Three-judge panel to rule on plaintiffs’ claims of illegal gerrymandering next Tuesday
The trial on North Carolina redistricting ended with the bombshell that blew a hole in Republican claims of transparency, and included testimony from an array of mathematicians that computer programs could rarely, if ever, reproduce GOP-approved plans.
The NC League of Conservation Voters, Common Cause, the state NAACP, and a group of voters backed by the National Redistricting Foundation are challenging the congressional, state House, and state Senate redistricting plans as extreme partisan gerrymanders and for diluting Black voting strength.
Phillip Strach, a lawyer for Republican legislators defending their maps, said the plaintiffs’ experts used “black box computer algorithms to draw conclusions about political intent.” The experts rigged their algorithms to use standards less strict than those use by Republican map-drawers, he said.
The three-judge panel hearing the case this week must have a written ruling by Tuesday. The judges must decide whether the GOP redistricting plans violate the state constitution. The losing side is almost sure to appeal the decision to the state Supreme Court.
States must draw new legislative and congressional districts at least once every 10 years after each census to account for population changes. In North Carolina, the party controlling the legislature is in charge of map-drawing, and typically draws district lines to its benefit.
Expert witnesses cast doubt on GOP lawmakers’ claims
Mathematicians and political scientists testifying for those challenging the maps said computer algorithms they used to create maps rarely, if ever, produced maps as favorable toward Republicans as those the legislature approved.
Attorneys for Republican lawmakers didn’t even try to defend the congressional plan, said Elisabeth Theodore, a lawyer representing the National Redistricting Foundation-backed plaintiffs, in her closing argument Thursday. “That silence speaks volumes,” she said.
Nor did those attorneys present an expert with an extensive analysis of the congressional districts, but Sen. Ralph Hise, a redistricting committee chairman, said those districts were drawn to limit county divisions.
The congressional plan the legislature approved is a “partisan outlier at both the district and statewide level,” Jowei Chen, a political scientist from the University of Michigan at Ann Arbor testified this week. “The Republican bias in the enacted plan cannot be explained by North Carolina’s political geography” – where voters live – or the redistricting criteria the legislature adopted.
The congressional and legislative maps “exhibit and entrench a quite large partisan skew” and dilute the opportunity for minority voters to elect candidates of their choice, said Moon Duchin, a mathematician and redistricting expert at Tufts University. She compared the expected election outcomes using the legislature’s new maps with results from 52 statewide elections over the past decade.
The legislature’s maps are notable not only for their partisan skew, but for their durability, Duchin said. Even in a good election year for Democrats, that party’s candidates would win only four of 14 of the state’s congressional seats. “I don’t think you get that large and durable effect by accident,” Duchin said.
The math and political experts also found the House and Senate maps were skewed to Republicans’ advantage.
The Republican defendants had their own expert, Michael Barber, a political scientist at Brigham Young University, who said testified that the “enacted plan is not a partisan outlier.”
However, a lawyer for the National Redistricting Foundation asked Barber about his deposition, in which he agreed that the enacted House and Senate plans are partisan outliers compared to numbers he produced. The Senate plan would produce 20 seats held by Democrats and 30 held by Republicans, giving the GOP a veto-proof majority in that chamber.
Republicans said they did not use information on partisanship or race to create the plans, and that the district lines result from their decision to avoid splitting municipalities.
Secret maps disclosure draws fire from plaintiffs
Republican lawmakers emphasized that the redistricting process was the “most transparent ever,” promising to draw all maps on public terminals in rooms where viewers could watch them in real time. It appeared to be a break from past practice, where Republicans had a well-known GOP redistricting guru draw maps in secret that maximized GOP advantages.
However, Rep. Destin Hall, the House Redistricting Committee chairman testified Wednesday that he asked an aide, Dylan Reel, to create “concept maps” that he could use. Those concept maps were drawn privately. Reel had them on his phone and showed them to Hall while Hall was using a public terminal to draw the House redistricting plan.
In an earlier deposition, Hall said he asked for the maps so he could “go in and have some game plan on how to draw given districts.”
In his testimony, Hall said he barely used the maps Reel provided. “I drew what I wanted to draw,” he said.
Hall repeatedly maintained before and after the maps were drawn last year that the work would be done in public, and no outside maps would be used.
Rep. Zack Hawkins, a Democrat from Durham and a House Redistricting Committee member, told the court that he felt lied to.
Hilary Klein, a lawyer for Common Cause and the NAACP, pounded on the revelation that Hall had maps drawn outside public view, in conflict with his public assurances. “Representative Hall misled his colleagues and he misled the public,” she said.
Republicans repeatedly said they used no information on partisanship or race to create the maps. Hall testified that legislative staff knew about those restrictions, but he did not confirm with Reel that the concept maps complied with those guidelines. The maps Reel provided were not saved. He left his job at the legislature last year to become a lobbyist.
The defense pushes back
Strach said the focus on the concept maps was evidence of the challenger’s weak case.
Testifying for Republican lawmakers, political scientist Andrew Taylor of NC State University said the North Carolina legislature has more discretion over how district lines are drawn than do legislatures in most states. The violations of the state constitution that challengers cite don’t apply to redistricting, he said. “There’s no real historical association between redistricting and those four provisions of the North Carolina state constitution – Free Elections, Freedom of Assembly, Freedom of Speech, and the Equal Protection clauses.”
However, state courts have ordered changes to legislative redistricting practices based on the North Carolina constitution. A lawsuit brought by Republicans in 2001 and decided in state courts resulted in multi-member districts being disallowed and in the enforcement of a “whole county” rule that guides redistricting today. In 2019, a three-judge panel decided that 2017 legislative districts violated Democratic voters’ rights in a lawsuit based on those same four provisions of the state constitution. Lawmakers were forced to redraw legislative districts for the 2020 election.