By Mike Jennings, Redistricting Committee Co-Chair

Background

Members of the U.S. House of Representatives, the North Carolina House, and the North Carolina Senate run from districts. These districts must have equal populations, within a designated margin of error. As some areas grow faster than others, it is necessary to make adjustments to ensure that everyone’s vote counts the same. These adjustments are made after every decennial census. 

The Federal Government reallocates the 435 US House seats among the states. As an example, in 2010, North Carolina’s population grew faster than the norm, allowing North Carolina to gain one US House of Representative seat, going from 12 to 13 representatives. The North Carolina Constitution sets the number of members of the NC General Assembly as follows: 120 members in the NC House of Representatives; 50 members in the NC Senate. The North Carolina General Assembly has sole authority to redraw Congressional, NC Senate, and NC House district lines.

In the 2010 election, Republicans won control of the NC General Assembly. In 2011, following the 2010 decennial census, Republican leaders redrew Congressional, NC Senate, and NC House district maps to maximize the party’s political power, which is commonly referred to as “gerrymandering.”  In previous decades, the Democrats had majority control of the NC General Assembly and had also engaged in gerrymandering. However, the last decade of redistricting relied on more sophisticated mapping technology that allowed for greater precision in mapping as well as more precise gerrymandering. This summary outlines the decade of litigation that followed.

Congressional Districts (US House) 

Cooper v. Harris - Racial Gerrymander (formerly known as McCrory v. Harris)

In 2011, the North Carolina General Assembly used racial data to draw congressional districts to favor Republican candidates. In October 2013 a group of voters challenged the Congressional map in Federal Court, alleging that the General Assembly packed African American voters into the 1st and 12th Congressional Districts in violation of the Federal Voting Rights Act.  

In February 2016, a three-judge panel struck down the maps and required the General Assembly to redraw them. The General Assembly redrew Congressional maps using partisan data. The state also appealed the panel’s decision, seeking a ruling that the 1st and 12th districts of the 2011 plan did not violate the constitutional prohibition on racial gerrymanders. 

In early December 2016, the US Supreme Court held oral arguments in both Cooper and a racial gerrymandering case from Virginia. On May 22, 2017, the US Supreme Court issued a 5-3 decision in Cooper rejecting the state’s appeal and affirming the panel’s conclusion that race was used impermissibly to configure the two districts.  

Common Cause and League of Women Voters v. Rucho

In response to the US Supreme Court’s ruling, Republicans redrew the 2017 maps. Since they couldn’t use racial gerrymandering, the Republicans designed redistricting maps to maximize Republican partisan advantage. Republican leaders admitted that they were drawing the 2017 Plans for partisan gain. David Lewis, the chairman of the House Redistricting Committee, stated that they designed the districts to elect Republicans in 10 of the 13 districts because it was impossible to draw 11 of the 13 districts to favor Republicans. In a public meeting, Rep. Lewis also opined that he drew the maps to favor Republicans because “it is better to elect Republicans.” Republican leaders hired the same consultant who prepared the 2011 maps, Dr. Thomas Hofeller, to draw these maps.

In 2017, Common Cause and the League of Women Voters both filed suits challenging the 2016 Congressional District maps, claiming that they were partisan gerrymanders. Both suits were combined into one filing. The plaintiffs claimed that the 2016 maps violated the following provisions of the US Constitution:

• The Equal Protection Clause of the Fourteenth Amendment by intentionally diluting the electoral strength of Democratic voters

• First Amendment rights (freedom of association) by retaliating against supporters of Democratic candidates on the basis of their political beliefs

• The right of “the People” to elect their preferred candidates for Congress, in violation of the requirement in Article I, §2, of the Constitution that members of the House of Representatives be chosen “by the People of the several States”

• The Elections Clause by exceeding the State’s delegated authority to prescribe the “Times, Places and Manner of holding Elections” for members of Congress. (Elections Clause of the US Constitution).

