No decision has been made on the Greensboro City Council redistricting lawsuit, but at least the court case is over and is awaiting the decision by federal District Court Judge Catherine Eagles.
When the state drew new Greensboro City Council districts in 2015, changing the system to eight councilmembers elected from districts and the mayor elected at large who can only vote in the case of a tie, the Greensboro City Council and eight individual voters represented by the Southern Coalition for Social Justice (SCSJ) immediately filed a lawsuit challenging the system, which happens to be exactly like the Winston-Salem election process.
They filed the lawsuit against the Guilford County Board of Elections, which had absolutely nothing to do with the passage of the law, but according to a recent court decision can be sued because it would administer the law.
The city portion of the case was about the restriction on a public referendum to redistrict and that had already been ruled as unconstitutional. So the only parts left were the allegation that three districts had too many black voters, and that the new districts violated the one person, one vote rule by overpopulating some districts and under populating others. This was despite the fact that the deviation was 8.2 percent, which is lower than 10 percent that had been accepted as the standard.
The case was highly unusual because Guilford County Attorney Mark Payne, representing the Board of Elections, said the board didn’t have a dog in this fight – since it had nothing to do with the law and had no means of fixing the law if it was found unconstitutional – and he did not put up any defense of the law.
So for two days the SCSJ attorneys questioned witnesses and submitted evidence without any challenge, and there was no cross examination of any of the witnesses. Still, it took two days for the attorneys to present their case.
For the majority of the two days in the federal District Court for the Middle District of North Carolina, the attorneys from SCSJ put on evidence that didn’t seem to have much to do with the legal arguments of one person, one vote or racial gerrymandering.
It wasn’t until the final witness, on Tuesday, Feb. 7, that the key element of the racial gerrymandering allegation was revealed. The final witness, Dr. Jowei Chen, an expert on elections from the University of Michigan, testified that, according to his computer simulations, one of the eight City Council districts had 2 percent more black voters than could have been achieved with districts drawn at random.
At that point, it seemed apparent that what the plaintiffs had been doing was padding their case. It would be analogous to when a student is supposed to turn in a 10-page paper and, when they finish the first draft, it’s only five pages long. The student in most cases goes back and adds five pages of filler. For most of Monday, Feb. 6 and Tuesday, Feb. 7, Eagles presided over a courtroom where witness after witness testified about matters that didn’t appear to be relevant to the legal issues in the case.
In fact, before closing arguments, Eagles told the SCSJ attorneys arguing against the new districts that she did not understand what much of the testimony had to do with the case. In the closing arguments she found out – not much.
The legal issue is not whether sitting Greensboro city councilmembers thought the proposed change to eight districts was a good idea or whether they were told about it in advance. The issue is whether the new districts infringe on the rights of voters by strategically overpopulating some districts and under populating others based on political party and race.
And yet almost everyone in the courtroom assumed that the citizen plaintiffs represented by the SCSJ would win. Not because they had convincing arguments and not because they had a great legal argument, because it was spotty at best, but because this is a political issue. This is a case of the Democrats on the Greensboro City Council and Democratic citizens of Greensboro suing the Republican-led North Carolina legislature and their decision to redistrict.
Eagles is a Democratic judge appointed by President Barack Obama. Her earlier decisions in the case have favored the Democrats and there is no reason to think that she is not going to decide in favor of the Democrats.
In fact, the attorneys who were involved in the case were so certain that Eagles would decide that a 2 percent deviation in one of eight districts was so out of the norm it had to be overturned, the final 30 minutes of the trial was spent arguing about whether Guilford County would have to pay the legal fees and expenses for the SCSJ.
Guilford County would only have to pay if the SCSJ won the case, so at least in the minds of the attorneys, and apparently Eagles, there was so little doubt about the outcome of the case that it made sense to argue about the legal fees and expenses before a decision in the case had been made.
Another reason for all the shenanigans in the courtroom is that there was no opposing attorney to object or cross-examine witnesses.
It’s pretty sweet if you are the plaintiff and you get to sue someone who had no involvement in the action you are suing about and who will not defend that action.
Former Guilford County Commissioner Skip Alston led a group that had hired an attorney and was granted the right to intervene in the case in support of the Board of Elections, but when the group discovered that if SCSJ won the case they could be required to pay the attorneys fees and costs for SCSJ, the interveners dropped out.
Judge Eagles described the trial as “unusual.” Others used the term weird. It was like watching a basketball game with only one team on the floor. In other words, extremely one sided and not very interesting. In basketball at least you could expect some spectacular dunks. There were no spectacular dunks in the courtroom, of the basketball kind or the legal kind.
Payne could have chosen to cross examine witnesses and make objections, which would have been helpful since many of the witnesses and questions asked had little to do with the issues the lawsuit sought to resolve, from a layman’s point of view.
On the second day, Judge Eagles had finally had enough irrelevance and asked that the questioning be moved along.
For example, Anna Fesmire was questioned about her education, her community involvement, the history of the League of Women Voters, all evidently to get on the record that the League of Women Voters had taken out a full-page ad in the News & Record opposing House Bill 36, which was not the bill that the passed the legislature and that the lawsuit was challenging.
Nearly every witness, with the notable exception of the expert witnesses, was given the opportunity to say something disparaging about State Sen. Trudy Wade. And Wade figures prominently in the legal brief.
What was generally passed over is the fact that Wade had nothing to do with drawing the eight-district map that was the subject of the lawsuit. That map was drawn by the conference committee.
