North Carolina voting rights groups and Democrats were compared to the legendary Pied Piper at the start of a highly-anticipated partisan gerrymandering trial on Monday – actors who would lure a state court with their legal flutes into a “thicket” of thorns.
“There is no need for the thicket under our current constitutional order,” said Phil Strach, an attorney for the legislative defendants. “The court should resist the flute, avoid the thicket and uphold the constitutional order by dismissing these claims.”
Opening statements in Common Cause v. Lewis were dramatic, describing two different versions of the state’s future should the court side with plaintiffs: one with fair electoral maps in which voters cast their ballots in free elections on equal terms, and one in which courts are transformed into political referees attempting to implement false notions of fairness.
“Voters are not chess pieces to be moved around on a board in some political game,” said Stanton Jones, the lead attorney for the plaintiffs. “They’re citizens of this state. They have fundamental rights under the state constitution to fully participate in choosing the representatives who govern them, and those rights deserve to be recognized and enforced.”
Jones and his clients are asking a three-judge panel in the Wake County Superior Court to invalidate the state’s 2017 legislative maps as an unconstitutional partisan gerrymander and to order new maps for the 2020 election.
The trial could last up to two weeks. Jones said the evidence they planned to put on over the next few days would show conclusively that the current maps are extreme partisan gerrymanders, and the lawmakers who enacted them did so with discriminatory and partisan intent.
“Experts will show by a host of mathematical and statistical measures that the 2017 plans are outliers,” he said. “Their extreme partisan bias is an outlier that could only be the product of partisan intent, a deliberate effort to solidify Republican political power by manipulating district lines.”
Jones also brought up Thomas Hofeller, the renowned GOP mapmaker who died last year, and said his own files would show how he gerrymandered voting districts for maximum partisan advantage.
Hofeller’s daughter turned over his digital data to the plaintiffs after his death. The files have been at the center of legal disputes over the past two months, but the court ruled late last week that 35 specific documents relevant to the case could be used at trial (though the judges can still take up evidentiary objections during trial).
“Dr. Hofeller’s files prove beyond a doubt that partisan gain was his singular objective,” Jones told the court.
Strach said the plaintiffs didn’t really have a problem with the 2017 plans. What they really want is for the court to create a new redistricting process, which would normally require legislative action or a constitutional amendment.
“Let me be clear, this lawsuit is not about protecting democracy,” he said. “It is a full frontal assault on democracy. What the plaintiffs are asking this court to do is to exercise raw judicial power, remove redistricting from the legislature and hand it over to the courts.”
The references to Hofeller, he told the court, were nothing more than an attempt by the plaintiffs to create a “boogeyman” as a sideshow to distract from the weakness of their case.
He pointed out that the lead plaintiffs, Common Cause North Carolina, didn’t even know which districts they were challenging. He said the lawsuit was more about the redistricting process than the 2017 maps, and for good reason — a previous state Supreme Court case restrains the legislature in a way that takes many political decisions off the table.
Strach criticized Common Cause for choosing litigation as the vehicle for redistricting reform.
“It’s hard to think of anything less democratic than to ask the court to do by judicial fiat what the plaintiffs have been unable to do during the political legislative process,” he said.
Common Cause was also a plaintiff in the recent U.S. Supreme Court case challenging North Carolina’s 2016 congressional maps as partisan gerrymanders. The conservative majority on the high court ruled the issue was political and therefore out of the reach of federal courts, but noted how state courts can continue to take action — Florida and Pennsylvania already have done so.
North Carolina’s is the first state partisan gerrymandering case since the Supreme Court ruling.
Part of Strach’s opening statement came from the playbook used by legislative defendants in the federal case: Courts shouldn’t get into the business of deciding political arguments, they claimed, particularly when there isn’t a standard to set or a one-size-fits-all solution.
“If the 2017 maps were supposedly a partisan outlier, where is the line between a map that is not an outlier and one that is?” he asked, adding that the plaintiffs’ experts would refuse to provide an answer. “How do you legally judge voter voting preferences? How do you know what is a fair map, politically? There is no way to know what a fair map looks like.
“The only way that you can do that is to impose by judicial fiat some notion of fairness. That would require the court to decide, essentially, how many Republicans and Democrats should be in the legislature. That is obviously a political issue, not a legal judgment.”
Common Cause NC Executive Director Bob Phillips, a longtime advocate for government reform, was the first to testify Monday and confirmed some of Strach’s assumptions. He said he did have a problem with the legislative redistricting process and that the organization lobbies for transparency, public input and keeping politics out of mapmaking.
“There has been no meaningful opportunity to pass redistricting reform at the General Assembly, and I’ve been at this for 20 years,” he said.
Phillips added during cross examination that the organization filed the lawsuit to create a better process than the one currently in use.
“It’s for the purposes of eliminating and removing this flawed process that we have,” he said.
Testimony got a little more into the weeds later in the day when Sen. Dan Blue (D-Wake) and Rep. Graig Meyer (D-Orange) testified.
They spoke about how they couldn’t break the Republican “seawall” in 2018 despite working to recruit good candidates, raising more money than Republicans and getting more than 51 percent of the overall vote.
“Running under gerrymandered maps is difficult,” Meyer said.
The lawmaker has only experienced one redistricting process at the North Carolina legislature, but he spoke about how the Republican supermajority affected his ability to represent his constituents. He noted that he never had any leverage to work with until last year, when the Democrats broke the supermajority (but not the majority).
“It’s no fun to be in the minority in the legislature,” he said.
During cross-examination, Meyer acknowledged that before Republicans were in power, the Democrats controlled redistricting since the Reconstruction era and similarly used partisan gerrymandering.
“I am opposed to the process as used by either party,” he added.
The last witness of the day was Derrick Miller, a plaintiff in the lawsuit and a registered Democrat from Wilmington. He spoke about living in a gerrymandered district and losing his fair shot at electing the representative of his choice.
“I am seeking a fair playing field,” he told the court. “I think an unfair playing field is keeping Republicans in the majority….If Republicans could win a majority on an even playing field, it would burn a lot less, and I think we all deserve that fairness.”
No matter what the court decides, the case is likely to end up at the North Carolina Supreme Court, which would have the final say on partisan gerrymandering.
The plaintiffs are trying to remedy what they believe is a constitutional violation before next year, otherwise Republicans can gerrymander themselves into power for another 10 years, which is how often redistricting takes place.
“Unless the courts step in, this will keep happening,” Jones said. “One partisan gerrymandering will lead to another in a perpetual cycle….Only the courts can end this cycle and ensure free and fair elections in 2020.”