On March 26, 2019, US Supreme Court heard Common Cause v. Rucho. On June 27, 2019, the US Supreme Court handed down its decision. The Court’s ruling was that “partisan gerrymandering claims present political questions beyond the reach of the federal courts.” The ruling’s effect was to negate the district court’s opinion which was in favor of Common Cause of North Carolina and the League of Women Voters of North Carolina.

Harper v. Lewis

Since the US Supreme Court found that redistricting is not justiciable in Federal Court, on September 27, 2019, fourteen North Carolina voters filed a lawsuit in NC state court charging that North Carolina’s 2016 congressional map violated the NC Constitution on partisan gerrymandering grounds. The 2016 map, argued plaintiffs, was drawn with express intent to maximize and entrench Republican party advantage in the state’s congressional delegation.  

The plaintiffs contended that the 2016 remedial congressional map violated these provisions of North Carolina’s constitution:

• The Free Elections Clause

• The Equal Protection Clause

• The Freedom of Speech and Freedom of Assembly Clauses. 

The plaintiffs asked the court to declare the map unconstitutional under the North Carolina Constitution and to enjoin the state from using the current map in any further elections. The plaintiffs also asked the court to order the state to adopt a new plan that complies with the North Carolina Constitution. On October 31, 2019,  plaintiffs filed a motion for summary judgment.  

On November 5, 2019, the General Assembly’s Joint Committee on Redistricting, on its own initiative, convened to draw a new plan. The legislators used public terminals. Maps and other requested materials were posted on the General Assembly’s website. A public hearing was held November 13, 2019. On November 15, 2019, the General Assembly passed a new plan.
 

On December 2, 2019, the court decided that while the complaints were valid, the court did not have time to properly litigate the case, which would require delaying candidate filing for congressional seats. The panel lifted the prior preliminary injunction, allowing the 2020 congressional election to proceed under the November 15, 2019 plan.

North Carolina Senate and House of Representatives Districts 

The Republican Party gained a majority in both chambers of the General Assembly in 2010 by “flipping” 18 vulnerable districts. In 2011, Republican leaders redrew NC district maps to maximize their political power, which is commonly referred to as “gerrymandering”. Republican leaders used racial data as a proxy for partisanship to gerrymander NC House and Senate districts in their favor. In the 2012 election, they increased their majority to a supermajority. (Republicans lost their supermajority in the 2018 elections but still had majorities in both the House and Senate.)

NC v. Covington

In 2015, the Covington Case challenged 28 racially gerrymandered districts created in 2011. The Covington case went all the way to the US Supreme Court, and on June 15, 2017, the court ruled the districts violated the Voting Rights Act as racial gerrymanders. The court considered, but did not require, a special election in 2017. Instead, the court allowed a longer timeline for the General Assembly to enact remedial plans.

Common Cause v. Lewis

In 2018, Common Cause challenged the redrawn state legislative maps as partisan gerrymanders in violation of the North Carolina state constitution. Plaintiffs included Common Cause, the North Carolina Democratic Party, and 22 North Carolina voters. The plaintiffs argued that the gerrymandered districts violate the North Carolina Constitution’s equal protection clause, free elections clause, and freedom of speech and freedom of assembly clauses. It went to trial July 15, 2019. 

The plaintiffs hired four experts to analyze the 2017 maps. Three of the plaintiffs’ experts—Drs. Chen, Mattingly, and Pegden—employed computer simulations to generate alternative House and Senate plans to serve as a baseline for comparison to each enacted plan. Even though these experts employed different methodologies, each expert found that the 2017 enacted plans are extreme outliers that could only have resulted from an intentional effort to secure Republican advantage on a statewide basis.  

