The North Carolina General Assembly is embarking on a historically transparent redistricting process without the use of partisan election data, but it’s been slow-going and not without snags.
Lawmakers were ordered by a court to redraw  House and Senate districts after a three-judge panel found they used unconstitutional partisan gerrymandering to harm Democrats when they created the 2017 legislative maps.
Redistricting committees from both chambers met for the first time Monday. Lawmakers mostly agreed to use baseline maps from Jowei Chen, an expert for the plaintiffs  in Common Cause v. Lewis, the litigation dictating the process.
Chen created 2,000 simulated maps for both the House and the Senate in the two-week Common Cause trial — 1,000 maps for each chamber using only traditional redistricting criteria and 1,000 maps using those criteria along with information that took incumbency protection into account.
Partisanship information improperly disclosed
The major snafu Monday came after lawmakers requested Chen’s maps from both their own counsel and the plaintiff’s counsel.
The plaintiffs agreed to send over the specific files from Chen but not until Monday night, since it would take some time to package the correct information without partisan data for remedial redistricting purposes.
In the meantime, Ogletree Deakins — the law firm for the defense in Common Cause — sent Chen’s original files from the trial, which contained extensive partisan data, including the partisan scoring of every simulated map, according to an email  the plaintiffs’ lead attorney Stanton Jones sent to the legislature.
The email also contained Chen’s computer code, which has been designated confidential by the three-judge panel presiding over Common Cause.
The court expressly prohibited lawmakers from using or considering any partisan data at all in the remedial process.
Jones asked legislative staff to immediately delete the email containing the partisan data and to destroy the data if they already downloaded it.
He did not know Monday night if plaintiffs would bring the email to the attention to the court.
The email from Ogletree Deakins was sent just after 4:20 p.m. Monday, and it was sent to all members of the House Redistricting Committee in addition to legislative staff. The email response to the legislature from Jones was sent about 20 minutes later.
It’s still not clear if the initial email containing the partisan data was an accident or intentional.
Senate leaders have yet to publicly address the matter.
Rep. David Lewis (R-Harnett), a named defendant in the lawsuit and chair of the House committee, acknowledged Tuesday that his committee received the email, but said members did not have time to download or review the data. He added that the link was disabled a short time later.
A battle over methodology
The House and Senate committees spent most of Monday discussing the methodology they would use to select a base map from Chen’s data. The court prohibited them from starting with the unconstitutional 2017 plans.
Sen. Paul Newton (R-Cabarrus, Union), one of three chairs of the Senate Redistricting and Elections Committee, explained early in the day that the court accepted Chen as an expert in redistricting, political geography and geographic information systems.
“Most importantly, Dr. Chen’s modeling runs comply with the court’s order,” he said. “Dr. Chen did not take into account partisan advantage. If we choose from any of Dr. Chen’s modeling runs, we know our base map will be a compliant map — a fair map in the eyes of the court — because Chen’s algorithm ‘harmonizes’ all of the court’s criteria and does not seek majority party advantage.”
He made a point to mention that the legislature had never been required to draw districts without considering partisanship, but that Republicans would respect the court’s order.
“Ideally, this committee works together constructively, in bipartisan fashion and the divisiveness will stop here,” he said.
It didn’t. On Tuesday, senators were still arguing about which set of Chen’s maps they would use.
Republicans wanted to use the 1,000 maps that considered incumbency protection from 2011 and 2017, and Democrats wanted to use the
1,000 maps that only used traditional redistricting criteria but add in their own accurate incumbency data later in the process.
“If you use the 1,000 maps for each cluster that Dr. Chen used based on the incumbents, you are baking into the process under the base maps some false information and some incomplete information,” said Sen. Natasha Marcus (D-Mecklenburg).
She also pointed out that Chen didn’t make the simulated maps for the purpose of redistricting — he was making a case for the 2017 legislative maps as a partisan outlier. She said using Chen’s incumbency maps would exclude all freshman lawmakers from incumbency protection.
“To me, it is absolutely wrong to start base maps with some incumbents, not all incumbents, and include some people who are no longer incumbents,” she said. “The court very clearly said that we may consider incumbency; I’m pretty sure the court meant current incumbency, not people who served in 2011 or 2017.”
The motion Newton put forward for selecting a map includes adding updated incumbency information, but it would still include having the inaccurate incumbency data in the first place.
Sen. Floyd McKissick Jr. (D-Durham) agreed with Marcus, and said the most pure data would be Chen’s first set of maps, which only used traditional redistricting criteria and did not consider incumbency at all.
He attempted to put forth a compromise using both sets of data, but that proposal was ultimately rejected. Sen. Michael Garrett (D-Guilford) put forth an amendment to ask Chen to create a third set of data with only updated 2019 incumbency information, but that too was rejected.
“I can’t for the life of me understand why a committee who has been sued by someone would use the expert of the plaintiffs as their counsel to continue to draw the maps,” said Sen. Ralph Hise (R-Mitchell), another chair of the Senate redistricting committee. “We use the work that has been submitted and approved by the courts, and not an individual to come in and bias the process any further.”
He argued that lawmakers just needed a base map to amend and said he didn’t think it was necessary to have anyone help with that process.
Newton insisted that the court embraced the second set of maps as compliant with all federal and state requirements.
Marcus pushed back and said Chen was willing to make a third set of maps with accurate incumbency data, and lawmakers should make the fairest map possible to abide by the court’s order.
“The data that you’re suggesting we start with includes people who haven’t been in this body for a while,” she said. “To say we’re going to start with those maps and work around where Fletcher Hartsell [a former Republican lawmaker who served from 1991 to 2016 and left office after being convicted of filing fraudulent campaign finance reports] and other people in this body live is ridiculous to me when we could do either a third set or use no incumbency. We need to pick one of those two; that’s the only fair way.”
Newton disagreed and said the better option, the “most fair and most compliant option,” was the set of maps that already included incumbency protection.
The committee moved forward with a voice vote — Republicans adopted their own nine-step methodology plan to choose a base map over the objections of Democrats. They also voted to table Garrett’s request for Chen to make a third set of data.
The legislative staff will help Democrats create maps from the first set of maps if time permits.
The methodology the Senate committee approved includes choosing a base map chosen at random. To do that, they brought in a borrowed state lottery machine, causing a stir among lawmakers, media and public onlookers.
The House Redistricting Committee as of Tuesday afternoon was further behind — they had not yet chosen which methodology they would use to select a base map. Lewis chose instead to have their attorneys vet the data first that they received from the plaintiffs.
Members did discuss possible methodology Monday. While the Senate plans to rate compactness, split voting districts and municipal boundaries by county cluster, the House plans to use statewide ratings.
No matter what the House and Senate enact over the next nine days — the court requires new districts by Sept. 18 — there will be a referee the three-judge panel uses to review their work. If the process or the districts are not satisfactory to the court, the referee will redraw maps for use in the 2020 elections.
The Republican legislative defendants have proposed the court appoint Art Pope and Gerry Cohen as co-referees to oversee the process. Pope is a well-known conservative financier and former Republican lawmaker. Cohen is a retired General Assembly attorney and longtime state government insider. The plaintiffs proposed the court use Nathaniel Persily, who was appointed special master in the racial gerrymandering case, North Carolina v. Covington.
It’s not clear when the court will choose a referee.
The legislature is video live-streaming the remedial redistricting process. Members of the public are able to attend meetings in person. The Senate is in Room 544 of the Legislative Office Building, and the House is in Room 643 — or they can watch online .
Read the court’s 357-page ruling here.