A three-judge state Superior Court panel ruled unanimously Monday that the map can go forward, setting aside a prior injunction postponing congressional candidate filing.
“As a practical matter, in the court’s view, there is simply not sufficient time to fully evaluate the factual record necessary to decide the constitutional challenges of the congressional districts without significantly delaying the primary elections,” said Judge Paul Ridgeway, who read the panel’s decision. “It is time for the citizens to vote.”
The court declined to take up constitutional issues raised about the new map, and it did not rule on the constitutionality of the 2016 congressional map, which was challenged in the partisan gerrymandering case Harper v. Lewis.
“Although one can certainly argue that the process was flawed or that the result was far from ideal, inevitably the end result is that the grievously flawed 2016 Congressional map has been replaced,” said Ridgeway. “This court’s concern about delaying the electoral process is even more pronounced today than on Oct. 28 (when the injunction was entered). In this regard, the court finds that the balance of equities has shifted over the past month.”
The other judges on the panel were Alma Hinton and Joseph Crosswhite.
Had litigation been brought sooner than September, the judges said the adversarial process on which judicial systems are based would have allowed for a more thoughtful process.
Lawmakers began their own remedial redistricting process after the three-judge panel ruled the plaintiffs in Harper were likely to succeed on their claims that the 2016 map was unconstitutionally gerrymandered and urged them to enact a new map or face the consequences of a delayed election.
The remedial process took about a week, and although it was live-streamed, critics were still concerned about the level of transparency in the process and the lack of bipartisanship. The maps were ultimately enacted (House Bill 1029) without a single supporting vote from a Democratic lawmaker in the House or Senate.
The judges seemed pleased, though, with the public’s ability to see the process unfold for the first time through the live stream.
“The new General Assembly districts and congressional districts were not drawn in the basement of a political operative’s home, as was the case with the prior maps, but were drawn in the open by the General Assembly through public hearings, through live streams, audio and video,” Ridgeway said.
Among the pending motions the panel took up Monday was one for summary judgement asking the court to throw out the 2016 map altogether based on the underlying record from previous cases over the same subject.
“It is undisputed that the 2016 plan is an extreme partisan gerrymander,” said Elisabeth Theodore, an attorney for the plaintiffs.
By ruling on the summary judgement, she said the court would remove any doubt (of which she believes there is none) that the panel has authority to review the remedial map lawmakers enacted.
Theodore also addressed the Republican legislative defendants’ argument that because the court did not rule on the 2016 map before lawmakers enacted a new one, the three-judge panel could not review its remedial process.
She called it a “cynical effort” to manipulate the judiciary out of power to allow for another gerrymandered map.
“The remedial map does not provide plaintiffs with the relief sought, because it’s just another political gerrymander,” she said, adding that several of the districts in the 2016 map were 90 percent the same as the districts in the new map and that the average “overlap” between the two maps was two-thirds.
She argued that not ruling on the summary judgement motion or declining to review the new map would create a game of “whack-a-mole” for plaintiffs to play as Republicans ran out the clock. She said it also sends a message to the GOP defendants that they can enact new maps in the middle of gerrymandering litigation to render it moot.
Similarly, Stanton Jones, another attorney for the plaintiffs, explained that the remedial map Republicans enacted did not involve full transparency or a bipartisan process. He said the new plan is just another gerrymander that pre-ordains an 8-5 Republican majority, no matter how the election plays out.
“This map perpetuates rather than eradicates the constitutional violations,” he said.
Phil Strach, the attorney for the legislative defendants, argued that where there is no final judgement, there is nothing for the court to enforce with regard to the remedial process.
He said the plans were also not as impervious as the plaintiffs made them out to be, noting that one analysis showed a 7-6 Democratic majority under the new map.
Rebecca Harper, the lead plaintiff in the case, said Monday she was disappointed in the court’s ruling, but that it wasn’t a total loss.
“The court’s decision mostly reflected problems with the short time frame and not the merits of the case,” she said.
She added that she was happy to fight for fair maps and she thinks the case helped educate the general population about how rigged the state’s elections were.
“I think that it will be impossible to go back to the old ways,” Harper said, noting that the conversation around reform should continue even after the litigation ends.
Jones said they had not yet discussed an appeal in the case.
Common Cause North Carolina Executive Director Bob Phillips and North Carolina Coalition for Lobbying and Government Reform Director Jane Pinsky – who have both been following the litigation closely – vowed Monday to continue fighting for fair maps in the state.
“Nothing changed from when we walked in here, which is that we need long-term change,” Pinsky said. “This was about one election, one map.”
She promised to watch the legislature closely as it took on more redistricting after the next election, and she said she would continue to push Rep. David Lewis (R-Harnett) to hold redistricting reform hearings on bills to address the issue.
Phillips’ comments after the Monday hearing echoed Pinsky’s: “The fight for reform continues in the legislature.”
“While we didn’t get everything we wanted today, we’ve come a heck of a long way,” he said.
He added that he hopes lawmakers learned a lesson as a result of the litigation and said there is a lot of room for improving the redistricting process.
The judges appeared to hope for the same.
“Much has changed with respect to redistricting in North Carolina in the past 90 days, both with respect to the law and with respect to the process by which maps have been drawn,” Ridgeway said. “The results are not perfect and indeed some may contend that the results are far from perfect, but the current legislative and congressional maps resulting from a decade of litigation will themselves be replaced after the 2020 election cycle, because of the upcoming decennial Census.
“It is the court’s fervent hope that the past 90 days becomes the foundation for future redistricting in North Carolina, and that future maps are crafted through a process worthy of public confidence and a process that yields elections that are conducted freely and honestly to ascertain fairly and truthfully the will of the people.”