Political and racial gerrymandering myths

In these political times the last rationalization of liberals tired of losing is the cry that everything they don’t like legislatively is because of the “gerrymander.” On NBC, CNN and MSNBC in May 2023, Gov. Roy Cooper said: “Technologically, diabolical gerrymandering. Some of the worst in the country.” He didn’t like limitations on abortion or expansions of school choice, and this seemed to explain his inability to stop it. 

As David Larson pointed out in his essay “Super-technologically-diabolical Gerrymandering” (Carolina Journal May 19, 2023), there was no political gerrymander that formed the 2023-2024 session of the General Assembly. There may have been one Republican political gerrymander in the past (2017-18) and there may be more in the future. But the current legislature is the result of a Democrat political gerrymander in 2022 of the state Senate and congressional delegation.

The House map was passed almost unanimously, hardly evidence of any kind of political gerrymander. The congressional map was drawn by special masters chosen by the Democrat Supreme Court. They were ordered to use political criteria to create a Democrat result. 

What about racist gerrymandering

When they’re not blaming the nonexistent political gerrymander, the other cry is a “racist gerrymander.” Let’s look at that more carefully.  

In the 2010 general elections, House Republicans picked up 16 seats using a 2004 Democrat-crafted political gerrymander to make a (68 – 52) majority (one independent joined Republicans). The GOP picked up 11 seats in the state Senate for a super majority, (31 – 19).  

After the census of 2010, the General Assembly had the legal duty to redistrict the entire state, applying federally required population criteria and the state constitution’s “whole county” provision. The assembly proceeded to do so, but there was a complication. Federal law required, under the Voting Rights Act, that “racial gerrymandering” must be done to create minority-majority districts where possible.

The U.S. Justice Department, run by Attorney General Eric Holder, appointed by President Barack Obama, approved the maps. They were also approved by the state Supreme Court twice and by federal courts. In 2014 African American Democrats made big gains, but it did not help Democrats as a whole. Republicans gained even more seats and obtained supermajorities in the House (77 – 43) and expanded them in the Senate (34 – 16). 

The U.S. Supreme Court changed its mind (Alabama Legislative Black Caucus v. Alabama, 2014) and decided that what it required in 2011 was hereafter prohibited as an illegal racial gerrymander. The maps would have to be redrawn. The 2011 North Carolina maps were attacked again under this new U.S. Supreme Court doctrine. The maps were redrawn for the 2016 election. 

But the narrative had been set by the then-legal maps drawn in 2011. Republican legislators must have had race in their hearts (retroactively) instead of complying with the Voting Rights Act and U.S. Supreme Court decisions. They must be bad people. They were guilty of not reading the future minds of Supreme Court justices. 

On July 29, 2016, the McCrory case decision came down from the Fourth Circuit just in time for the general election. It claimed that the Voter ID bill (passed in 2013) had been crafted “with almost surgical precision” to disadvantage black voters. The Appeals Court disregarded the evidence from the only election where voter ID had been used in 2016. The trial judge heard dozens and dozens of witnesses and found that not a single African American voter who tried to vote was prevented from doing so.  

On Saturday, July 30, 2016, I read in the New York Times of the “scurrilous attempt by North Carolina Republicans to suppress the rising power of black voters.” It made me feel bad, maybe I had missed something in the 25,000 pages of exhibits or in the 479 pages of the trial judge’s analysis of the evidence. But I had not yet read the McCrory Fourth Circuit decision.  

After reading the decision, I was perplexed, amused, and angry. I was perplexed because the appeals court decision ignored Supreme Court precedents, amused because the “evidence” marshaled by the Fourth Circuit was in turns ludicrous or logically fallacious. I was angry because the overwhelming will of the people had been thwarted under the guise of combating racism. 

What was the proof that the Fourth Circuit found of legislative racism? Not much. The opinion makes clear that: 

“our conclusion does not mean, and we do not suggest, that any member of the General Assembly harbored racial hatred or animosity toward any minority group.” 

Without any evidence that any of the 170 members of the General Assembly, Republican or Democrat; black, white or Indian; men or women, were intending to discriminate against African American voters, the Fourth Circuit pinned on the collective body an intent which there was no evidence that any member harbored. 

Then the court marshaled another argument. At one of the public hearings Don Yelton, a GOP precinct chair, delivered a baldly racist statement. The court even cited his call-in to the Daily Show!!  

“The statements do not prove that any member of the General Assembly acted with discriminatory intent,” the decision stated. “But the sheer outrageousness of these public statements by a party leader does provide some evidence of the racial and partisan political environment in which the General Assembly enacted the law.” 

With over 150 statements made at the public hearings, that was the best evidence the Fourth Circuit could find. The statement by a party leader does not mean that any member of the assembly paid any attention to it. Members often pride themselves on how little attention they pay to their party. Guilt by association is McCarthyism at its worst.  

In this case the “party leader” was a precinct chair. One vote is usually sufficient to elect yourself as precinct chair. This particular “party leader” was known to be constantly at odds with actual party leaders.  

The next scrap of evidence was “the smoking gun.” The sponsors of the bill requested racially disaggregated data of various election methods. This request was made pre-Shelby (2013), when the U.S. Supreme Court declared unconstitutional certain provisions of the Civil Rights Act that required pre-clearance to changes in election law. It would have been legislative malpractice for the sponsors of the bill to have not requested this data prior to Shelby. The District Court carefully explained this in its 479-page opinion. The Court of Appeals ignored this obvious fact. 

The next bit of “evidence” of discriminatory intent was the passage of the bill right after Shelby. The House bill was filed and considered months prior to Shelby. Although they spoke against it, Democratic leaders in the House complemented the chair of the Election Law Committee, former Republican House Rules chair Rep. David Lewis, for a thorough and proper process. After Shelby, the Senate Rules chair announced there would be an “omnibus bill.” The Fourth Circuit apparently thought the word “omnibus” had the same meaning as “ominous” and that it suddenly sprang out of the sea foam of the Aegean, like Aphrodite. But that is not what happened. The legislation which the Senate added to the House bill had been filed in the Senate for months. 

The Fourth Circuit, engaging in the logical fallacy identified by Aristotle 2500 years ago —  post hoc ergo propter hoc — decided that the bill was passed because of the unprecedented gains of African Americans in electing Democrats in 2012 and that suddenly this bill became law in 2013 when Shelby gave the green light.

But nothing of the sort happened. There were unprecedented gains of African Americans in the elections to the state House and Senate. But that did not help Democrats. In 2014 Democrats had their worst election outcome in 144 years, losing to super majorities in the House (74 to 26) and Senate (34 to 16), as well as the governorship, and with Republicans retaining a majority on the Supreme Court.   

Neither did these reforms come because of Shelby. Voter ID came out of the 2000 Bush/Gore razor thin election in Florida, followed by the Jimmy Carter/James Baker report in 2005. That report recommended photo voter ID. Republicans filed multiple voter ID bills: H.B. 10 in 2003, H.B. 794 in 2005, H.B. 285 in 2007, and H.B. 430 in 2009.  

To say that photo voter ID came because of Shelby is ludicrous. In 2010 House and Senate Republicans, then in the minority, made, as part of their 10-point campaign platform, photo voter ID as one of the laws they would pass within the first 100 days if they were given a majority. In 2011, H.B. 351, “Restore Confidence in Government,” was passed by the House and Senate and vetoed by Democrat Gov. Perdue. Photo voter ID in 2013 was passed then because there was finally a governor (McCrory) who would sign it.