s congressional and legislative district maps.
Surely Democratic Gov. Roy Cooper – who on June 7 called a special legislative session in response to the Supreme Court’s findings – would be glad to see the General Assembly getting on board.
Cooper wants the Republican-controlled legislature to redraw maps for state House and Senate districts so as to eliminate racial gamesmanship that has hurt his party even while it’s infringed on the rights of African-Americans. And he wants it done quickly, arguing that too much damage already has been done.
“We have fought for too long over these maps,” Cooper told reporters. “Let’s put an end to it and create districts that are fair for North Carolina voters. The sooner we start, the sooner we can end the bickering and focus on important policies and priorities.”
The Supreme Court recently has made decisions in three separate lawsuits challenging the legislature’s redistricting schemes – decisions that could have big consequences across the landscape of North Carolina politics.
Its latest ruling, on June 5, upheld a lower court’s rejection of several legislative districts devised back in 2011, when boundaries were supposed to be adjusted to reflect the previous year’s census. Republican leaders followed a strategy that involved maximizing the number of districts where a majority of voters were African-American.
Because black voters in recent times have leaned Democratic, the upshot was to concentrate Democratic strength in those “majority-minority” districts and dilute it elsewhere, to the GOP’s advantage. But another consequence of the gerrymandering was to deprive black voters of an equal chance to influence an election’s overall outcome. The strategy’s success as a partisan weapon became clear as Republicans rolled up outsized margins in both legislative chambers.
Of the 120 House districts, a three-judge federal trial court last year found 19 to be unconstitutional because of their racial make-up. The tally in the Senate was nine out of 50. The judges ordered legislators to draw new districts and eventually set a special election for this coming fall, a year ahead of schedule.
In a sense it was a fairly drastic remedy. Some legislators would end up with one-year terms instead of the customary two, and the state’s election machinery would have to be cranked up for an extra cycle.
Yet the judges – no doubt mindful that the invalidated district maps had been used during the elections of 2012, 2014 and 2016 – said essentially that enough was enough.
“While special elections have costs,” they said, “those costs pale in comparison to the injury caused by allowing citizens to continue to be represented by legislators elected pursuant to a racial gerrymander.”
So would legislators whom the gerrymandering was intended to benefit – and who actually did benefit, as their power was enhanced – salute and follow the trial court’s directive? No such luck.
First, they persuaded the Supreme Court to stay the order that new districts be drawn by this past March. Meanwhile they appealed the trial judges’ overall finding that had nixed the current maps.
That contributed to a traffic jam of North Carolina redistricting lawsuits piling up at the court in Washington (not a strange phenomenon, actually, since the state has been a fount of such lawsuits for the better part of 30 years as Republicans and Democrats have jockeyed for advantage).
For the justices, their first order of business was to address claims of racial gerrymandering at the congressional district level. A May 22 ruling upheld lower court findings that two of the state’s 13 districts – which are supposed to be more or less equal in population –were drawn so as to be majority-black when there were no valid grounds for doing that.
The ruling was unanimous with respect to the contorted 1st District, which sprawls from Durham across counties and communities to the east. The 12th District, with its infamous snake configuration along I-85 between Greensboro and Charlotte, was invalidated by a 5-3 margin.
The legislature’s argument in a nutshell was that it had to push the districts’ African-American voting population over the 50 percent mark to comply with the federal Voting Rights Act, which safeguards against the dilution of black voting strength.
But the court said that argument hinged on a flawed interpretation of the Act and of precedents set in other cases. It also said that race couldn’t be used as a proxy for party affiliation as legislators sought to boost their own party’s chances.
The ruling sent a strong signal that the state’s legislative maps also would fail to pass muster. And with the high court’s June 5 action, that’s just what happened. This time, the high court didn’t even bother to explain its reasoning – sort of along the lines of “Read our lips!”
There was a twist to the outcome, however. In an unsigned “per curiam” opinion (i.e. “by the court”), the justices said they weren’t convinced the trial court’s remedy of special legislative elections this year was the way to go.
“Although this Court has never addressed whether or when a special election may be a proper remedy for a racial gerrymander,” they said, “obvious considerations include the severity and nature of the particular constitutional violation, the extent of the likely disruption to the ordinary processes of governance if early elections are imposed, and the need to act with proper judicial restraint when intruding on state sovereignty.”
The lower court had been too “cursory” in weighing those factors against the harm being done to voters, the justices said – directing their subordinates to take another look.
Illegal too long
Even with a requirement to lay out the pros and cons of early elections in more detail, the trial court panel appears to have room to affirm its previous finding that further delay basically adds insult to injury.
Indeed, allowing the current legislative districts to remain in effect until the next regularly scheduled elections in 2018 would seem to be an instance of justice delayed, justice denied. Consider how the maps drawn six years ago have helped the party in power.
Republicans have amassed legislative majorities disproportionate to their cumulative vote totals and virtually immune to vetoes by the governor, even while they’ve steered the state policy ship hard to the right with tax cuts favoring the well-off and an aversion to public investments, notably in education.
Their districting strategy has devalued the votes of many people who think these policies are wrong-headed. Democratic voters packed into districts with like-minded folks may have an easy time electing a Democrat, but that party’s legislative ranks stand to be outnumbered as Republicans rack up seats in districts from which African-Americans, especially, have been purged.
That’s been the pattern – and from the standpoint of those who advocate for social justice and equal opportunity, the sooner it’s disrupted, the better.
Advocates with those priorities have led the legal charge against the legislature’s districting schemes. And on May 30, they chalked up yet another Supreme Court win, in a case brought originally in state court to challenge both legislative and congressional maps.
The case has been up and down the judicial ladder, with the state Supreme Court twice finding no merit in complaints about the maps. Now, the justices in Washington have told the state court again to reconsider, in light of their conclusions about racial gerrymanders. The law isn’t supposed to be rendered through a partisan lens, but the Raleigh court’s recent tilt to a Democratic majority could help push it to view things in a different light.
A fairer process
This version of our tangled tale wouldn’t be complete without mentioning what amounts to a sequel to the congressional map saga. Legislators last year, acting under court order, redrew those maps ostensibly to avoid any racial criteria. They said they’d focused solely on voters’ party allegiances, with the avowed aim of maintaining the GOP’s 10-3 edge in the congressional delegation.
The courts have tolerated gerrymandering for partisan purposes. But this was a particularly brazen instance – which, in the 2016 elections, worked just as it was intended to.
Not surprisingly, the GOP gambit drew another challenge that also has gotten the Supreme Court’s attention. The lawsuit seeks to have the court, for the first time, set standards for when partisan gerrymandering goes too far. The court now has that case under consideration.
As many reform-minded folks on both sides of the political aisle recognize, the redistricting process could be carried out more fairly if it were handled by an independent panel assembled on a nonpartisan basis.
Districts could be drawn logically to respect civic boundaries and voters’ shared interests. Elected officials would find it easier to represent their constituents, and constituents would find it easier to hold their representatives accountable.
Those arguments ring loudly these days through the state capital’s corridors of power. But whatever happens in that regard, at least the courts are showing that North Carolina’s days as one of the country’s worst abusers of the redistricting privilege may be numbered. It’s an anti-gerrymandering message that for our legislators should come in loud and clear.
Steve Ford, former editorial page editor at Raleigh’s News & Observer, is now a Volunteer Program Associate at the North Carolina Council of Churches.