It’s a strikingly familiar tale in North Carolina: voters are waiting with bated breath for a court to either approve legislatively-drawn remedial House and Senate maps or to assign the job to a neutral third-party to correct unconstitutional gerrymandering issues.
Republicans drew the 2017 legislative maps to entrench themselves in political power and dilute the Democratic vote, a three-judge panel ruled in September. The panel gave lawmakers another bite at the apple to draw districts without partisan considerations ahead of the 2020 election.
Now there is a battle over whether legislators followed the court’s instructions or just ended up creating another unconstitutional scheme that continues to disadvantage voters.
The political stakes are high – 2020 is a Census year, so whichever party is elected to the majority will control the next cycle of redistricting, likely with some partisan intent if history gives any indication.
There has been question about whether politics can truly be taken out of the redistricting process. Reform advocates argue it’s possible, but at this point, what’s at stake in the immediate future for North Carolina voters is the ability to create accountability by casting their ballots and participate meaningfully in a democracy.
The plaintiffs in Common Cause v. Lewis argue that won’t be the case if the court accepts certain House remedial districts.
“This Court gave the General Assembly an opportunity to draw remedial maps and cure their prior constitutional violations,” states the formal response to the legislature’s enacted maps. “Although its process was not without flaws, the Senate has done so. But the House has not.”
The plaintiffs argue that procedural violations of the court’s remedial order would be enough to throw out the entire House map, but to limit the scope of requested relief, they object specifically to five county groupings: Columbus-Pender-Robeson; Forsyth-Yadkin; Cleveland-Gaston; Brunswick-New Hanover; and Guilford.
“Incumbents in these groupings acted with partisan intent and impermissibly sought to preserve the cores of their prior districts, in violation of the Court’s mandates,” the court document states.
Legislators redrew a total of 21 Senate districts and 56 House districts. They did it with an unprecedented amount of transparency, but critics have raised concerns about not being able to hear and follow legislative proceedings closely enough.
Lawmakers still could be seen huddling and having side conversation to which the public was not privy, and there was not audio attached to most of the livestream computers, so it was difficult to understand why changes to certain maps were being made in some cases.
Legislators also continued to prioritize incumbency protection, which is the chief complaint in the plaintiffs’ response to the House districts. The legislative defendants’ attorney also emailed partisanship data to all House redistricting committee members ahead of the remedial process, which the plaintiffs pointed out to the court.
The legislative defendants told the court in one of the latest filings that they didn’t violate the remedial instructions for redistricting and that if the Senate map is acceptable, it follows that the House map is too.
“The House utilized the same approach as the Senate in all material respects: it winnowed down Dr. [Jowei] Chen’s simulated maps to the five optimal group maps using Dr. Chen’s own criteria, picked one at random for each affected grouping, and allowed minor changes under highly restrictive criteria that were all executed in public and by non-partisan staff.
“Plaintiffs’ objections are a case of selective outrage that smacks of partisan manipulation.”
Chen is an expert the plaintiffs used at trial to show the 2017 enacted legislative maps were extreme partisan outliers. He created a set of simulated maps for purposes of testifying and providing evidence in the partisan gerrymandering case.
Republican lawmakers decided at the outset of the remedial redistricting process that they would use those maps as a base starting point because the court already accepted them at trial.
They ask in their response to the plaintiffs’ objections for the court to decline to enjoin their maps, or at minimum, to return the lines it rejects to the configurations created by Chen’s computer.
The plaintiffs asked the court to reject the five specific county groupings they objected to and to direct the referee in the case – Stanford Law Professor Nathaniel Persily – to draw new districts.
The court is currently taking those arguments into consideration, along with information from the State Board of Elections about its limitations and deadlines associated with the March primary election next year.
Under the current statutory deadline for distributing absentee ballots for the primary, the State Board would need “shapefiles” for the new legislative districts between now and Dec. 2-10, according to a court filing from Executive Director Karen Brinson Bell.
The State Board could vote to extend that deadline by five days, and there are provisions that would permit it to delay distribution of absentee ballots by more than five days, but it’s unlikely that would change the date by which the agency would need shapefiles.
If the court were to order a separate primary involving the legislative districts at issue, it would take the State Board approximately 63 to 71 days to prepare before early voting in that separate primary could begin. That preparation, the filing states, likely could not begin until March 14, 2020, for technical reasons.
In the meantime, the same three-judge panel that is deciding the legislative partisan gerrymandering case was appointed to hear another lawsuit filed two weeks ago challenging the state’s 2016 congressional map on the same grounds. The three judges are Alma Hinton, Paul Ridgeway and Joseph Crosswhite.
The congressional suit mimics arguments from Common Cause v. Lewis, and the plaintiffs in the new proceeding have already made a case for expediting matters to affect the 2020 primary and general elections.
They also filed a motion for a preliminary injunction to enjoin the use of the 2016 congressional map.
“This is a straightforward case,” the document states. “No discovery or extensive expert analysis is needed for this court to issue a preliminary injunction. The court can and should enjoin North Carolina’s 2016 congressional redistricting plan (the “2016 Plan”) based solely on the official legislative criteria for creation of the plan and the admissions of legislative defendants and their mapmaker, Dr. Thomas Hofeller.”
A hearing has not yet been set in that case.
Finally, the other case North Carolinians are watching is one that involves more than 75,000 documents from Hofeller, which shed light on the notoriously private mapmaker’s process and motivations. The three-judge panel in Lewis severed the issue of whether those documents should remain confidential or be published, and they appointed Judge Vince Rozier to oversee related pending litigation.
Rozier has already issued two orders in the case – one denying a request from the Republican National Committee to claim ownership over some of the Hofeller files and another granting a request from Nueces County, Texas, to review some of the files it owns from working with the mapmaker.
Rozier has not yet decided how he will proceed with the longest-pending request from Geographic Strategies, a political consulting firm Hofeller co-founded. Geographic Strategies requested before the Lewis trial that the court designate the entirety of the Hofeller files as “highly confidential” because, it said, it owned the documents.
The plaintiffs objected and there have been ongoing legal arguments about the files. It’s not clear when or if a hearing will be scheduled in the case, but there is great interest from an array of indviduals, states and business entities in getting access to the files. Some media outlets already have them and have written about the documents, but none have published them online.