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NC court to decide if GOP lawmakers crossed constitutional line in redistricting

State House district map being worked on by Rep. Destin Hall (R-Caldwell), in a redistricting committee room, on Oct. 14, 2021.
Rusty Jacobs
File photo of state House district map being worked on by Rep. Destin Hall (R-Caldwell), in a redistricting committee room, on Oct. 14, 2021.

This week's redistricting trial in state Superior Court ended on a dramatic note, but a startling revelation from a top Republican mapmaker might not make a difference in the legal battle over new congressional and state legislative district maps.

A three-judge panel is set to decide whether the North Carolina General Assembly's Republican majority overstepped constitutional bounds in the redistricting process. Voting rights advocacy groups are suing to overturn the newly drawn congressional and state legislative district maps, claiming they are unconstitutionally gerrymandered with extreme partisan bias.

At the start of every decade, lawmakers must redraw district maps with new census data. Those lines can lock in a party's political power for the long term. In this case, the challenged maps look like they could return Republicans to a veto-proof super-majority in the General Assembly and give the GOP a heavy advantage in the congressional delegation.

Most of this week's proceedings were dominated by dueling experts, like political scientist Jowei Chen, who testified for the plaintiffs. The University of Michigan professor compared the congressional map drawn by the legislature's Republican majority to a thousand randomly generated computer simulations.

"It's a statistical outlier, 97% of the simulated plans contain fewer than 10 Republican-favoring districts," Chen said under direct examination at the outset of the trial.

Analyses and past election results show the enacted map is likely to deliver the GOP an entrenched 10-4 advantage in the state's congressional delegation even though Democratic candidates for Congress in North Carolina earned more votes overall than Republicans in 2020.

"It creates a level of Republican bias that cannot be explained by North Carolina's political geography or by the General Assembly's August adopted criteria," Chen added during his testimony.

Carnegie Mellon University mathematician Wesley Pegden also testified for the plaintiffs. Pegden tested the GOP-drawn state Senate and House district maps against simulations generated by an algorithm he created. The algorithm relied on the same redistricting criteria adopted by state lawmakers and turned out simulated maps with what Pegden called "billions or trillions" of little changes and shifts to district lines.

"The enacted map is a 99.9999% outlier," Pegden said from the witness stand.

"Free elections really are about whether or not people can file, potential candidates have access to filing," said North Carolina State University Political Science Prof. Andrew Taylor, testifying as an expert witness for the Republican legislative defendants.

Taylor said the state Constitution gives the Legislature wide latitude in drawing political boundaries and that it is impossible to divorce partisanship from the redistricting process.

"Where you would draw the line and say, 'You know, this legislature has too much discretion,' we need to have some intervention, perhaps judicial intervention," Taylor added.

Prof. Michael Barber, a political methodologist at Brigham Young University, also testified for the defense, saying algorithms and computer simulations of maps don't tell the whole story in what is a deliberative process.

"One of my areas of research is using computational methods in social science," Barber testified. "So they can certainly be helpful but it's also certainly the case that they have limits and [in] the legislative process, you obviously can't predict or input everything that happens in a legislature in any model."

When drawing district maps, state lawmakers must adhere to certain constitutional requirements as well as adopted rules.

For example, under North Carolina's Constitution, map-makers may not divide any counties in the formation of state legislative districts. State House and Senate districts must have an equal population within plus or minus 5%. And populations in U.S. congressional districts must be equal with virtually no deviation.

A major part of the case against the Republican maps is that the urban, heavily-Democratic areas in Wake, Mecklenburg and Guilford counties were sliced and diced to either pack Democrats into fewer districts or dilute their voting power by spreading them out among more right-leaning areas.

Sen. Ralph Hise (R-Madison, McDowell, Mitchell, Polk, Rutherford, Yancey), left, pointing at the screen, works on a congressional district map with two GOP staffers. Oct. 14, 2021, at the North Carolina General Assembly.
Rusty Jacobs
In this Oct. 14, 2021 file photo, Sen. Ralph Hise (R-Madison, McDowell, Mitchell, Polk, Rutherford, Yancey), left, points at the screen and works on a congressional district map with two GOP staffers at the North Carolina General Assembly.

State Senator and Redistricting Committee co-Chair Ralph Hise (R-Madison, McDowell, Mitchell, Polk, Rutherford, Yancey) testified that the splitting of such large counties was unavoidable.

"Particularly Mecklenburg and Wake must be divided. Both the counties are larger than a congressional district," Hise said on the stand.

Another rule state lawmakers adopted for the most recent redistricting process was that all map drawing would take place in full public view in the House and Senate committee rooms. State Rep. Destin Hall (R-Caldwell), the House Redistricting Committee chairman, has repeatedly claimed the redistricting process he oversaw was the most transparent in state history, including it in his testimony at this week's trial.

State lawmakers hold a public hearing on redistricting at Durham Technical Community College last September.
Rusty Jacobs
State lawmakers hold a public hearing on redistricting at Durham Technical Community College in September 2021.

"This was undoubtedly the most transparent process in the history of this state," Hall said during cross-examination by the plaintiffs' attorney Allison Riggs, chief voting rights counsel with the Southern Coalition for Social Justice. "As you know, none of these measures were required."

But Hall caused a firestorm, and undermined his own claims of transparency, when he testified that he consulted "concept maps" provided by an aide outside the committee rooms designated for public viewing of the map-drawing process.

"Like I said," Hall said on cross-examination, "the few concept maps that I had, I barely relied upon them at all."

According to Hall, these "concept maps" no longer exist.

"And so there's no way plaintiffs today can look at those concept maps and test your assertion about whether or not they 'barely' informed your map-drawing, isn't that true?" Riggs asked Hall.

"As far as I know, that's true," he conceded.

When Riggs asked Hall whether he publicly revealed the existence of these concept maps during the redistricting process, he replied: "No one ever asked me if there was any concept map at all."

That was hardly a satisfactory answer to state Rep. Zack Hawkins, a Durham Democrat and Hall's fellow Redistricting Committee member who also testified on Wednesday.

"Your colleagues being forthcoming and open and transparent are just what you expect," said Hawkins.

Courtroom drama aside, the issue at hand is whether some degree of partisanship in redistricting is both legal and to be expected.

Historically, the answer is yes.

But in 2019, in a similar constitutional challenge, a state court panel decided Republicans in the North Carolina General Assembly had gone too far. And for 2020 only, maps were redrawn, increasing the Democrats' share of Congressional seats.

That case set no precedent though and was reviewed by a three-judge panel with two Democrats in a state that elects judges on a partisan basis. This time, however, the three-judge panel is dominated by Republicans, Judges Graham Shirley and Nathaniel Poovey. The lone Democrat on the panel is Judge Dawn Layton.

Ultimately this matter is headed to the North Carolina Supreme Court where, for now, Democrats hold a 4-3 edge.

In a rush to resolve the legal dispute in time for the 2022 mid-term elections, the state Supreme Court delayed the primaries and ordered the trial court to deliver a verdict in the case by Tuesday. Any appeal of that order must be filed in the Supreme Court within two business days.

Rusty Jacobs is WUNC's Voting and Election Integrity Reporter.
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