Attorneys in the cases challenging the state’s 2011 redistricting plan were back before the state Supreme Court Monday morning, arguing whether certain of the districts survive constitutional scrutiny under the U.S. Supreme Court’s recent decision in Alabama Legislative Black Caucus v. Alabama.
A majority of the justices here had upheld the challenged districts in a December 2014 decision, which had since been pending at the nation’s highest court until the justices there vacated the decision and remanded it back for further review.
Like their counterparts in Alabama, state lawmakers here drew voting maps based upon statistical formulas they claimed were necessary to avoid Voting Rights Act liability, with little regard to what had been happening on the ground in terms of minority political control.
But that “on the ground” analysis was required, the majority of justices said in the Alabama case – ruling that the mechanical use of race-based goals in drawing electoral districts is not justified by the Voting Rights Act and that any districts so drawn were subject to strict scrutiny under the Equal Protection Clause.
The questions before the court were twofold, said Eddie Speas, one of the attorneys for the plan’s challengers:
“Are the districts in these cases subject to strict scrutiny because race was the predominant factor the state used to assign citizens to those districts?” Speas asked.
“And if so, can the defendants show that they did not use race more than necessary to comply with the Voting Rights Act, properly interpreted?”
He directed the court’s attention to illustrations of one of the challenged districts, showing irregularly-shaped appendages dense with African-American voters, and mentioned precincts split to create the challenged districts.
“Race clearly predominated,” Speas said. “There are no legitimate redistricting criteria that explain the appendages.”
The state defendants had admitted as much, he added.
But Tom Farr, an attorney for the state defendants, argued that factors other than race were also involved when drawing the districts. “Political considerations and incumbency protection played a role in drawing these districts,” he said.
That claim contradicts lawmakers’ public statements at the time the plan was adopted as well as their testimony in the record, according to Speas.
“When defendants answered the complaints in these cases, they asserted 50 separate defenses. Not one of them had anything to do with politics.”
Lawmakers also went too far in their use of race to meet their quota of filling the challenged districts with “50 percent plus one” black voting age populations – pointing not only to the irregular shapes resulting from having to reach beyond prior lines to pull in black voters but also to the number of precincts split in the process.
In Alabama, the justices noted seven precincts split in one district as warranting strict scrutiny. As the challengers argued in briefs submitted to the court, the number of split precincts in North Carolina far surpassed that:
Split precincts were used to build all the districts challenged in these cases. Senate District 5 has 40 split precincts; SD 14 has 29; SD 20 has 35; SD 21 has 33; SD 28 has 15; SD 32 has 43; SD 38 has 8; SD 40 has 16; House District 5 has 6; HD 7 has 22; HD 12 has 35; HD 21 has 25; HD 24 has 12; HD 29 has 14; HD 31 has 13; HD 42 has 15; HD 48 has 31; HD 57 has 15; HD 99 has 7; HD 106 has 3; HD 102 has 13; and HD 107 has 9.
“When district lines go block by block to divide voters, divide neighbors into different districts because of their race, even in counties where candidates of choice of African American voters have experienced long and substantial political success, the electorate’s confidence in the integrity of the democracy is undermined,” Anita Earls, another attorney for the map’s challengers told the court.
“When precincts are split to create bizarrely shaped districts, it becomes much harder for voters to participate in the political process. It’s harder for them to know which district they live in, who represents them, it’s harder for candidates to know who’s in their district. “
The state defendants argued that the North Carolina Supreme Court in its 2014 ruling used an analysis similar to that adopted by the high court in Alabama and submitted that the justices here should just reaffirm that ruling.
That prompted Justice Robin Hudson to jump in, asking Tom Farr why, if that was the case, the high court even remanded the case – prompting this exchange:
Hudson: Mr. Farr, what do you think the U.S. Supreme Court wants us to do on remand if we’ve already applied the right test?
Farr: The Supreme Court often remands cases after a landmark decision comes out, and quite often the lower court reaffirms their decision and the Supreme Court doesn’t takes review of it. So the Supreme Court did not make any judgment or claims on this case, it just asked this court to take a look at it as an additional matter based upon the decision in Alabama.
Hudson: Well they did vacate our previous decision. So what it is that you think they want us to do?
Farr: They want you to look to see if the test in Alabama is the same one you applied in your previous decision.
The parties challenging the 2011 plan are asking the court to declare the challenged districts unconstitutional and direct the General Assembly to enact new redistricting legislation within two weeks to then be presented to the three-judge trial court panel for further review.
That relief, if granted, may not come soon, since it took the court nine months to render its first decision on the constitutionality of the 2011 plan.
From there, regardless of who prevails, another trip to the U.S. Supreme Court is likely, making a final resolution before the 2016 elections doubtful.