Editor's Picks

Redrawing of four NC Congressional Districts ruled unconstitutional: Gerrymandered districts not fixed in time for the fall 2018 midterms

Defendant lawmakers argue the shifting of voters was a ripple effect required to remedy the constitutional defects.

The latest ruling in a string of decisions regarding North Carolina congressional redistricting was released in November 2018 receiving praise from several political advocacy groups on a state and national level.  Political opponents have been in a long-standing debate over the redistricting of NC congressional voting districts.  The hot topic issue was recently reignited on November 2, after an NC court found that several of the 2017 remedial congressional changes as part of a court-ordered redistricting plan for the state house of representatives were expressly in violation of the North Carolina Constitution.

 

Last November’s decision in North Carolina State Conference of NAACP Branches v. Lewiswas just one of many of the latest developments within a much larger feud that has embroiled state politics for several decades.  A special three-judge panel hearing of the North Carolina General Court of Justice, Superior Court Division, was responsible for determining the constitutionality of the redistricting of four Wake County House districts as drawn by the NC General Assembly in 2017 during their court-ordered redistricting plan.

 

Reconfiguration of house districts violated the state constitution.

 

The special panel, led by Judges Paul Ridgeway, Joseph Crosswhite, and Alma Hinton granted the plaintiff’s motion for summary judgment, ruling against defendant lawmakers because the “reconfiguration of the house districts violated the state constitution because altering those four districts was not necessary to comply with federal law.” The court ordered that “the NC General Assembly must revise the four Wake County House districts no later than July 1, 2019 (or before adjournment of the regular session of the GA) so that the redrawn districts can be used in the 2020 elections.”

 

The constitutional violation in Lewis that led to the summary judgment ruling against lawmakers was Article II, Section 5 of the North Carolina Constitution.  This provision provides that once established, “the representative districts and the apportionment of Representatives shall remain unaltered until the return of another decennial census of population.” This constitutional safeguard prevents lawmakers from redrawing congressional districts except after completion of the latest census.

 

Most recently this census was performed in 2010, with districts accordingly redrawn in 2011.  However, that’s when things began to get messy. In a separate suit, North Carolina v. Covington,  the 2011 house redistricting was later found to be unconstitutional by the court for the impermissible use of racial gerrymandering.  The United States Supreme Court then affirmed the decision. Due to the ruled unconstitutionality of the districts, the court ordered the General Assembly to redraw the maps by July 31, 2017, to remediate these defects.  The remedial redistricting plan that was set in place by the court’s order became the basis for the recent litigation in NAACP v. Lewis.

 

 

The plaintiffs in NAACP v. Lewisare the North Carolina Chapter of the NAACP, The League of Women Voters, and Democracy North Carolina who argued the unauthorized redistricting of Wake County House districts 36, 37, 40, and 41 during the 2017 remedial redistricting plan was an impermissible use of the court system by lawmakers.  Plaintiffs allege in their complaint that “it was an effort to redraw districts to substantially alter the political performance of minority voters” located therein, and changes to these four districts were not required to remedy the constitutional defects the court had found in districts 33 and 38.

 

Defendant lawmakers argue the shifting of voters was a ripple effect required to remedy the constitutional defects.

 

However, defendant lawmakers claimed that an exception to the NC Constitution would allow the changes because they performed to comply with federal laws.  Defendant lawmakers argued that the shifting around of voters in Districts 36, 37, 40, and 41 was primarily a “ripple effect” which was necessary to remedy the constitutional defects ordered by the court for Districts 33 and 38. The defendants cited the NC case Stephenson v. Bartlett, which provides an exception to the standard constitutional restraint found in Article 2, Section 5. The exception permitted in the Stephenson case allows the legislature to “violate the provisions of the state constitution to the extent necessary to comply with federal law.” This exception allows lawmakers to perform remedial redistricting when ordered by the court, as was the case in 2017. However, does this exception enable lawmakers to adjust other house districts that were not found unconstitutional by the court?

 

The primary issue for the three-judge panel in NAACP v. Lewisbecame whether or not the changes to congressional house districts 36, 37, 40, and 41 were necessary to remedy the constitutional defects in Districts 33 and 38 ordered by the Covingtoncourt.

 

The Maestro of Gerrymandering

 

The General Assembly enlisted Tom Hofeller to craft the court-ordered redistricting plan.  Raleigh News and Observer reporter Rob Christensen once titled Hofeller as, “the maestro of gerrymandering” who not only “knows how to shape districts for maximum political effect, but he understands the nuances of the law and what will likely withstand court challenges.” In an August 2017 article, Christensen credited the 2011 Hofeller-designed NC districts with “giv[ing] the GOP a veto-proof legislative majority that has resulted in one of the more dramatic rightward shifts in the public policy of any state in the country.”

 

In the 2017 redistricting plan, Hofeller initially was instructed only to change Districts 33 and 38, where the Covingtoncourt held there was evidence of impermissible racial gerrymandering.

