A two-week long trial about whether Republican lawmakers violated the constitution when they drew voting maps to maximize their partisan advantage will come to an end today.
The Wake County Superior Court three-judge panel likely won’t make a decision for a least a few weeks after hearing mostly complex testimony from expert witnesses that delved deep into the weeds of North Carolina redistricting.
John Branch, an attorney for the intervenors — a group of Republican voters — commenced a direct examination of Michael Barber, an assistant professor of political science at Brigham Young University, late Thursday afternoon.
Barber spoke mostly about his background and then offered some rebuttal to the testimony of one of the plaintiffs’ expert witnesses.
A bombshell ruling
Earlier in the day, the three-judge panel — Judges Paul Ridgeway, Alma Hinton and Joseph Crosswhite — delivered a bombshell decision to strike testimony from an expert witness for GOP lawmakers in the case, which could have implications in other judicial proceedings.
Douglas Johnson, a research fellow at the Rose Institute of State and Local Government in Claremont, Calif., testified that deceased GOP mapmaker Thomas Hofeller’s draft 2017 legislative maps were dramatically different than the maps that lawmakers ultimately enacted.
He was trying to prove that Hofeller hadn’t drawn the majority of the state’s 2017 legislative maps before the public redistricting process took place, something one of the plaintiffs’ experts testified had in fact occurred.
Johnson admitted though, during cross examination, that his research was inaccurate. In the data he used to show big changes to the enacted House map from the draft Hofeller map, he omitted 11 districts in his report that showed almost 100 percent overlap between the two maps. In some instances, he would include districts with low overlap percentages in one county grouping, but not the districts in that same grouping that had a high overlap percentage.
In a similar analysis to maps produced by Common Cause North Carolina, though, Johnson included some of those high overlap districts.
When confronted with the inaccuracies during his cross examination, Johnson could not say what happened. He said he had been working late and had possibly made some coding errors.
“Sitting here today, you cannot tell the court your numbers are correct?” asked Daniel Jacobson, an attorney for the plaintiffs who cross examined Johnson.
Johnson responded, “I can tell you the idea is true.”
His inaccuracies produced overall percentages that showed Hofeller’s draft maps were more similar to the Common Cause maps than they were to the enacted maps.
That finding has been key to many of the legislative defendants’ court filings and has served as a line Republican lawmakers use when talking about the Hofeller files to the press.
Jacobson displayed during cross examination a News & Observer newspaper article quoting Pat Ryan, a spokesman for Senate President Pro Tem Phil Berger, making the same claim. Johnson confirmed that he provided the information to Berger’s office and that it was based on his flawed analysis.
“I probably owe Ryan an apology,” he said on the stand.
Johnson also admitted during the cross examination that his findings that Hofeller moved a large percentage of people around in the enacted 2017 Senate legislative map compared to his draft map was based on unweighted population calculations that should have been weighted. That error ultimately produced another unreliable statistic.
Jacobson asked the court to strike all of Johnson’s testimony from his direct examination because of his inaccurate calculations.
“Incorrect numbers can’t possibly go to weight [of this case],” he argued. “They’re just wrong.”
Patrick Lewis, an attorney for the legislative defendants, told the court that if there were some calculation errors, they didn’t require all of Johnson’s testimony to be struck. He tried to argue for Johnson’s findings regarding the Senate to stay in.
The three-judge panel returned to their chambers to consider the arguments and ultimately decided to strike all of Johnson’s testimony comparing Hofeller’s draft 2017 legislative maps to the enacted maps. They also struck testimony comparing Hofeller’s maps to the Common Cause maps.
Johnson has been the only expert the legislative defendants’ have presented thus far in the trial who has rebutted the findings that Hofeller drew most of the 2017 enacted maps before the official redistricting process took place.
If that finding remains at the conclusion of the trial, it could open a pathway back to the federal court. The legislative defendants have been accused of lying to the federal district court in North Carolina v. Covington, a racial gerrymandering case, by convincing the panel of judges there to not order a special election because the General Assembly hadn’t had enough time to redraw the maps.
If proven, the federal court could sanction the legislative defendants in Covington. Such a development also likely wouldn’t bode well for legislative defendants in a separate lawsuit currently pending in the state Court of Appeals in which the NAACP is challenging the Republican supermajority’s power to enact two constitutional amendments, one implementing a voter ID law and another implementing a tax cap.
GOP lawmakers defend and attack
Other witnesses who have testified for the legislative defendants during the Common Cause trial include two current lawmakers, three other experts and Raleigh attorney and former legislative staffer Bill Gilkeson (who was subpoenaed to be there).
House and Senate Majority Leaders Rep. John Bell (R-Greene, Johnston, Wayne) and Sen. Harry Brown (R-Jones, Onslow) both testified about representing constituents regardless of their party preference and reaching across the aisle to foster bipartisan policy.
“I represent a lot of Democrats. Personally, I am a Republican,” Bell told the court Wednesday. “I am well aware that without Democratic support and unaffiliated support, I would not be elected.”
He described members of his party as falling left, right and center of Republican ideology and compared caucusing to “leading a wheelbarrow full of frogs trying to keep everybody calm.”
Kate McKnight, an attorney for the legislative defendants had Bell identify potentially competitive races for next year, and one of them was Rep. David Lewis’ (R-Harnett), a legislative leader in redistricting.
When pushed during cross examination to say whether he knew if Lewis wasn’t planning to run for reelection, he claimed confidentiality and then later explained that there were a number of factors that could make a race competitive.
Lewis did not return an email Wednesday from Policy Watch asking if he planned to run for reelection in 2020.
Brown testified for the defendants Thursday and said just because he is in the majority doesn’t mean all of his legislation gets passed. He used his efforts to pass a wind turbine moratorium as an example — it passed the Senate, he said, but will die in the House.
He was questioned during cross examination about his support for redistricting reform when he was in the minority, but said he was just making a statement.
“We all knew at this point that this bill had no chance, that it would go nowhere,” he said of a 2007 redistricting reform measure.
When he was asked about supporting a redistricting reform bill again in 2009, he gave a similar response and said a lot of Republican lawmakers were signing on to it out of respect for the late Sen. Hamilton Horton Jr., who believed in the issue.
Gilkeson testified Wednesday about helping Democrats draw alternative maps in 2017. He said he discussed racial data and partisan data with lawmakers during the process, but claimed attorney-client privilege with respect to multiple questions.
Both Lewis and Sen. Ralph Hise (R-Mitchell) criticized Gilkeson’s testimony Thursday on Twitter and via a press release.
“After having gone through years of personal attacks from the Dems, I find this hypocrisy repellent. #ncpol,” Lewis tweeted.
The other expert witness who testified Thursday was Trey Hood, is a professor of political science at the University of Georgia. He continues to offer expert testimony rebutting plaintiff expert findings that the 2017 legislative plans were partisan outliers.
Under cross examination, Hood said he believes the political party in charge of redistricting will draw the maps in their own favor, but that it’s not his job to decide when it’s constitutional or not.
It’s not clear how many more witnesses are expected to testify today, but the trial is set to conclude by 5 p.m. No matter what the outcome in the case, either losing party will likely appeal to a higher court.
For live updates during the conclusion of the trial, follow Melissa Boughton Twitter at https://twitter.com/mel_bough.