It appears the federal courts are attempting to overturn the North Carolina Constitution and take the right of redistricting away from the state legislature so that the federal court itself can do the redistricting.
On Tuesday, Jan. 9, it was announced that a panel made up of three federal judges had ruled the redrawn North Carolina congressional districts illegal because of political gerrymandering.
In the past, the courts have upheld the right of the majority party to redistrict to benefit the candidates from that party. A case is currently before the US Supreme Court where a similar ruling by a lower court was made.
It is quite curious that these rulings against state drawn districts are being made against Republican legislatures and most of the judges involved were appointed for life by Democratic presidents.
For over 100 years in North Carolina, the Democrats drew districts to favor Democratic candidates, but when a Republican legislature does the same thing it is deemed illegal.
If the federal court ruling is upheld, it will mean that the congressional districts will be redrawn again. Sixth District Congressman Mark Walker was first elected in 2014 and reelected in 2016 from a radically different district after the courts ordered the districts be redrawn. It appears he may be running in 2018 from yet another new district. A couple more terms and Walker may have at one time or another represented everyone in a 10-county area.
In another state redistricting matter, a hearing was held in federal court before a three-judge panel in Greensboro on Friday, Jan. 5 on the new North Carolina state House and Senate districts drawn by a special master, Nathaniel Persily, hired by the judges to redraw the offending districts drawn by the state legislature, which the court said had been racially gerrymandered. Those districts include the state House and Senate districts in Guilford County.
Although the state legislature said that it did not consider race when drawing the new state legislative districts, the three judges didn’t appear to believe it. When Persily said that he considered race, but it was not the predominate consideration, the judges appeared to believe him.
The argument made in court by the state legislature represented by Phil Strach was that the special master did use race as the predominant factor in drawing the districts and the proof was the new districts had a black voting population of between 38.4 percent to 43.6 percent. The state also hired an election expert, Doug Johnson, who testified that it appeared a racial quota was used by Persily in drawing the districts.
Persily said he had to consider race since he was redrawing districts that had been ruled unconstitutional because of racial gerrymandering, but that there was no quota.
It is worth noting that according to election experts the percentages right around 40 percent happen to be the percentage that is most beneficial to Democrats.
The three-judge panel, made up of Fourth Circuit Court of Appeals Judge James Wynn, and North Carolina Middle District Judges Catherine Eagles and Thomas Schroeder has not announced a decision, but judging from their comments during the hearing, it appeared they planned to accept the districts drawn by the special master they hired.
Wynn noted that they didn’t have to hire a special master; that it was well within their authority to draw the districts themselves, and he complained that the state had not hired its own expert in time to offer advice on the special master’s plan but simply to criticize the plan.
Wynn and Strach also disagreed on the authority of the court. Strach maintained that the federal court did not have the authority to interpret the North Carolina Constitution and Wynn said the federal court had that authority.
Wynn also had some sharp comments for attorney Allison Riggs of the Southern Coalition for Social Justice, who represented the plaintiffs. In the middle of the presentation by Riggs, Wynn told her she was simply rehashing the case when she was supposed to be talking about the maps presented by the special master. Wynn said the case had already been argued and this particular hearing was on the maps drawn by the special master. Riggs seemed to cut the rest of her presentation short. She had been talking about different “buckets” of information and it appeared she ran out of buckets.
Guilford was the only county where both the state House and Senate districts were ruled unconstitutional and had to be redrawn. Also involved in the case were state House districts in Wake, Mecklenburg, Bladen, Sampson and Wayne counties.
Both the plans drawn by the Persily and Johnson have Dist. 28 state Sen. Gladys Robinson and District 27 state Sen. Trudy Wade double bunked in the new district 27.
It is widely assumed that if the court rules against the state and the current districts finding them to be racially gerrymandered, then the state will appeal that ruling.
During the hearing, Strach noted that this was a racial gerrymandering case and not a Voting Rights Act case. He also noted that what was done for political reasons could be interpreted to having been done for racial reasons.
The vast majority of black voters are registered Democrats, so if someone drawing districts is looking for Democrats to put in that district there is a good chance that the precincts chosen will be predominately black. So far it has been ruled legal to draw lines for political advantage, which is what the legislature has been arguing that it did.
One problem is the Voting Rights Act versus racial gerrymandering. Because of the Voting Rights Act, the legislature is required to draw minority-majority districts to facilitate minority representation. But the courts have ruled that while race can be a consideration it cannot be the predominant consideration.
Also, while minority-majority districts have to be drawn, according to the courts the districts cannot have too high a percentage of black voters in them. What the courts have not been willing to state is the exact percentage that the courts consider legal and illegal.
This case with special master Persily drawing districts that had a black voting population of between 38.4 and 43.6 would indicate that is the range the federal judges consider legal. But the question the state kept asking is, how could the districts be drawn to such precise standards without using racial quotas, which is also considered illegal?
It would appear that if the Supreme Court doesn’t make some definite rulings on what is and isn’t unconstitutional in redistricting cases, redistricting will be litigated endlessly. The litigation about the redistricting since 2011 has been continual. It appears that by 2020, the 2011 districts will still be in court.
At the end of the hearing, Eagles asked when filing opened for the 2018 elections. She was told that it opened on Feb. 12 and closed on Feb. 28.
An attorney for the North Carolina Board of Elections told the court the Board of Elections didn’t need much lead time to get ready for the candidate filing period.
Strach countered that the candidates needed to know what districts they were in so they could make decisions on whether to run.
State Rep. Jon Hardister has already moved once this year because the redistricting had double bunked him with fellow Republican Rep. John Faircloth. With everything still up in the air as far as the state House districts in Guilford County, if Hardister has not unpacked all his boxes, now would not be the time to do it.