NC's Long History Of Litigation Over Redistricting: A Guide To Fair Maps Or A Preview Of Lawsuits To Come?
North Carolina's Republican-led legislature soon will start work on re-drawing the state's political boundaries. The decennial redistricting process could shape electoral outcomes in North Carolina for another 10 years. The question is whether lawmakers will use the past decade's worth of litigation as a guide for avoiding more protracted court battles over voting maps.
"Every issue you care about is at stake," said Cheryl Tung, President of the League of Women Voters of Wake County. "So we always ask, when we make these presentations to the community, think of an issue that's important to you, think of whether health care, education, voting rights, the environment."
"All these issues that affect our state are affected by redistricting efforts," she added, "...and who and where those lines are being drawn for voting maps and if those lines and districts are fair."
Sitting in the league's Raleigh office, Tung described the group's latest public education effort: the Fair Maps Art Contest, running through August 15.
"You only need to be a resident of North Carolina to participate," she said. "So we're inviting artists and budding artists to submit 2D art work related to themes of fair voting maps in North Carolina. We'll have an online exhibition and voting and we're offering cash prizes in two categories. We have an adult category with a $700 cash prize and a teen category with a $200 cash prize."
As lighthearted as the Fair Maps Art Contest may be, redistricting is serious business and North Carolina has become a poster child for a bare-knuckle brand of drawing voting maps.
"North Carolina has been in the courts on the question of redistricting, and especially on the question of racial discrimination in redistricting more than any other state," said Prof. Robert Joyce, who teaches at the University of North Carolina's School of Government.
"North Carolina has been party to leading United States Supreme Court decisions interpreting racial discrimination with respect to redistricting both the United States Constitution equal protection clause and under the Voting Rights Act of 1965."
North Carolina, like other states, is obligated to redraw political boundaries every 10 years following the decennial Census. State lawmakers must rely on census data to redraw political districts for U.S. congressional districts, state house and senate districts and for local offices, too, such as city council, county commission, and the school board.
A delay in the processing of 2020 census data caused state legislators to push back some municipal elections in North Carolina to next spring.
When it comes to drawing congressional districts, Professor Joyce said lawmakers are constitutionally bound to make sure each district is equal in size, in terms of population.
"The basic underlying principle is the principle of one person, one vote," he explained.
"That is an offhand way of describing the requirement under the equal protection clause of 14th Amendment, that everybody's vote should count the same. Nobody should have a vote that counts more than anybody else's vote."
While congressional districts must be the same size with virtually no deviation, lawmakers have more wiggle room when shaping their own legislative districts. State house and senate districts may deviate plus- or minus-five percent from the ideal size.
And, Joyce said, there is a second legal principle legislators in North Carolina must follow in drawing voting districts: contiguity.
"That is, every district must be one piece of territory," he said. "It can't be a part over here and a part over there separated by a different district. All of it has to be of one piece. It can still end up looking funny on a map but you have to be able to walk from one part of it to another without going through another district."
In addition to the aforementioned rules, Joyce said there are other underlying considerations that lie "somewhere between aspirations and legal requirements."
Among those, for example, is preserving communities of interest.
"It is highly desirable," Joyce explained, "in the drawing of political electoral districts that where there are populations who share some sort of fundamental level of interest around something that those folks be able to be together in pursuing and furthering their political interests by voting and a way to do that is for them all to be in the same district to increase the likelihood of electoral success."
So how is it that with all these clear rules and guidelines North Carolina district maps end up in court so frequently?
Professor Joyce said the main driver of North Carolina's past legal battles over voting maps has been the issue of race discrimination. To comply with the federal Voting Rights Act and the U.S. Constitution's equal protection clause, Joyce said, political map makers must consider race only to avoid the unintentional discriminatory impact of district lines, but race can't be a predominant consideration over all others.
"The typical way in decades past that the claim of race discrimination has come up is in the intentional use of race for the purpose of minimizing the voting effectiveness of racial minorities," Joyce said.
In redistrict parlance, this is what's known as "packing and cracking."
"Putting all of the minority voters together in one district," Joyce said, "in order to drain the surrounding districts of minority voters so that yes, the minority voters will carry the one district but will have little effect on the districts around, that's packing.
