RALEIGH, N.C. (WGHP) – The arguments about electoral maps made before the North Carolina Supreme Court on Wednesday generally boiled down to two specific questions: How should acceptable political gerrymandering be defined? And if the court were to create that definition, would it be acting in a legislative or even political manner?
For just more than 90 minutes in a virtual hearing, lawyers for the North Carolina League of Conservation Voters, the Harper group of plaintiffs and Common Cause appealed to justices to do just that: identify partisan gerrymandering and throw out the maps passed in November by the General Assembly.
Lawyers for the defendants in this case – the legislature – countered that the definition is nowhere in the constitution and that the court should not be part of making that decision and thus becoming a political entity.
When justices might rule is uncertain, but they are expected to act quickly. When they in December delayed candidate filing and the primary election, justices created the window for deciding on suits about the voting maps. Right now, filing is scheduled to begin in late February, with the primary election on May 17.
Plaintiffs’ attorneys continually cited the words from the case they were appealing: a ruling in early January by a 3-judge panel in Wake County Superior Court that there was extreme political gerrymandering in numerous congressional and legislative districts but that the state’s constitution didn’t define what the limits are for using political data to draw election districts that would favor the party in power.
Plaintiffs say the maps intentionally expand the GOP’s edge in the U.S. House from 8-5 to 10-4 or even 11-3 – there is a 14th district added by the census – and cement control in the General Assembly. Legislators and their attorneys argue they didn’t use partisan or racial data in drawing the maps and that their work was the most transparent in history.
The plaintiffs’ attorneys came under more intense questioning from Chief Justice Paul Newby, a Republican, and the legislative attorneys drew more questions from the court’s four Democratic associate justices: Sam Ervin IV, Anita Earls, Robin Hudson and Michael Morgan. Associate Justices Phil Berger Jr. and Tamara Barringer, both Republicans, did not ask questions during the hearing, which was televised on the court’s YouTube channel.
“All three maps are an extreme violation of foundational rights of all North Carolinians,” said Stanton Jones, representing the Harper group, who was the first person to address justices.
Most of the plaintiffs’ support from this claim focused on the various passages in the written ruling by the 3-judge panel, which went on for hundreds of pages. The panel identified specific districts that it saw as extreme outliers. The attorneys also referred to testimony by expert analysts, and those on both sides used the words of the others’ experts to support their own arguments.
The 3-judge panel, in part, wrote that “declaring as unconstitutional, an act of the branch of government that represents the people is a task that is not to be taken lightly. There is a strong presumption that enactments of the General Assembly are constitutional.”
And that became the final question in Wednesday’s proceedings: If the justices were to define extreme partisan gerrymandering, where they acting politically and in fact undermining the court’s reputation as an independent arbiter of the law?
Newby hammered Jones and Zach Schauf, the attorney argument for the NCLCV, on questions about proportionality. Should the allocation of representation be matched to the distribution of voters? They said no.
“That’s not our argument,” Schauf told him. “The will of the people is the principle. The majority of the representatives should be elected by the majority of the people. I don’t find that principle in these maps.”
Said Allison Riggs, representing Common Cause: “These maps discriminate against voters who prefer Democratic candidates.”
Drawing the line
Their arguments referred continually to prior court cases that changed maps and the principles defined in those decisions. The role in computers as arbiters of the work of humans also was batted back and forth.
Republicans had argued – even campaigned – that Earls and Ervin should recuse themselves from the proceedings – as Democrats had asked Berger to do – because of various conflicts of interest. None of the justices recused, and it was apparent during the arguments by the defendants’ lawyers – Katharine McKnight and then Phil Strach – that Earls and Ervin were challenging their arguments and advocacy. Morgan also was active in those questions.
McKnight pointed out that the plaintiffs had not shown to trial judges how to define what is permissible when it comes to political gerrymandering. “The lower court says that no one has drawn the line,” she said.
She also argued that even the analyses and maps by various experts introduced by the plaintiffs showed only a marginal effect on the representation, “maybe one seat in the congressional maps, and in the House and Senate, they hardly made a difference.”
Earls asked McKnight if there is a “bright line” for standards that the court might want to adopt. She said there are different ways for looking at the standards for such a demarcation.
Countered McKnight: “The plaintiffs absolutely have not shown extreme partisan outliers. I ask the court to find the definition of ‘extreme partisan gerrymandering’ [in the constitution]. You will not find it.”
Strach, a veteran of such arguments in various states, bore in on whether the court should play a role in defining or limiting the scope of the general assembly in its constitutionally assigned role of drawing electoral maps.
“If we believe it [the court] can divine some standard no appellate court has before, is it going to be a legislative standard?” he asked. “The court is going to have to make decisions on standards out of whole cloth, like the legislature would do.
“The court could say: ‘Legislators, this is how we would define particulars.’ Which elections could be used for that. … The court would have to tell legislators how to handle ‘cracking’ and ‘packing.’ Do you pack one district if you pack another?
“What is an acceptable map. What is ‘extreme’ vs. what is ‘permissible’? … This court would have to provide policy decisions.”
Asked Hudson: “Doesn’t the constitution allow us to look at the constitutionality of this?”
Strach pointed out that North Carolina’s constitution is vague on these issues. He cited states that have introduced redistricting commissions – an idea that has never risen above bills relegated to committees in North Carolina – or in Florida where gerrymandering was defined in an amendment to the state constitution.
“We’ve not been close [to doing that] in North Carolina,” he said. “The court would be doing that for the people.”
The court’s role
Strach in his arguments also pointed out that computer models don’t take in the human factor. He mentioned state senate districts for Guilford and Rockingham counties, which he said were drawn by Democrats and approved in the Senate by Democrats.
“Computers said those were partisan gerrymanders,” he said. “How can that be true? The computer didn’t know those maps were drawn by Democrats. … If you rely on simulations you are destined to cause more problems than you solve.”
And then he sort of warned justices about setting definitions and drawing lines and defining how legislators should be acting. He said there are those in the public who were starting to doubt the court’s independence based on the fact there even was an appeal of these maps.
“Some groups are thinking the court is acting like a legislative body,” he said. “The court has an obligation to protect the reputation of the court. “Because of the existence of this case people are convinced the court is being a partisan actor.”