The best defense is a good offense, and lawmakers are trying that strategy in federal court.
Their attorneys spent Friday attacking the job of special master Nathaniel Persily, who was tasked by a federal court with redrawing several legislative districts to correct unconstitutional racial gerrymanders.
The attacks, though, didn’t work. Instead they frustrated the judges, who wondered why Republican lawmakers hired an expert to chastise Persily, rather than try to participate in his mapping process.
Persily, dressed in a navy pinstriped suit with a red tie, sat alone at a small desk at the front of the courtroom as attorneys and a fellow mapmaker criticized his work.
If the critiques bothered him, it was difficult to tell. He addressed lawmakers’ complaints head-on and explained his process thoroughly.
“I’m here to solve a problem, and I can’t solve that problem any way I want,” Persily said. “I’m not here to draw the best districting plan for the entire state.”
His job was to follow a very narrow set of instructions from a federal three-judge panel to recreate nine House and Senate districts without segregating voters by race or party — in other words, walk a tightrope in a politically charged environment.
Attorneys for the lawmakers say he failed to do his job, and that racial considerations dominated his mapmaking process. In response, they hired an expert, Douglas Johnson, a research fellow at the Rose Institute of State and Local Government in Claremont, Calif., and president of the National Demographics Corporation, to prove through alternative maps that Persily unconstitutionally used race.
Johnson alleged that Persily set racial targets of 38.4 to 43.6 percent of “Black Voting Age Population” in the districts he drew.
“The way you remedy a quota is you take the quota out … and see how things shake out,” said Phil Strach, an attorney who represents the legislature.
Strach, who is married to Kim Strach, executive director of the State Board of Elections and Ethics Enforcement, contends that Persily should have never been hired. Instead, lawmakers should have been given another chance to correct their maps if the court thought they were still unconstitutional.
The problem with lawmakers’ main accusation, Persily explained in court, is that it simply isn’t true. He noted that one House district he drew didn’t fall within the bounds of the suggested racial target; another was already in that range when he started the work.
“No racial targets were sought or, as I pointed out, even achieved,” Persily said. “What this is really about is that they don’t like the Greensboro districts.”
Persily moved Fort Bragg in Cumberland County, a major point of dispute, “not to reach a racial target but to make another district more competitive,” he said.
Allison Riggs and Edwin Speas, attorneys for the plaintiffs — voters who sued over the initial racial gerrymandering — told the court they support Persily’s maps. They said they believe he corrected the previous state and federal constitutional issues.
In her cross-examination of Johnson. Riggs interrogated him about his redistricting work in other cases and his defense against racial gerrymandering allegations.
Johnson said Black Voting-Age Population alone is insufficient to determine whether a map was racially gerrymandered. But it is a red flag to look more carefully at the districts.
When asked if he knew the BVAP of Guilford County and Greensboro, he replied “not off the top of my head.”
“So you didn’t look into that when you threw the flag at the special master’s plan either?” Riggs asked.
Johnson told Riggs he was not an expert in the neighborhoods of Greensboro.
Riggs asked him later if he thought Persily’s plan complied with the court’s order.
“I think it stumbles into another problem while complying with the court’s order,” he replied, adding that he would have told the court not to use race data at all in redrawing legislative districts.
In advocating for Persily’s maps, Riggs said the court’s job was not to “rubber-stamp” what the legislature proposed. It was the defendants’ legal responsibility to prove race was not the main factor in their maps, she said.
She said it was telling that the court did not hear from GOP mapmaker Tom Hofeller, responsible for drawing the gerrymandered maps in 2011 and redrawing them last year. Riggs alleged that Hofeller studied the state’s demographic data and created a “max Black plan.”
“We don’t know how much of that was still central to what he was doing,” she said. “I think it’s concerning.”
Riggs added that by only tweaking some of the unconstitutional districts, lawmakers didn’t fully fix the problem in their maps.
Strach argued that just because some of the lawmakers’ newly drawn districts looked similar to previous unconstitutional ones didn’t mean the legislature used race in the process.
“There is no competent evidence in the record at all that race predominated in the drawing of those districts,” he said.
Fourth U.S. Circuit Court of Appeals Judge James Wynn told Strach he was “miffed” Johnson and Persily couldn’t work together for the betterment of the state.
Under questioning from judges, Johnson said he didn’t study the legislature’s maps or Hofeller’s initial maps, which Persily worked from.
“Do you think your input would have been helpful to Dr. Persily?” Wynn asked Johnson.
“I have no idea,” Johnson replied.
Strach and Persily both declined to comment after the hearing.
Riggs said she hoped the judges would decide the case within a couple weeks.
“We need to stop the silliness and get constitutional districts,” Riggs said.
The judges seemed eager to work quickly, acknowledging the Feb. 12 filing date for legislative candidates. Until they rule, candidates in Wake, Mecklenburg, Guilford, Hoke, Bladen, Cumberland, Sampson and Wayne counties won’t know what district to file in.