North Carolina’s Continuing Redistricting Saga

If the recent news on North Carolina’s political maps and redistricting has you confused, you’re not alone.

And, unfortunately, it may be awhile before our state gets any clarity on how to draw legislative and congressional districts.

First, we get the news on May 22 that the U.S. Supreme Court ruled (in a 5 to 3 opinion*) that “our Congressional maps were unconstitutional.” Unfortunately, the media has been slow to explain that the Supreme Court ruling was on maps the legislature had already replaced – in 2016 before the primaries.

You may recall North Carolinians voted in two primaries in 2016. The first one, in March, included all the races except one state Supreme Court contest. But the votes in two congressional district primaries were not counted because a panel of three federal judges had ruled that two of the congressional districts were unconstitutional.

When the court ruled the maps unconstitutional, the Republican-led legislature went ahead and drew new congressional maps at the same time they appealed the court’s decision to the Supreme Court. However, the new congressional maps were submitted for approval in February 2016, barely a month before the primary. That necessitated a June primary because the ballots had already been printed for the March primary and people were in the process of casting their absentee ballots. Ultimately, the June 2016 primary ballots included only the congressional races (using new district lines) and the single Supreme Court contest.

In the end, the U.S. Supreme Court’s May 22 decision on congressional districts may impact future map drawing and lawsuits, but it had no effect on current maps.

But it was quickly followed by another high court ruling.

On June 5 of this year, two weeks after the initial ruling on the old Congressional maps, the U.S. Supreme Court affirmed another lower court ruling that Republicans relied too heavily on the use of race when they drew the state legislative maps in 2011. The court specifically cited the 28 (nine Senate districts and 19 state House districts) minority-majority districts drawn to comply with Section 2 of the Voting Rights Act.

This decision was on a different lawsuit (challenging both the congressional and legislative districts) than the lawsuit acted on in the May 22 ruling. The U.S. Supreme Court sent the redistricting case back to the North Carolina Supreme Court for review, with the admonition that the court must take into account the May 22 decision.

 

Knowing that the state Supreme Court has approved the same legislative maps twice before does not help us as we attempt to understand just what the justice system is trying to achieve on North Carolina’s district maps.  In the two previous reviews, the state Supreme Court upheld the districts, saying that though race played a role in the development of the district lines, the lawmakers had done so to comply with the Voting Rights Act and previous federal court rulings.

Since the last time the state Supreme Court ruled on the legislative district maps, however, there has been a significant change in the makeup of our state’s Supreme Court. In the “non-partisan” November 2016 election for state Supreme Court justice, Mike Morgan (Democrat) beat incumbent Bob Edmunds (Republican). Morgan’s election tipped the balance of the court to the Democrats. There is little doubt among court watchers that there will likely be a different outcome in the ruling on North Carolina’s legislative maps in the third round before the state high court.

Also on June 5, the U.S. Supreme Court rejected the federal court’s order for the state to immediately redraw the legislative districts and to hold a special election this year to elect new legislators. This order would cut the constitutionally mandated two-year term of the duly elected legislators, elected in 2016, to one year.

It’s interesting to note that when the U.S. Supreme Court affirmed the lower court’s ruling (that Republicans had relied too heavily on the use of race), they did so without comment, but when they vacated the order from the district court to immediately redraw the districts and hold a special election, they dedicated three pages of explanation, ending with what sounds like a scolding. They wrote:

“… the District Court addressed the balance of equities in only the most cursory fashion … For that reason, we cannot have confidence that the court adequately grappled with the interests on both sides of the remedial question before us. And because the District Court’s discretion ‘was barely exercised here,’ its order provides no meaningful basis for even deferential review. … For these reasons, we vacate the District Court’s remedial order and remand the case for further proceedings consistent with this opinion.”

So, where do all these decisions being handed down from the U.S. Supreme Court leave the voters of North Carolina? Probably still confused, and our new governor has been of little help.

Almost immediately after the June 5 order, Democrat Gov. Roy Cooper called for a special legislative session to redraw the legislative districts. Yes, that’s right, the governor called for a special session while the legislature was already in session. He also knew the U.S. Supreme Court had remanded the case back to the state Supreme Court for consideration and had also asked the district court to reconsider its order for an election in 2017.  Leaders in both state houses quickly rejected Cooper’s demand for a special legislative session, calling it a political stunt.

Senate President Pro Tem, Phil Berger explained that legislators were waiting for direction from the courts before they make their next move. That is a painful irony for North Carolina voters: Judges have said legislators considered race too heavily in drawing the districts, but it still isn’t clear what percentage of minority voters in a district is acceptable to the courts. Until there is such a decision, confusion will continue to reign.

*New Supreme Court Justice Neil Gorsuch did not participate in the decisions of the last month, because he was not part of the original discussions. Justice Clarence Thomas voted with the liberal justices, believing that race should not be considered a factor in redistricting.