Attorneys for the two sides in the battle over North Carolina's legislative voting maps each faced withering scrutiny from a federal judicial panel in Greensboro Thursday. And the judges issued an order late in the day indicating they may end up bringing in a neutral party to redraw the district plans.
The lawyers representing the 31 voters who successfully sued state GOP lawmakers over 2011 district maps told the judicial panel that the proposed replacement maps bear many of the same problems the earlier plans did, and more.
The plaintiffs' attorneys pointed to two redrawn senate districts in Cumberland and Guilford Counties that were ruled to be unconstitutional racial gerrymanders in the earlier maps. They argue that the newly drawn districts still have black voting-age populations, or BVAPs, above 50 percent, suggesting Republican lawmakers packed black voters into the areas to decrease their influence over election outcomes in surrounding districts. The same goes for a house district that crosses Wayne and Sampson Counties and include large BVAPs in the cities of Goldsboro and Clinton.
But Lawyers representing the legislators say the redistricting committees stuck to court-ordered criteria--avoiding split precincts, keeping counties whole, protecting incumbents--but did not consider race in devising the replacement maps. Any similarities in the racial makeup of districts between the discarded maps and the replacements are "naturally occurring," according to the defense.
Attorney Phil Strach, representing the Republican legislative leaders, told the judicial panel there are no signs of racial gerrymandering in the new maps and that any instances where areas ended up with high BVAPs again are just a product of a district's geographic shape.
But two of the three judges pressed Strach on the assertion that GOP lawmakers did not consider race. Judge Jim Wynn noted Republicans used the same map-making consultant, Thomas Hofeller, for the 2011 unconstitutional maps and the new ones. How, Judge Wynn asked the defense attorney, could it be argued that the consultant was not aware of race in creating the replacement maps? Judge Catherine Eagles also pointed out to Strach that the defense provided no affidavits under oath that lawmakers did not consider race in drawing the new districts and wondered whether their assertions alone were enough to prove race was not a factor in the new district lines.
Attorney Anita Earls, representing the plaintiffs, faced tough questions too. Judge Thomas Schroeder repeatedly asked her to explain how lawmakers could have considered race to re-draw the unconstitutional racially gerrymandered districts. Earls struggled to provide a clear, emphatic answer. She said lawmakers needed to ascertain what the racial implications of their redistricting plan would be--the judge did not seem swayed.
Earls also argued Republican lawmakers violated a provision of the North Carolina Constitution barring mid-decade redistricting by altering voting areas outside the racial gerrymanders they were ordered to corrrect. She pointed to two house districts in Wake County that were not declared unconstitutional yet were changed in the new GOP redistricting plan. The plaintiffs submitted their own alternative maps claiming they show the racially gerrymandered districts could be fixed without redrawing districts beyond their boundaries.
This line of attack led to a telling question from Judge Wynn. He asked Earls why the court should not just bring in a neutral, independent party to redraw the maps as opposed to the court inserting itself into a political battle and choosing sides, something courts are loathe to do? The only answer Earls could muster was: timing. These maps are supposed to be in place for the 2018 elections and time is running out. What is more, 2020, the next decennial census and yet a new round of redistricting are just around the corner.
The court took the case under advisement and will decide whether to approve the GOP-drawn maps or bring in a so-called special master to draw a new plan.
After court adjourned, the judges issued an order instructing the parties to confer and come up with a list with three names of qualified candidates who could fill that position.