EDENTON, N.C. (WGHP) – The North Carolina Supreme Court’s hearing Tuesday about gerrymandering and voting districts played something like a rerun.
There were familiar characters discussing what have become all too redundant issues about how voting districts are drawn and who should draw them. New was the old venue, the historic Chowan County Courthouse, but that’s not all.
The defense argument may have been finetuned as a precursor for what we will hear in the U.S. Supreme Court in the next few weeks.
That’s when the nine federal justices will consider whether the General Assembly should draw voting maps for federal elections without oversight from state courts, a case that has evolved from the very foundation being argued Tuesday.
Before we explain that connection, you must understand why the seven state justices again were asked to hear these arguments and render another opinion.
You may recall that in January the NC Supreme Court, in a 4-3 vote along partisan lines, ordered a trial court in Wake County to take the maps drawn last fall by lawmakers and see that they are fairer for Congress and the General Assembly. A 3-judge panel did just, setting the districts for the current election cycle by having the General Assembly under the oversight of special masters draw new districts. The trial court and the Supreme Court accepted lawmakers’ work for legislative maps but had special masters redraw the congressional districts.
Lawyers for three groups largely under the name of “Harper defendants” asked justices Tuesday to order those legislative maps to be redrawn, too. They argued that the trial court didn’t follow the orders of the Supreme Court.
If you listened to Hillary Klein for Common Cause and Elisabeth Theodore for a group of voters, you heard familiar terms that address minority voters, “equal protection,” “compact districts,” “crossover districts,” “gerrymandering” and the higher math of ratios and proportions.
But then Phil Strack took over for the General Assembly – as he always does in North Carolina and has in other states, too – to argue what will be the issue heard by SCOTUS: that the General Assembly should have full responsibility to draw election maps.
Legislative leaders led by House Speaker Tim Moore (R-Cleveland) had appealed their loss in state courts on the congressional maps to the federal bench, but that was rejected largely because of timing. Associate Justice Brett Kavanaugh in that ruling though opened the door to the court’s hearing the broader argument about province, which we learned in June would happen.
The chief justices from all 50 states, the Conference of Chief Justices, in a nonpartisan amicus brief written by counsel, last month urged that the Supreme Court should reject the argument, but it sure played out on Tuesday, with Strack more than once talking about “deference” to lawmakers when considering how maps are drawn and their commitment to that process.
What to do?
For what it’s worth, Klein and Theodore focused much of their persuasion on state House and Senate districts in eastern North Carolina that they said had been drawn to dilute the “opportunities” for Black voters to be able to vote for their candidate of choice.
Much of the questioning of them by justices seems to be asking what specifically they wanted the court to do – remand the maps to the trial court or to order a specific map adopted? – and whether their requests were based simply on two districts.
“We are asking the court to order that Common Cause’s crossover districts be adopted,” Klein said. “Remedial districts are the best ways to ‘harmonize’ [myriad issues].”
Associate Justice Robin Hudson, a Democrat who is retiring: Why should that be decided by this court and not the trial court?
“Because there is enough evidence from the remedial stage that say this is best,” Klein said. “There probably are other solutions. … The legislature didn’t consider these plans. The best remedy is for this court to address the issue.”
Strack was more focused on autonomy of process. He talked a lot about the redistricting software Maptitude and the metrics and methods used to create the maps the General Assembly had drawn. He talked about variances and proportions and fractions of proportions that various experts had found in the maps.
Chief Justice Paul Newby, a Republican: Has anyone suggested the Maptitude is inaccurate?
Strack: “No one has.”
Newby: When the trial court hired special masters who hired assistants, they literally all came up with different calculations for these metrics?
Newby: “You can use Maptitude or ‘Dave’s Maps.’ …. Pick statewide races to plug into those, you get different outcomes.”
Strack said there are “thousands of ways of calculating these maps. This is no way to conduct a constitutional analysis. … All policy choices that should be made by the legislature.”
Associate Justice Sam Ervin IV, a Democrat asked Strack: “Once the General Assembly makes a calculation, that calculation is binding?”
Strack: “The measure that the General Assembly chooses and the way it chooses to calculate that method should be given deference. … [It] should be accepted unless obviously wrong.”
Ervin: Is the trial court given discretion to decide whether a calculation is incorrect or some other should be used?
Strack: “If there had been evidence that Maptitude had this wrong, that obviously should be addressed. … Both House, Senate and congressional metrics met the metrics this court identified.”
Ervin: Does the trial court have the authority to look at these calculations and a particular set of circumstances that these results aren’t an accurate measure of what the legal standard sought to achieve?
Strack: “If they [legislators] are using the appropriate gaps [variances] and Maptitude, they [the maps] should be accepted. Our argument is that they [judges] have to defer to legislative choice unless they are obviously wrong.”
Hudson: If the trial court is supposed to oversee the legislature, should it review metrics?
Strack: “It should defer to the legislature. It accepted Senate and House maps but rejected the congressional map. … What was the difference? We don’t know because the trial court didn’t tell us.
“How did we reconcile the trial court’s approving the legislative plans and disapproving the congressional plans? We submit you can’t.”