Wade got the ball rolling with Senate Bill 36, but the map she introduced had seven districts. The map that actually passed in House Bill 263 was an eight-district map that was based on a map developed by Rep. Jon Hardister. But Hardister was generally praised if his name was mentioned at all.
According to the lawsuit, HB 263 is unconstitutional because it violated the one man, one vote rule and violated the rights of black voters by creating a predominately black district that had 2 percent more black voters in the district than could be achieved by drawing the districts randomly. It was also noted that there were more predominately black districts than were required.
It’s pretty strange to see black civil rights leaders like Nelson Johnson, former City Councilmember Goldie Wells, state Sen. Gladys Robinson and City Councilmember Sharon Hightower get up and support a law being overturned when one of the reasons for overturning it is that it has too many minority-majority districts.
Currently Greensboro has two predominantly black City Council districts; with HB 263 that was raised to three predominantly black districts and another district with a significant black population.
It’s the reason Alston came out in favor of the plan. He said he knew that three out of eight was better than two out of nine.
But according to the lawsuit, there was no reason to draw three black districts because blacks don’t have any trouble getting elected to office in Greensboro. The SCSJ attorneys kept pointing out that Greensboro had been electing black city councilmembers in at-large races since the 1950s, which is true but extremely misleading.
Up until the current plan of five district councilmembers, three at large and a mayor at-large (commonly called the 5-3-1 plan), was passed by the City Council in 1982, all city councilmembers were elected at large.
With seven running at-large, and tremendous support from black voters, one black city councilmember could be, but wasn’t always elected. It’s the reason that the late. Dr. George Simkins fought so hard and so many years for a district system.
The witnesses for SCSJ also pointed out that since 1993 the voters had regularly elected a black at-large city councilmember. What nobody ever mentioned is that since the passage of the 5-3-1 plan, only one black candidate has ever won an at-large race for City Council or mayor – City Councilmember Yvonne Johnson. If you discount Johnson – who was the first black at large councilmember, the first black mayor pro tem and Greensboro’s first black mayor – then you don’t have a single black person who has won an at-large city election under the current plan.
However, if the arguments made by the SCSJ attorneys are accurate and black candidates have no trouble getting elected at large or even in predominantly white districts, then there is no reason to have any minority-majority districts at all. In fact there was very little talk of the Voting Rights Act or the fact that without two minority-majority districts a redistricting plan would most likely not be approved by the Justice Department.
The clear implication of the testimony by the expert witnesses was that the only way to legally draw districts was to not consider political party or race. It’s difficult to draw two minority-majority districts without considering race, and political party was certainly a consideration in the Guilford County Board of Commissioner districts when drawn by the Democrats, and more recently when drawn by the Republicans. It was also a consideration when the state House and Senate districts were drawn and when the congressional districts were drawn. It cannot be considered an accident that when Democrats drew those districts they favored Democrats and when Republicans drew the districts they favored Republicans.
The SCSJ attorneys spent hours getting testimony from city councilmembers that seemed to have very little to do with the legal arguments. Mayor Nancy Vaughan, Councilmembers Marikay Abuzuaiter and Hightower, all testified about their experiences and what they had heard or believed about the redistricting plan.
The main point of the mayor and city councilmembers was that they weren’t consulted before Wade introduced SB 36 and they preferred the 5-3-1 system to either a seven-district or an eight-district system.
After the witnesses testified, Eagles noted that there is nothing inherently wrong with an eight-district system.
One point that was made over and over again is that under the eight-district system, six sitting councilmembers were double bunked, which means two were placed in one of the new districts and only one could be reelected.
This was presented as if it were the result of some kind of evil plan. But if you go from a system with three at-large and five district councilmembers to eight districts, you have to have a certain number double bunked because all of the at-large members are currently double bunked, meaning they all live in a council district represented by a sitting councilmember. It would in fact be impossible to draw any number of districts and not have councilmembers double bunked. It was not some nefarious plan to double bunk councilmembers; it was simply math.
They also made the point that At-large Councilmember Abuzuaiter was placed in a district that she was unlikely to win. If an opposing council had been there he or she might have pointed out that Abuzuaiter didn’t win her home precinct in the last election. It hardly seems the fault of the map drawers that Abuzuaiter is not popular in her own neighborhood.
One of the most troubling witnesses was Robinson, who said she was a “Greensboro resident” and had “lived in Greensboro for about 50 years.”
According to voter registration records, Robinson is a High Point resident, and before moving to High Point she lived for a number of years in Pleasant Garden.
Robinson also said that when Wade introduced SB 36 in the state Senate, “I was very surprised. I’d heard nothing about it.”
Robinson, in fact, was at the meeting of the Guilford delegation with the Greensboro City Council held at the Blandwood Mansion in December 2014, where Wade was asked if it was true that she was considering a redistricting bill and Wade said that it was. The meeting was widely reported in the press and that was the big news out of the meeting and the possible redistricting was written about many times after the meeting and before the bill was introduced.
With no attorney representing the opposition, Robinson’s statements were not challenged but accepted as true statements made by a public official under oath.
When Eagles was making comments at the end of the trial – if it could be called a trial since only one side of the argument was presented – she asked when filing for the City Council election would begin. Filing opens for City Council races in July, and it appeared Eagles didn’t think she would have any trouble meeting that deadline. She did say that she might be able to get through all the documentation in a few weeks and render a decision.