The trial phase of Common Cause v Lewis ended last Friday, and we likely have a couple of weeks before we hear the ruling from the Wake County Superior Court. This is a good time to take stock of the case before the inevitable appeal that will eventually take it to the state Supreme Court.
The testimony over the past several weeks tended to focus on measures of the partisan balance of current district maps. Many of those measured relied on an assumption of proportional representation, which is largely alien to our political system and which would not address most of the ails attributed to partisan gerrymandering:
Purported remedies for gerrymandering that aim to balance the interests of competing political parties are unlikely to be satisfactory or enduring. The US Supreme Court, in Rucho v. Common Cause, recently confirmed that the US Constitution protects individual voting rights against discrimination but does not guarantee or even suggest that political alliances are entitled to proportional representation. Moreover, reforms aiming to balance the effects of redistricting upon opposing political parties would fail to address potentially critical adverse consequences of gerrymandering, such as political self-segregation and polarization.
In his Testimony last week, attorney Bill Gilkeson Jr. revealed that he worked with Common Cause on a redistricting project while he worked with Democratic members of the General Assembly drawing maps designed to benefit members of the Democratic Party in 2017. (He also noted in his testimony that he had previously worked with the Southern Coalition for Social Justice in redistricting litigation.) Apparently, neither he nor Common Cause saw a conflict between his work helping the Democratic Party seek partisan advantage in drawing state legislative maps and Common Cause’s supposed work for “fair” maps. That is because the actual goal for both groups is the same: more power:
The real goal of the two primary plaintiffs is also apparent: electing more liberals and Democrats to the General Assembly. In paragraph 7 of the complaint, Common Cause states that the current districts limit their ability to convince voters to “vote in state legislative races.” However, turnout in the 2018 election was near record levels despite there being no major statewide races on the ballot. The rest of the paragraph reveals their true complaint: the new maps “burden Common Cause’s ability to communicate effectively with legislators and to influence them” to pass laws according to the group’s policy preferences.
The wider testimony in Common Cause v Lewis also underscores the danger posed by some of the proposals for redistricting commissions being considered in the General Assembly. One problem common to several of those proposals is the reliance on process reforms for redistricting, such as plans that include maps drawn by “special masters” and those that rely on unelected bureaucrats to staff redistricting commissions. Gilkeson is just the kind of “nonpartisan” expert (who drew district maps for the Democratic Party-controlled General Assembly in 1991 and 2001) who would exert influence on such commissions.
A better proposal is in HB 69, a bipartisan bill that would explicitly acknowledge and incorporate in balanced way the partisanship of individuals involved in a redistricting commission rather than pursue the fiction of non-partisanship in the selection and conduct of commission members.
The most important reform of any proposal would also be the simplest: explicitly banning consideration of factors such as race (other than to comply with the Voting Rights Act), voter registration, or past election results when drawing districts. HB 69 includes those reforms without the problems associated with some other proposals.
As Common Cause v Lewis works its way to the NC Supreme Court, the likelihood increases that some kind of redistricting reform will pass the General Assembly. Choosing the wrong reforms would simply create more problems in our redistricting process.