Plaintiffs’ fourth expert, Dr. Christopher Cooper, analyzed the aggregate vote share of Democratic and Republican candidates in General Assembly elections since 2012.  He found that Democrats received close to or over 50% of the vote in each election. But over the same period, Republicans controlled the North Carolina General Assembly, winning supermajorities in both chambers from 2012-2016 and majorities in 2018. Despite winning close to or more than 50% of the statewide vote in General Assembly elections since 2012, Democrats have “never approached” a roughly corresponding percentage of seats, a sign of “gross disproportionality.” Dr. Cooper also used the results of the 2018 elections to show how, under the enacted NC House and NC Senate plans, Democratic votes translate to seats far less efficiently than Republican votes. When Democrats won seats in the NC House and NC Senate, they won by large margins, meaning that many votes were “wasted.” Republicans won their seats by significantly narrower margins. 

The court gave great weight to the analysis and conclusions of each of plaintiffs’ experts individually. Further, the court found that the consistent findings of each of these experts, using different methodologies, powerfully reinforce that the 2017 plans were extreme, intentional, and effective partisan gerrymanders. The court further found that the 2017 plans protected the Republican majorities in the 2018 elections and that they harmed the NC Democratic Party, Common Cause, and individual plaintiffs. 

On September 3, 2019, the trial court struck down North Carolina’s General Assembly districts as an illegal violation of the North Carolina Constitution’s free election, equal protection, freedom of speech and assembly clauses. The court found the 2017 maps unconstitutional and prohibited their use in the 2020 elections.  

The court further set a deadline of September 18, 2019 to redraw maps in a fully transparent process that must be done in public hearings with visible computer screens, and in which no edits or revisions may be done in private. The order provided redistricting criteria, including prohibiting the use of partisan considerations and election data, a prohibition against using the unconstitutional districts as a starting point for the new maps, and adherence to the Voting Rights Act and other federal law. 

The General Assembly did not appeal the court’s decision and redrew both NC House and NC Senate legislative districts by the September deadline. While the General Assembly did draw maps in public, many occasions were observed where transparency processes were not followed. The court approved the redrawn districts October 28, 2019.

NC NAACP, League of Women Voters of NC, et al. v. Lewis (Four NC House districts in Wake County)

This case was brought in Wake County Superior Court February 21, 2018, by the NAACP, the League of Women Voters of North Carolina, two other organizations, and four individual plaintiffs to contest the legislature’s redrawing of four Wake County districts for electing members of the NC House of Representatives. [The four plaintiffs were League members Cheryl Tung, Elaine Okal, Retta Riordan, and Candace Blackley.) 

The plaintiffs argued that when it redrew two Wake County districts – 33 and 38 – as required by a federal district court, the General Assembly unnecessarily and unlawfully redrew four other Wake County districts – 36, 37, 40 and 41. The complaint demonstrated why plaintiffs believe redistricting of these four was politically motivated in order to help Republican candidates and incumbents. The basis for the complaint was a clause in Article II of the North Carolina Constitution which prohibits mid-decade redistricting.  

On November 2, 2018, a three-judge state court panel issued a unanimous ruling declaring the four state House districts in Wake County to be unconstitutional. The panel agreed that the unnecessary redrawing of NC House Districts 36, 37, 40, and 41 violated the North Carolina Constitution’s prohibition on mid-decade redistricting. The General Assembly did not appeal the November 2, 2018 ruling. The new redistricting plan (HB1017) was unanimously approved on June 24, 2018 and utilized maps drawn by a court- appointed “special master” in 2017 as part of the remedial proceedings of a federal redistricting case, Covington v. North Carolina, outlined above.

Summary

This decade of litigation, with its attendant costs in money and time, demonstrates the need for reforming the redistricting process. The League of Women Voters recommends that redistricting be conducted with full public transparency and citizen participation at all stages. Districts should not intentionally favor or disfavor any individual or political party. The criteria for redistricting:

• Should be based substantially on population (“one person, one vote”)

• Should avoid the dividing of precincts, cities, counties, or communities of interest to form compact and contiguous electoral districts

• Must comply with all federal laws.