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This decade's redistricting battle in NC is off to a fast and furious start

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
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.

A trial in state superior court over redistricting in North Carolina begins Monday.

North Carolina's high court is determined to address constitutional questions about newly drawn electoral maps sooner than later this decade.

"I think the early indication is, certainly at the state Supreme Court level, that they will engage themselves in this redistricting controversy much more quickly than they did in the past," said Catawba College Political Science Prof. Michael Bitzer.

Republicans in North Carolina dominated most state Legislative and Congressional races throughout the 2010s largely relying on district maps that were ultimately thrown out by courts for being unconstitutionally gerrymandered on the basis of race and extreme partisanship.

Still, it wasn't until 2019 that last decade's legal battles over the maps effectively concluded with one final redraw under a state court's scrutiny. In 2020, the GOP majority in North Carolina's Congressional delegation contracted from 10-3 to 8-5.

"I mean, almost the entire decade was spent in court either at the state court level or federal court level," said Meredith College Poll Director and Political Science Prof. David McLennan.

"Surely there's a better way to do it than that," added Robert Joyce, Professor of Public Law and Government at UNC Chapel Hill's School of Government. "It seems to me that maybe litigants and the courts are ready to try and move this thing along a little faster."

This year, while still in control of the North Carolina General Assembly, Republicans led a redistricting process they claim was fair and the most transparent in state history. For a couple of weeks in October, lawmakers in state House and Senate committee rooms drafted maps at computer terminals in full public view. They also held public comment sessions before and after maps were drawn.

Redistricting is required by law following every decennial census. Data collected in 2020 showed North Carolina's population grew by enough to warrant an additional Congressional seat.

Republicans in charge of drawing new maps also vowed not to consider racial or partisan data while observing traditional redistricting criteria such as keeping districts compact and trying to avoid the splitting of counties and municipalities.

But the new maps immediately faced legal challenges from voting rights advocates as well as a national law firm backing progressive causes. The lawsuits claim Republican mapmakers manipulated political boundaries for state Legislative and Congressional districts with unconstitutional and extreme partisanship.

Analyses of the maps being challenged suggest Republicans could retake a veto-proof supermajority in the North Carolina General Assembly and could win as many as 11 of the state's 14 Congressional seats, even though democratic candidates for Congress in North Carolina earned more votes overall than Republicans in 2020.

In a dizzying flurry of legal developments at the start of December a three-judge panel of the state Court of Appeals granted an emergency motion filed by plaintiffs challenging the new district maps and temporarily put candidate filing on hold for North Carolina state Legislative and Congressional districts.

Then, the full 15-member, Republican majority Court of Appeals overruled the three-judge panel and reinstated candidate filing. Finally, everything came to a screeching halt as the North Carolina Supreme Court stopped candidate filing once more and pushed the 2022 primaries back from March to May.

The high court also set the redistricting lawsuits on a fast track, with a state Superior Court trial set to start on Monday.

Opponents of the state Legislative maps also claim Republicans violated federal protections against minority voters by not considering race and ran afoul of a North Carolina Supreme Court ruling from the early 2000s. Under that redistricting case, legislators, must identify and preserve VRA districts, areas where, without protections under the Voting Rights Act, minority voters would otherwise be deprived of the ability to elect their preferred candidates.

Bitzer said he thinks such racial grounds could be the basis of future federal legal action against North Carolina's Republican-drawn maps taken by the U.S. Department of Justice under the Biden Administration.

"We will likely see a lawsuit by the DOJ over these maps at some point regarding the racial dynamics," Bitzer said. "When that would happen, I just don't know. I know that they're going after Texas in this instance and it seems like North Carolina would probably be the next on the litigation docket for challenges."

No matter the outcome, the legal decisions made in these cases will be viewed by many people through a hyper-partisan lens.

"The courts are not immune from party politics and partisanship," said Bitzer, noting that North Carolina elects judges in partisan races.

"We like to think that once they put on the black robe, judges are impartial and they're fair and they are," Bitzer added. "They will look at the cases, they will look at the facts, they will hear from experts, and take testimony, but in the end politics will shape the way that they view and judge things such as the most political activity in America, and that is redistricting."

The trial in January is not only likely to yield a quicker decision on the constitutionality of North Carolina's new district maps but also a more definitive one on the subject of partisan gerrymandering.

In a 2019 ruling that involved a North Carolina redistricting case, the U.S. Supreme Court determined federal courts had no role to play in claims of extreme partisan gerrymandering. Legal challenges of such political issues should be resolved in state court.

That same year, a Wake County Superior Court indeed found that Republicans in the North Carolina General Assembly had manipulated political boundaries for unconstitutional partisan gain. Rather than appeal and run the risk of having a higher court establish a legal precedent limiting partisanship in future redistricting, GOP lawmakers redrew electoral maps for the 2020 elections, knowing that in 2021 they would get to draw new lines again.

However, Joyce said this is a very different decade, starting off as it is, with a partisan gerrymandering claim in state court under the state constitution. It is a case, he said, that inevitably will work its way up to the North Carolina Supreme Court.

"I think that there will be a ruling, one way or another, that will be precedent setting." he said.

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