North Carolina lawmakers are drawing electoral maps for the second time this year – this time, they are tackling congressional districts.
A court ruled last week that the plaintiffs in a partisan gerrymandering lawsuit challenging the 2016 congressional map are likely to prevail on the merits of their case and enjoined lawmakers from moving forward with those districts in the 2020 election.
Lawmakers already redrew legislative districts because the court ruled in Common Cause v. Lewis that Republicans had an unconstitutionally unfair advantage that diluted Democratic votes. Appellate litigation is still pending in that case.
The three-judge Wake County Superior Court panel in its latest ruling in the congressional case did not order the General Assembly to draw new maps, but it did encourage lawmakers start the process on their own  if they didn’t want to risk the court moving primary election dates next year.
That case, Harper v. Lewis, is still pending as well, but it’s likely a motion for summary judgement will be filed soon, and because of an extensive federal record on the matter, judges could bypass a trial altogether.
The Joint Select Committee on Congressional Redistricting  met for the first time Tuesday to move forward with the congressional redistricting process, with GOP leaders stating that it was currently their best option. The leaders explained the court’s order and summarized another lawsuit pending in federal court , in which a congressional candidate and voters are challenging the injunction.
Committee co-chair Sen. Ralph Hise (R-Mitchell) said committee members were staying abreast of litigation, but there was no way to predict what would ultimately happen in terms of the congressional map being used or not in the next election. Drawing new maps now is a proactive approach to what might come.
“You’re between a rock and a hard place – either you’re violating people by changing [maps] or another court saying you’re violating by not changing,” Hise said. “Maybe they’ll figure out what the law actually said or what their opinion of it is sometime soon.”
The main point of discussion at Tuesday’s committee meeting was where to start in the process; Republicans wanted to use a so-called “Common Cause map” as a base to start, and Democrats wanted to start from scratch.
The “Common Cause map” was drawn by a bipartisan panel of retired judges in 2016. It was part of a nonpartisan map-drawing simulation co-hosted by Common Cause North Carolina and Duke University as an academic exercise to demonstrate what a nonpartisan redistricting process could look like.
Bob Phillips, Executive Director of Common Cause NC, said Tuesday in a news release that lawmakers should not use that map .
“Sadly, some lawmakers are missing the point – it’s not a Common Cause map they should be embracing, but a Common Cause process to draw fair maps rather than partisan gerrymandered districts,” he said. “Our map-drawing simulation utilizing some of the state’s most respected retired jurists was about highlighting one thing – that drawing maps in an open manner, without any influence from partisan lawmakers and without any political consideration, makes for a better redistricting process. Our goal never was, and never has been, to create a map that lawmakers or the courts should hold up as a map for the state to adopt.”
Hise explained during the committee meeting that drawing congressional districts was not as easy as drawing legislative districts.
“As we build this up, we’ve got to start from somewhere,” he said. “These congressional maps are complex … it’s not the plug and chug like with the legislative map.”
Sen. Paul Newton (R-Cabarrus, Union) said starting with the Common Cause map would allow the group to agree on incremental changes as they redistrict as opposed to “arguing over every step of the way.” He added that they could all agree the process needed to be expeditious.
Democrats argued that the maps had been over-analyzed, and they were on a self-imposed timeline so they could free-draw districts.
Phillips also sent committee members a letter Monday raising some concerns about the process of creating the Common Cause map. He said that they should know the group that created the map reviewed racial data and used it to make substantial changes to some districts.
“Finally, while no partisan data was used in drawing the map, the partisan attributes of the map have since been extensively studied, including by the General Assembly leadership in prior litigation,” the letter states. “In fact, in one of their briefs in the Rucho litigation, the General Assembly’s leadership described this map as one that ‘contained nine districts that favored Republicans and four districts that favored Democrats.’”
That last part is of note, because a large point of contention with the litigation is that the 2016 Congressional map contained a predetermined outcome for 10 Republicans and three Democrats.
Committee co-chair Rep. David Lewis (R-Harnett) said at the Tuesday meeting that there would be “no predetermined outcomes” with this remedial map. He and other lawmakers also agreed not to use partisan or racial data as part of the map-making process.
Committee members unanimously adopted six traditional redistricting criteria to guide their process: equal population, contiguity, data (no racial data and no splitting of voting districts unless necessary), compactness, double-bunking (avoiding pairing incumbent candidates) and election data (not to be used).
On Wednesday, lawmakers began drawing new maps. Hise announced Tuesday night that he would start with the Common Cause map, and other lawmakers on Wednesday started drawing from scratch.
They planned to work through the day in room 544 of the Legislative Office Building and reconvene at 4 p.m. – the process is being live-streamed , like the legislative remedial redistricting was.
Dan Jacobson, an attorney who litigated the Common Cause case, has been watching the process since it unfolded Tuesday. He expressed concern via social media with what was happening.
“Folks should watch this on the General Assembly’s live feed right now,” he tweeted Wednesday. “They are literally just recreating the current unconstitutional districts. Right now, they are creating a near replica of Dan Bishop’s current district.”
Bishop was elected earlier this year after a special election in the 9th Congressional district because of absentee ballot fraud in the regular election.
It’s not clear how long the process will take, but Lewis mentioned it could be two weeks. Members will not work on the maps Friday or Monday (Veterans’ Day). There will be opportunity for public comment on the maps, but it’s not known when that will be.
Congressional candidate filing begins Dec. 2 and closes Dec. 20, according to the committee. The new map will affect North Carolina’s 13 U.S. House seats.