 

Lawmakers argue their criteria provided for no consideration of racial data.

 

The complaint filed before the court in NAACP v. Lewisprovided a glimpse of the criteria lawmakers provided to Hofeller when performing 2017 court-ordered remedial redistricting.  David Lewis (R), Senior Chairmen of the NC House of Representatives Select Committee on Redistricting for the 2017-2018 session was in charge of overseeing the redistricting efforts, and he argued that the committee expressly provided for “no consideration of racial data” in their plan.  The lawmaker’s criteria provided to the court explicitly stated that “data identifying the race of individuals or voters shall not be used in the drawing of legislative districts in the 2017 House and Senate plans.”

 

However, the NAACP argues that while these criteria might have been in place, they were indeed not followed.  On August 20, 2017, the General Assembly released their revised house redistricting plan, and after three days of review, the plaintiffs in the Covingtonsuit noticed some serious red flags with the proposed plan.

 

There were several unannounced changes to House Districts 36, 37, 40, and 41.

 

The plaintiffs noticed that there were several unannounced and unnecessary changes to House Districts 36, 37, 40, and 41; four districts located in Wake County that had not been found unconstitutional by the court.  The plaintiffs then provided the committee with an alternative congressional map that showed it possible to reconfigure the two affected districts to remedy the racial gerrymandering without changing the four Wake County districts that were altered without authorization.

Despite these concerns, the House Select Committee led by Lewis, along with Ralph Hise, chairman of the committee, approved the revised House plan on August 25, 2017, without addressing the alleged issues.  A few days later on August 31, the General Assembly also adopted the plan without addressing the unauthorized changes.  On September 7, 2017, the General Assembly filed the proposed remedial plans with the court.

 

Evidence showed the possibility of fixing the constitutional defects without the alteration of the Wake County Districts.

 

Once the plans had been filed with the court, the plaintiffs brought the unauthorized changes to the judge’s attention.  The three-judge panel enlisted the help of a special master to determine if the four unauthorized changes to the Wake County districts were needed to remedy the known constitutional defects of the two other House districts, or if the changes were unwarranted.  The special master heard expert witness testimony presented by the plaintiffs which conclusively showed the possibility of remediating the constitutional defects as ordered by the court without the alteration of the Wake County districts. The court ordered these changes into effect on January 19, 2018, to the disappointment of defendant lawmakers.

 

Then in a bizarre and unexpected turn of events, the United States Supreme Court intervened.  The Supreme Court issued a stay of proceedings order on February 8 which halted the implementation of the judgment and led to the Wake County district changes staying in place, despite being ruled unconstitutional by the court.  This twist created the need for continued litigation brought about by the NAACP and other plaintiffs in NAACP v. Lewisto remedy the unconstitutional changes to the Wake County House districts that were left in place by the Supreme Court’s stay order.

 

Plaintiffs allege the additional changes were for political gain and to subvert the voting power of others.

 

Plaintiffs in NAACP v. Lewisagain argued to the court that the remedial changes violated the state constitution, as the prior judges had found in the Covingtoncase, and that policy consideration could never justify non-compliance with the state constitution. The plaintiffs in NAACP v. Lewisfurther alleged in their complaint even with constitutional authorization, permitted by the Stephensonexception, electoral trends in Wake County strongly suggest that the reason for these additional changes was “for political gain and to subvert the power of the voters.”

 

The complaint filed before the court goes into detail and alleges that Districts 36 and 40 were “altered to boost Republican performance in an effort to reverse voting trends within those districts that indicated growing dissatisfaction with Republican incumbents.”  The gerrymandering that plaintiffs described is known as “cracking.” Cracking is a form of gerrymandering that attempts to spread opposition voters into as many districts as possible, to dilute their voting power. Most often, cracking targets the influential votes of racial or other minorities who may pose a threat to waning incumbent candidates.

 

The plaintiffs also alleged that “the redistricting of House District 41 was to move democratic voters into a district that would already be electing a Democratic House member.”  “Packing,” as it has been dubbed, is when the majority party in the state legislature tries to cram as many opposition voters into a particular conceded district as possible.

 

Packing usually targets a district that the majority has already conceded as a loss which then serves to funnelin the opposition votes.  Packing allows the majority party only to concede selected districts, rather than potentially lose multiple districts had those votes been lawfully dispersed.  Packing as many of the opposition votes into the conceded district as possible is effectively taking those votes away from other closely contested district races – diluting the voting power of the targeted classes.

 

Partisan Advantage or Racial Bias? Courts have held that protecting incumbents is constitutional.

 

Lawmakers, though, have a different side of the story, arguing that any policy considerations on their end were not unconstitutional.  To bolster their argument defendant lawmakers claimed that if anything, their considerations were for partisan advantage.

 

Professor of Government at UNC Chapel Hill Robert Joyce was interviewed by the Raleigh News and Observer about the use of partisan advantage in North Carolina redistricting.  In that interview, he stated that courts have “indisputably held that drawing districts to protect incumbents is constitutional, and  . . .  to draw districts to protect the power of those drawing the districts is constitutional.”