"Cracking is to take an area that has a significant minority concentration and divide it up among a number districts so that it doesn't have an electoral effective force in any of the districts at all. So that kind of intentional discrimination has historically underlain most of the claims of unlawful discrimination on the basis of race in the drawing of districts."
In 2016, Republican state legislators redrew North Carolina's congressional district map with a line going through the campus of North Carolina A&T State University, "cracking" the historically black institution's campus into separate voting districts.
According to Joyce, the period from 2011 to 2020 was the hottest yet in a long history of legal battles over district maps in North Carolina, starting with racial gerrymandering claims in federal court.
"By the middle of the decade," Joyce said, "the order from the United States Supreme Court with respect to both the congressional districts and the legislative districts, in separate lawsuits, was that the districts must be redrawn."
Facing legal challenges over a new set of 2016 maps, Joyce said Republican lawmakers declared that this time they did not use racial data in the redrawing of district maps, but instead relied on voting data.
"And one legislator said this," Joyce recalled. "'I acknowledge freely that this would be a political gerrymander.' He said, 'We want to make clear that we are going to use political data in drawing this map. It is to gain partisan advantage on the map. I want that criteria to be clearly stated and understood. I am making clear that our intent is to use the political data we have to our partisan advantage.'"
With that admission by GOP lawmakers, Joyce said voting rights advocates made a tactical change. Now they sued on the basis of partisan gerrymandering, which wasn't a new kind of claim and had never been that successful in the courts, according to Joyce.
"The drawing of districts for partisan advantage stretches back to the beginning of the drawing of districts," Joyce said. "The very term 'gerrymander' refers to the drawing of a district for political advantage in Massachusetts in 1812, nothing new about this."
In 2018, however, plaintiffs challenging Republican-drawn district maps in North Carolina got a major breakthrough victory in federal district court on partisan gerrymandering claims.
"That was a big deal," Joyce said, "because there had been very few cases even at the trial level where a claim of partisan gerrymandering succeeded. So in this instance, the federal district court found that the maps as drawn on the redrawing were, in fact, unconstitutional partisan gerrymanders."
But on appeal, the United States Supreme Court ruled that while it is possible extreme partisanship in redistricting violates basic notions of democratic representative government, that does not mean that federal courts are the proper place for determining when partisan map makers have gone too far.
The proper setting for making that determination, according to the Supreme Court, is the political process or, perhaps, state courts. And that is exactly what happened when plaintiffs filed a lawsuit in state court in 2019 challenging Republican-drawn North Carolina legislative district maps on the basis of extreme partisan gerrymandering.
As Professor Joyce noted, a three-judge panel in state superior court found the partisan intent of the GOP lawmakers who led the redistricting effort predominated over all other redistricting criteria. The judges ordered the state's legislative maps to be redrawn yet again for the 2020 elections. Then, voting rights advocates filed another lawsuit challenging North Carolina's congressional map on the same partisan gerrymandering claims.
The Republican defendants opted to redraw both sets of maps rather than appeal. The decision not to appeal meant the state court rulings did not end up as far reaching as voting rights advocates would have liked. That is because only appellate court decisions establish legal precedent.
Does that mean North Carolina's Republican-led General Assembly is likely to use the state court's directions for creating fairer, less litigation-prone maps this time around?
"My best guess," Joyce said, "is that based on the experience with map drawing at the very end of the decade, which resulted from these court orders and which were apparently more transparent and more open than historically the drawing of maps by either Republicans or Democrats has been, my guess is that that was sufficiently a positive experience that it will be to some extent replicated and that there will be a more transparent system in place for the drawing of districts using the 2020 census numbers."
Cheryl Tung of the League of Women Voters of Wake County, who was a named plaintiff in one of the lawsuits challenging district maps a few years ago, was somewhat less optimistic.
"Remember these legal battles take years," she said. "So how many election cycles have we gone through using gerrymandered maps?"
A common cause among voting rights advocates is redistricting reform, measures like creating independent commissions to draw political maps instead of lawmakers, who might prioritize holding onto favorable district lines.
Such measures often have support in the legislature but, alas, typically among members of the minority party only.