As 2017 drew to a close, an often repeated phrase among observers of North Carolina politics was the only thing certain about the 2018 elections was uncertainty.
With the filing period for candidates seeking state House and Senate seats set to open in mid-February, the lines for the election districts remain unclear.
North Carolina lawmakers have canceled primaries for all judicial races and continue to weigh new options for how judges at all levels of state court get to the bench.
Answers to some of the lingering questions might emerge early in January as federal judges hold hearings on a case that will determine the shape of election district maps for state legislative races.
A three-judge panel has scheduled a hearing in federal court on Jan. 5 to get feedback on the district maps drawn by Nathaniel Persily, a Stanford University law professor hired by the court to review maps adopted by the Republican-led General Assembly in late August.
Persily’s assignment came almost 15 months after the three federal judges – James Wynn of the 4th U.S. Circuit Court of Appeals and Catherine Eagles and Thomas Schroeder, both of the U.S. Middle District of North Carolina – ruled that 28 of North Carolina’s 170 districts used to elect legislators from 2011 to 2016 were unconstitutional racial gerrymanders that weakened the statewide influence of black voters.
The lawmakers appealed the decision, but the U.S. Supreme Court unanimously upheld the ruling in June, leaving no question that lawmakers would have to redraw districts before the 2018 elections. In July, after lawmakers still had not presented new maps to the court with proposed fixes for the unconstitutional districts, Eagles and Wynn questioned whether legislators were taking their order seriously.
Waiting for answers
Now, it’s lawmakers who are waiting for the judges to let them know whether the maps adopted in late August still include racial gerrymanders, as the challengers contend, as well as violations of the state constitution that prohibit unnecessary redrawing of election districts in the middle of the decade.
At the 9:30 a.m. hearing in Greensboro on Friday, the judges will hear arguments for and against Persily’s proposed election district changes in Cumberland, Guilford, Hoke, Mecklenburg, Wake, Bladen, Sampson and Wayne counties.
In his 69-page report to the judges in early December with maps and explanations of his proposed changes, Persily said his recommended plan eliminates “all of the constitutional infirmities the Court has identified in the plans enacted by the North Carolina General Assembly in 2017.”
Persily said his plans “represent a limited response to a select number of districts that require alteration to comply with the law.”
The judges asked the lawmakers and challengers to provide them with any questions for Persily by Dec. 27, and if they were deemed appropriate by the court, they would have him respond to them.
Phil Strach, the Raleigh-based attorney representing the lawmakers, posed 42 questions. They sought information about organizations and people consulted by Persily, if he did so between Oct. 26 and Dec. 1, when the report was submitted to the court.
Specific organizations highlighted were: the Campaign Legal Center, a nonprofit that pushes for stricter rules governing money in politics; the state and national NAACP, which have challenged the North Carolina GOP agenda in several court cases; Democracy NC, a voting rights organization that challenged the lawmakers’ election law overhaul in 2013; Common Cause NC and the national organization; as well as the National Democratic Redistricting Trust.
The lawmakers have asked Persily to acknowledge whether he used racial data to draw district lines and to state whether incumbency was considered in some of his proposed districts.
In late August, when the new maps were adopted, the Republican lawmakers who led the redistricting process said the lines had been drawn without any consideration to the race of voters in the districts.
6 seats and veto-proof majority
They had given weight, they said, to protecting incumbents in a legislative body where Republicans dominate with numbers that allow them to override Democratic Gov. Roy Cooper’s vetoes by holding 35 of the 50 Senate seats and 75 of the 120 House seats.
A previous draft of Persily’s plan appears to make it easier for Democrats to defeat Republican incumbents in four House races and two Senate races. Persily only redrew a fraction of the state’s 170 legislative districts, mostly in urban counties that tend to favor Democrats. Most of the districts drawn in August favor Republicans, according to a News & Observer analysis.
Ending veto-proof majorities could put Republicans in a position of having to negotiate with Cooper and some Democrats on occasion.
To take back the General Assembly, Democrats would need to flip 16 House seats and 11 Senate seats in November.
In the weeks leading up to the Jan. 5 hearing, the lawmakers and challengers of the legislative maps have given glimpses in court documents about what they plan to argue.
The lawmakers plan to call Douglas Johnson, a consultant from Glendale, Calif., “to testify about the extent to which race predominated over other traditional redistricting criteria in the special master’s proposed version of the challenged districts.”
The lawmakers also plan to call elected officials from some of the districts that were changed in Persily’s proposal to discuss the impact at the ground level.
Persily also is expected to be at the hearing.
Looking to Clarence Thomas
Republican lawmakers have told groups through the fall that if the three-judge panel rules against their maps, they plan to appeal to the U.S. Supreme Court.
State Sen. Rick Horner, a Republican representing Johnston, Nash and Wilson counties, told a group of business leaders in October that because lawmakers said they had not given any consideration to race in the 2017 map drawing that Justice Clarence Thomas might be more likely to uphold their maps.
In one of North Carolina’s redistricting cases, one challenging the congressional districts used from 2012 to 2016, Thomas sided with the more liberal justices in determining that race had played too dominant a role in the drawing of the districts struck down in 2017.
“Even if it is contested or the judges change it, we feel very strongly when the Supreme Court voted 5-4 to redo these things, Clarence Thomas was the deciding vote,” Horner told the business leaders, according to an Oct. 10 report in the Wilson Times. “He voted with the other side because he didn’t think race should be included at all. They were saying we did too much for too little. So we haven’t included race at all this time, so we feel pretty confident that when it comes back, if it gets to the Supreme Court, they are going to uphold our maps and Thomas is going to go back over to the other side because we did what he said. We didn’t include race here. So these maps will probably stick, is my point.”
But the challengers and judges have cautioned lawmakers that just because they said race wasn’t considered in the drawing of the new maps, that did not make that the case.
As technology for mapmaking advances and redistricting experts can shape districts down to specific households, the courts have struggled with how to disentangle the roles of race and partisanship when black voters overwhelmingly favor Democrats.
Though the courts have allowed for race to be considered in redistricting plans to comply with the Voting Rights Act, they have ruled that it cannot play a predominant role.
The question comes, too, as the courts are struggling to determine how far lawmakers can go when redistricting for partisan gain.
That, too, is a question that lingered as 2017 came to a close.