 

The decision may have arrived a little too late for justice to be served.

 

Ultimately, the three judges in NAACP v. Lewisunanimously ruled in favor of the plaintiffs, finding that the Wake County House districts had been redistricted without good cause, and ordered the General Assembly to remedy the changes to the districts within the next year.  However, the decision may have come a little too late for justice to be indeed served.  The court’s ruling in NAACP v. Lewisdid not have any impact on the state’s mid-term elections, as the unconstitutionally drawn districts were in place for November polling.  The advantages of partisan gerrymandering became evident when the votes were counted.

 

Although the numbers are unofficial until confirmed by the state, Political columnist Brian Murphy cites statistics that appear to show that Republicans won 50.3 percent of the votes for Congress. However, they took an overwhelming 10 of 13 available seats.  The lopsided numbers show that while Republicans only received 1.9% more of the vote, they won 7 more seats than their Democratic counterparts. These statistical disparities are evidence of the impact that partisan gerrymandering can have on the state’s elections.  Do not be fooled though, gerrymandering has been a prevalent issue among North Carolina’s lawmakers on both sides of the political spectrum, with evidence of both parties participating in partisan gerrymandering.

 

Gerrymandering is nothing new for North Carolina.

 

While gerrymandering is nothing new for North Carolina, it was so bad at one point in the 1980s that under the Federal Voting Rights Act, the US Department of Justice had to approve all redistricting maps passed by the North Carolina Legislature.  The unusual shapes and proportions of Democratic majority held Senate Redistricting Committee maps from 1992 received backlash from many disgruntled voters and politicians and were eventually redrawn in 1997 after a court found them to be illegally gerrymandered.

 

Current Governor of North Carolina Roy Cooper (D) has received public backlash as a legislator who once played a role in North Carolina’s gerrymandering of the 1990s.  This issue has repeatedly plagued voters on both ends of the political axis as power balances have shifted within the State Legislature and voting trends have changed over the years.  The prevalence and extreme nature of gerrymandering within North Carolina’s House Districts have led to national spotlight. Several of North Carolina’s districts like the 1st, 4th, and 12th, have routinely been titled as several of the “most gerrymandered districts in the United States.”

 

The inception of Independent Redistricting Committees

 

The court’s order in NAACP v. Lewisis a logical next step towards achieving voter equality for all North Carolina citizens.  But with the districts slated to be redrawn in the next year, the question becomes, how can these districts be ethically and legally redrawn to avoid unconstitutional gerrymandering and extreme partisan bias? Several solutions have emerged across the country, but each has received its praise and criticism.  States like California have adopted an independent commission, separate from the state government, to draw their congressional districts.

 

Statistics show the independent redistricting system may be working effectively, with approval ratings of the California State legislature increasing over 10% since the inception of the independent redistricting committee in 2010.  While seemingly a good option, North Carolina opinion columnist Ned Barnett noted it would first require North Carolina voters to be able to “elect legislators who are open to this system, and willing to give up their control of the process.”

 

An appeal will go to the state Supreme Court

 

In the wake of the court’s ruling, WRAL Statehouse commentator Travis Fain reports that Senior Chairmen Lewis reiterated the message that, “legislative leadership will review the decision in the coming weeks and decide next steps.”  Lewis also told reporters that “an appeal would go to the state Supreme Court.”  Ultimately, as pressure mounts and all eyes fixate on the General Assembly, it seems that state legislators will need to tread lightly when planning their efforts for the next remedial redistricting plan.

 

Kevin Latshaw
About Kevin Latshaw (3 Articles)
Kevin is a third-year student at the Campbell University School of Law and currently serves as the Editor-In-Chief for the Campbell Law Observer. Originally from Wilmington, North Carolina, Kevin majored in Integrated Marketing Communication and minored in Entrepreneurship at The University of North Carolina Wilmington. While at UNCW, Kevin interned at the New Hanover County Public Defender’s office. Before starting law school, Kevin spent a summer in Washington, DC studying regulatory framework for start-ups at the Duke Law D.C. Summer Institute on Law and Policy. During his second year of law school, Kevin and his co-counsel earned second place in the Richard T. Bowser Intramural Client Counseling Competition. Kevin is active on campus and serves as the President of the Professional Law Student Association, and served as Treasurer for the Lambda Law Society. Additionally, he serves as a third-year class Representative for the Student Bar Association. During the summer of his 2L year, Kevin studied International and Comparative Law at the University of Cape Coast, Ghana. When he returned from his travels he served as a legal intern for the U.S. Committee on Refugees and Immigrants. He spent his summer with USCRI working Pro Bono on immigration matters for clients facing deportation and removal. This Fall, Kevin will be a Legal Extern in the General Counsel office of a large corporation in Raleigh, N.C. Kevin has interests in corporate business law as well as international law and relations. After graduation Kevin is interested in working in a corporate setting, or in the public sector.
Contact: Email