Where things stand and what's next in gerrymandering saga

by Melissa Boughton, NC Policy Watch, September 22, 2017.

The 2011 state legislative maps – which have been used in three separate election cycles and six statewide elections – are among the largest racial gerrymanders ever encountered by a federal court.

The three-judge panel enforcing the remedial redistricting process in North Carolina v. Covington issued a scathing opinion earlier this week explaining why they didn’t order special elections to right the “widespread, serious, and longstanding nature of the constitutional violation.”

Judges James Wynn, of the 4th U.S. Circuit Court of Appeals, wrote the opinion and was joined by U.S. District Judge Catherine Eagles and U.S. District Judge Thomas Schroeder. Wynn and Eagles were appointed by former President Barack Obama. Schroeder was appointed by George W. Bush.

Ultimately, the factors the panel weighed favored the plaintiffs’ request to hold a special election and they wrote that any intrusion on state sovereignty would be “more than justified by the severity and scope of that violation and its adverse impact on North Carolina voters’ right to choose – and hold accountable – their representatives.”

The court initially ordered a remedial special election but on appeal, the U.S. Supreme Court stayed its ruling and ordered that the panel make further considerations about the remedy. At the end of July, the panel denied the request for a special election and issued a timeline for lawmakers to redraw the gerrymandered maps.

The 48-page unanimous opinion released Tuesday explains why the judges denied the plaintiffs request.

“Notwithstanding these weighty considerations favoring a special election, we nonetheless conclude such an election would not be in the interest of Plaintiffs and the people of North Carolina,” it states. “The compressed and overlapping schedule such an election would entail is likely to confuse voters, raise barriers to participation, and depress turnout, and therefore would not offer the vigorously contested election needed to return to the people of North Carolina their sovereignty.”

Anita Earls, Executive Director of the Southern Coalition for Social Justice and lead attorney for the Covington plaintiffs, said they really appreciated the careful way the court balanced the interests at stake.

“We took great encouragement from the way the court recognized the severity of the violations, and they didn’t take lightly the way voters are harmed by these gerrymandered districts,” Earls said in a Thursday phone interview. “I think they also showed respect for the elections process and the need for voters to have time to learn who the candidates are.”

“I think my clients feel the urgency of being able to finally elect representatives from fair districts but we still don’t have fair districts,” she added.

Earls said that in hindsight, the schedule they presented the court didn’t have built-in time to really “quibble” with the legislature about the remedial districts.

“At the time we made the motion for special elections, we didn’t know what the General Assembly’s remedy would look like, but we in good faith trusted they would do it right and they didn’t do it right,” she said.

The plaintiffs object to 12 districts in the remedial maps that lawmakers submitted to the court. They allege federal and state constitutional violations and filed remedial alternative maps.

The remedial alternative maps, along with a letter outlining alleged constitutional violations, were submitted to lawmakers during the redistricting process. Democratic leaders in both the House and Senate unsuccessfully tried to get the redistricting committees to adopt the alternative maps.

Earls said she found it disingenuous that the legislature didn’t address the constitutional issues the plaintiffs raised during the redistricting process when they filed their new districts with the federal court.

North Carolina and its lawmakers have until 5 p.m. tomorrow to respond to the plaintiffs’ official objection to their maps that was filed with the court last week.

After Friday, the three-judge panel can either adopt lawmakers’ maps or reject them and either adopt the plaintiffs’ alternative maps or hire a special master to redraw the racially gerrymandered districts altogether.

After lawmakers were criticized by the courts for relying too heavily on race in the 2011 maps, they chose during the most recent mapmaking process not to use race at all, despite objections from the public, Democratic legislators and voting rights advocates.

In the court filing of the new maps, legislative defendants make clear that data regarding race was not used in the remedial redistricting plans.

Lawmakers are represented by Raleigh attorneys Phillip Strach and Thomas Farr, who has been tapped by President Donald Trump to fill the nation’s longest running federal judicial vacancy, located in the U.S. District Court for the Eastern District of North Carolina.

“No information regarding legally sufficient racially polarized voting was provided to the redistricting committees to justify the use of race in drawing districts,” the court document states. “To the extent that any district in the 2017 House and Senate redistricting plans exceed 50 percent [Black Voting Age Population (BVAP)], such a result was naturally occurring and the General Assembly did not conclude that the Voting Rights Act obligated it to draw any such district.”

The court had ordered lawmakers to explain any redrawn district that was over 50 percent BVAP in its filing with the court.

There were nine districts in the 2011 Senate map that were over 50 percent BVAP and there is one such district in the new proposed map (it’s in Guilford County). There were 23 such districts in the 2011 House map and there are three in the new proposed map (Mecklenburg, Martin and Northampton counties).

Here are some statistics about BVAP in comparing the 2011 maps to the new proposed maps:

• 43 House districts and 17 Senate districts lost BVAP in the new proposed maps compared to the 2011 ones.
• Of those districts, eight House districts and five Senate districts lost more than 10 percent BVAP.
• The three House members whose districts lost the most BVAP percentage are: Jean Farmer-Butterfield (-19.2%), Garland Pierce(-15.1%) and MaryAnn Black (-13.8%).
• The three Senate members who lost the most BVAP percentage are: Paul Lowe (-32.2%), Don Davis (-19%) and Joyce Waddell(-13%).
• 36 House districts and 19 Senate districts gained BVAP.
• The House members who gained the most BVAP percentage are: Mary Belk (30.5%), Bob Steinburg (20.8%) and Darren Jackson(17.4%).
• The three Senate members who gained the most BVAP percentage are: Jerry Tillman (30.2%), Louis Pate (17.8%) and John Alexander Jr. (16.7%).
• 41 House districts and 14 Senate districts neither lost nor gained BVAP.

