In June, Civitas reported on “North Carolina’s Continuing Redistricting Saga,” now, six months later, while the saga continues, it may be better characterized as a debacle.
Last week Phillip Strach, the attorney for the defendants in North Carolina’s redistricting case before the U.S. District Court for the Middle District of North Carolina, known as Covington v. North Carolina, signaled that there is only one way for the case to go – the U.S. Supreme Court.
Strach represents North Carolina in the lawsuit (Covington v. North Carolina) that has overturned the legislative maps which were approved six years ago by the U.S. Department of Justice after the last U.S. Census. In a December 11 filing, Strach asked the Court to issue its final ruling no later than January 10, 2018. In order to expedite the final ruling, Strach asked the court to move up the previously scheduled January 5, 2018 hearing to “on or before” December 22, 2017. In the motion Strach said; “Doing so will protect the state’s ability to seek meaningful Supreme Court review and take additional legislative action if necessary.”
The Court immediately denied Strach’s request. According to the News and Record, U.S. District Court Judge Catherine Eagles said the Republican legislators were seeking to “impose their own expedited schedule on the court, the “Special Master” and other parties at virtually the last moment.”
Eagles said; “The court anticipates that the January 5, 2018 hearing will begin with a short presentation by the “Special Master” as to his recommendations. Thereafter, each side will have one hour to present oral argument in support of their position.”
The controversial “Special Master” is the newest player injected into the legislative redistricting case. He is perhaps the only reason (at this point) for signifying an appeal to the U.S. Supreme Court even before a full outcome to the case before the Federal District Court.
On September 15, 2017, 15 days after the Legislature submitted new legislative maps to the three-judge panel, and before the panel had commented on the new districts, plaintiffs floated the idea of a “Special Master” to take over the redistricting process. In a separate filing, the plaintiffs said; “the defendants are not entitled to yet another opportunity to correct constitutional problems with the legislative districts.”
It took an additional six weeks for the District Court to issue an order appointing Nathaniel “Nate” Persily, a Stanford law professor, as “Special Master” to “assist the Court in further evaluating and, if necessary, redrawing” the revised maps.” They ordered Persily to have the new districts drawn by December 1, 2017.
According to the AP, the attorney for the Republican lawmakers objected to the appointment of the “special master,” writing that “The legislative defendants are concerned that the appointment of a special master as described by the court will instead affirmatively obstruct the state’s ability to exercise its sovereign right to redistrict in the first instance.”
The “Special Master” met the December 1, 2017 deadline and seemed to satisfy the plaintiffs’ criticisms. Not so the defendants. In a filing on December 8, Defendants argued,
“The special master’s final report demonstrates why the process adopted by the Court is unworkable and inappropriate. A court may not draw new maps (or empower a special master to do so) before finding a violation to remedy. Perry v. Perez, 132 S. Ct. 934, 941 (2012). Drawing remedial maps in the absence of an adjudicated or admitted problem with the existing maps is a recipe for precisely the kind of constitutional disaster that Perry is supposed to prevent.”
While Persily wrote that “he applied generally accepted principles of unbiased redistricting in revising the districts and pointed out steps he took to be sure he wasn’t favoring one political party over the other, it has been reported that in fact, his rendition favors Democrats.
The “Special Master” remedy could be a dream come true for North Carolina’s political Left who have clamored for the creation of non-partisan redistricting commission to supplant the legislatures responsibilities ever since Republicans took control of the Legislature in 2010. For more than one reason, it would be a travesty to have a non-partisan redistricting process forced on our state. First, the North Carolina Constitution clearly states that the General Assembly is responsible for redistricting. Second, if the Federal District Court were to step into a political fight and take sides in how our state chooses to redistrict, it would accurately paint them as an activist court.
North Carolina is famous for its redistricting lawsuits. North Carolina redistricting cases are taught in law school and have been used as a guide by legislatures when doing redistricting over the years. The current case, Covington v. North Carolina is likely to only be taught as a “how not to” when it comes to judicial intervention in redistricting.
It’s easy to confuse all of North Carolina’s redistricting cases, especially when the cases are active and in different phases. It may even be more confusing now, because most of the lawsuits stemming from the 2011 redistricting processes charged that Republicans relied too heavily on race when drawing new maps. In these cases, plaintiffs argued that the Republicans illegally packed black voters into a few districts and weakened their political clout. Defendants, in all the cases, argued that Section 2 of the Voting Right s Act of 1965 required them to use race to draw majority-minority districts first.
Click here for a timeline of Covington v. North Carolina. The timeline includes important dates for other active redistricting cases in North Carolina, including Dickson v. Rucho and Harris v. Cooper.
While we wait for the three-judge panel of the Federal Court to take up Covington v. North Carolina again on January 5, 2018, it’s interesting to consider how decisions on other lawsuits affect how the legislature works on redistricting plans.
For instance, through litigation in the 1980s and 1990s, North Carolina’s redistricting process was honed to the point that the courts gave the legislators specific guidelines to produce maps. Case in point: In Stephenson v. Bartlett (2002) the Court required a step-by-step method to encompass the “whole county provision” with the other laws. Based on the law, in 2011, legislators followed these guidelines.
Most recently, Republicans admitted that, though race played a role in the development of the 2011 district lines, it was only done to comply with the Voting Rights Act and previous federal court rulings. Because the latest court rulings decided Republicans had relied too heavily on race to draw the districts in both the Congressional and legislative maps, the Republicans are now drawing districts without looking at racial data. That doesn’t seem to satisfy the plaintiffs either. They now say that the Republicans are supposed to look at race. Thus, we’ve come to the real problem; the Courts have placed limits on racial gerrymandering without telling anyone just what the limits are.
Another interesting development from the numerous lawsuits arising out of North Carolina’s 2011 redistricting maps is that they have cast a positive light on the 2013 U.S. Supreme Court decision, Shelby County v. Holder case.
Shelby County v. Holder struck down the coverage formula used in Section 5 of the Voting Rights Act as unconstitutional, reasoning that the formula was no longer responsive to current conditions. Ultimately, the Court did not strike down Section 5, but without a coverage formula, Section 5 became unenforceable.
Section 5 was the preclearance requirement of the historic Voter Rights Act. It prohibited certain jurisdictions from implementing any change affecting voting without receiving preapproval from the U.S. Attorney General or the U.S. District Court for D.C. These jurisdictions were supposed to determine if the change would discriminate against “protected minorities.”
The coverage formula was originally designed to include jurisdictions that had been determined to have engaged in egregious voting discrimination in 1965. Congress updated the formula in 1970 and 1975 and the formula was ultimately struck down in 2013, nearly two years after North Carolina’s maps were approved by the Obama Justice Department – headed up by former Attorney General Eric Holder.
While Obama’s DOJ quickly approved North Carolina’s 2011 legislative and Congressional maps, the approval has done nothing to stop endless litigation over the maps. The maps have been portrayed as racist and bigoted, proving that the preclearance requirement had turned in to little more than a dog and pony show. A show that lawmakers were afraid to touch, because they thought they would be portrayed as racist and bigoted. They were right too. When the Courts finally stepped in and struck down the Section 5 formula, the Left was outraged over the “racist” Court and anyone who might agree with them.
North Carolina’s redistricting saga is bound to continue. It is possible that legislative filing and primaries will be delayed. It has happened before. In 2016, the Congressional primaries were held in June. In 2002 and 2004 legislative primaries were held in September and July respectively. So, what can we be sure of?
This case will go to the U.S. Supreme Court, if the Federal panel of judges approves the “special master’s” plan. The appointment of a supposed “nonpartisan” outsider by the Middle District Court is an over-step, on the court’s part. Additionally, the appointment is in conflict with the North Carolina Constitution which clearly gives the responsibility of redistricting to the state’s legislative branch.