Earls said the ultimate issue under a racial gerrymandering test is whether or not race predominated over all other redistricting criteria. She noted in the interview and in the plaintiffs’ court filing that it’s important to look at more than just BVAP when determining whether gerrymandering took place.

“The mere fact that you have a majority black district doesn’t by itself tell you that race predominated,” she said. “You have to look at the underlying geography and distribution of voters and how the lines combine precincts or census blocks.”

The four districts the Covington plaintiffs allege are still racially gerrymandered are Senate districts 21 (Hoke and Cumberland counties represented currently by Sen. Ben Clark) and 28 (Guilford County represented currently by Sen. Gladys Robinson) and House districts 21 (Wayne and Sampson counties represented currently by Rep. Larry Bell) and 57 (Guilford County represented currently by Rep. Pricey Harrison).

In their objection, the plaintiffs give an explanation for why each of those districts is still racially gerrymandered and they don’t rely solely on BVAP.

Take Senate district 21 as an example. It’s BVAP is 47.51 percent in the new proposed map – that’s a -4 percent difference from the 2011 map, which looks better on paper than it is, according to the plaintiffs.

The plaintiffs contend in the filing that the district is not geographically compact and that the lines were drawn to pack most of the black voters in Cumberland County into the district because it cuts through downtown Fayetteville, picking up only the majority Black Voting Tabulation Districts as well as almost all of the city’s majority-black census blocks.

Clark, who currently represents the district, wrote in an email Thursday that a quick visual comparison of the 2017 plan versus the 2011 reveals a more compact district.

“However, it is important to note, many citizens assume that because a district is drawn more compactly it is free of gerrymandering. This is a false assumption,” he wrote. “The racial gerrymandering that is present in the new 2017 plan for [Senate district 21] is only marginally less than was the case in the 2011 plan. In the 2017 plan, the [district] BVAP value is still 20 points higher than the [adjoining Senate district 19] BVAP value; there is absolutely no rational justification for such a disparity.”

Senate district 19 encompasses part of Cumberland County and the BVAP in the new proposed map is only 25.99 percent.

In a declaration submitted to the court in the plaintiff’s objection, Clark wrote that packing voters into district 21 had the partisan effect of creating the disproportionately white adjoining district 19, which resulted in the election of a Republican senator in 2012, 2014 and 2016.

Harrison represents the district with the highest BVAP percentage in the House and Senate in the new proposed maps– House district 111 at 60.75 percent BVAP, which is more than 10 percent higher than the 2011 map at 50.69 percent.

The district was already one of the 28 deemed racially gerrymandered and Harrison said Thursday that Republican legislators somehow made it worse.

“It certainly wasn’t cured by the [new] maps,” she said.

She said she has been honored and grateful to serve her district but the gerrymandering has diluted the influence of voters, noting that Guilford County used to have competitive races.

Harrison pointed out that Republicans drafted the same mapmaker this time around as they did in 2011, nationally-known GOP mapper Tom Hofeller. She highlighted some of the effects of the new maps which resulted in areas being given and taken away from districts ultimately to protect Republican legislators.

“You have to know that they knew what they were doing,” she said.

Harrison added that her hope is the three-judge panel will require Guilford County to be redrawn.

In an amicus brief supporting the plaintiffs, the North Carolina NAACP argues that it’s constitutionally inadequate for the legislature not to use race at all to remedy its racial gerrymanders.

“To cure the constitutional violation created by their 2011 racially-gerrymandered districts, the General Assembly should have examined race data in concert with other traditional redistricting principles to ensure that the purposeful unconstitutional racial gerrymander that has deprived black voters of their voting rights for six years is fully remedied and to draw fair districts that comport with federal and state constitutions and laws,” the brief states.

The NAACP cites a 1970’s education case to make the point that “remedial consideration of race is generally necessary in racial discrimination cases to ensure that the violation is cured ‘root and branch.’”

“Instead of enlisting criteria that would advance the goal of ensuring that the excess packing of black voters and the suppression of their electoral influence would be adequately reversed, however, the leadership of the General Assembly adopted criterion prohibiting the consideration of race,” the brief states. “Moreover, it did so while otherwise bolstering the political advantages it had gained through its prior discriminatory and unconstitutional use of race by adopting as substitute criteria ‘election data’ … and ‘incumbency protection,’ both of which protect the very lawmakers elected under the unlawful 2011 plans.”

The NAACP has asked the three-judge panel to reject lawmakers’ proposed maps and appoint a special master to “draw remedial legislative maps that properly consider race, fully remedy the constitutional violation, and comport with all federal and state constitutional and statutory requirements.”

The plaintiffs asked the court to adopt part of the Senate and House districts and part of their alternative maps to remedy the violations pointed out in the objection. In the alternative, the plaintiffs request that the court sustain their objections and order a special master to redraw those districts.

The panel could make a ruling based on all the information that has been submitted to the court or schedule a hearing for oral arguments. There’s no set timeline for them to make a decision.

“I think it is important to get something in place quickly,” Earls said of the remedial maps.

William Munn, Policy Analyst, Budget & Tax Center, contributed to this report.

http://www.ncpolicywatch.com/2017/09/22/ncs-gerrymandering-saga-things-stand-whats-next/