Lost or destroyed, handling of secret NC maps may have broken state law

Redistricting materials are public records and come with a duty to preserve. So what happened to Republican "concept maps" in NC gerrymandering case?

Posted 8:44 p.m. Jan 10, 2022 — Updated 8:44 p.m. Jan 10, 2022

Travis Fain

, WRAL statehouse reporter

North Carolina law requires state officials to preserve public records, and the law says redistricting documents are just that.

Yet somehow, after a key Republican lawmaker revealed the existence of secret “concept maps” used to draw parts of North Carolina’s new state House districts, no one could find them.

They were, in the words of GOP lawyers, “not saved, and currently lost and no longer exist.” Or as lawyers on the other side of the legal struggle over North Carolina’s election maps put it: apparently “destroyed, with no trace remaining."

The maps are part of a lawsuit challenging the state’s new congressional and legislative districts, which were drawn by the General Assembly’s GOP majority and approved in November. Progressive groups asked judges convening in Wake County Superior Court to declare those districts unconstitutional and order a redraw that would likely elect more Democrats by undoing what they believe to be an illegal partisan gerrymander.

A lower court decision is due by Tuesday, and the case could reach the state Supreme Court in the coming weeks.

The concept maps are important because, among other things, their existence casts doubt on promises by Republican lawmakers that they didn’t rely on election data in what they’ve called the most transparent redistricting process in state history.

What’s more: The maps’ disappearance could be a violation of the state’s open records law.

“No question there’s an obligation to keep it,” said Michael Crowell, a lawyer and retired UNC School of Government professor and expert in constitutional law, voting rights

Eddie Speas, a former deputy attorney general who has researched how the state open records law treats redistricting files, agreed.

“Laws the General Assembly itself has enacted treat all communications between members of the General Assembly and their staff about redistricting maps as public records, and impose a duty on them to preserve and not destroy those records,” he said.

State Rep. Destin Hall, who drew the official House map, said in a deposition late last month that he consulted these concept maps while doing so. Those maps weren’t statewide, but focused on a few key parts of the state, and Hall described them as part of a “game plan” to help him through a complicated process in a timely manner. He also called these maps “nonconsequential” in producing the final map.

Hall said the concept maps were drawn by Dylan Reel, an attorney and, until December, Hall’s legislative aide and general counsel. Reel is now a lobbyist with the law firm McGuireWoods.

Hall, R-Caldwell, testified that he didn’t ask whether Reel consulted with national Republican officials, or whether he used election data, to draw the concept maps. Hall said he didn’t need to.

“My staff knew we were not using election data,” Hall said in his deposition.

Hall didn’t return WRAL News messages seeking comment. Nor did Reel, who was never deposed in this case.

Speaker of the House Tim Moore’s office responded to interview requests Friday, saying Hall’s testimony “speaks for itself.” Moore’s spokeswoman didn’t acknowledge receipt of a WRAL News open records request seeking Hall’s concept maps, despite several requests.

Many questions remain. It’s not clear what mapmaking software was used to draw these concept maps or how they ended up on Reel’s cellphone, which Hall said he used at times to view these maps as he sat at a public computer terminal in the state legislature, drawing the official state House map.

Nor is it clear how they were “lost,” to use Hall’s lawyers’ words.

“That’s the part that needs explanation,” said Crowell, the former UNC professor. “What happened to the map? … It’s stating the obvious: If you’re creating a map on the computer, it’s on the computer.”

Reel’s role

The three-judge panel in last week’s redistricting trial agreed that the concept maps should have been provided in the case.

But the judges stopped short of issuing sanctions, in part because Reel isn’t a legislative employee any more, and therefore isn’t “subject to the demands or requests” from Hall or other legislators. The plaintiffs could have subpoenaed Reel directly, the court said, either for his testimony or the maps.

They did not, a spokesperson for the plaintiffs said, because of time constraints. The plaintiffs’ legal team also argued in a motion that any maps Reel drew as a legislative employee should have been provided when they subpoenaed Hall and other legislators for troves of redistricting documents.

Hall revealed the concept maps in a Dec. 27 deposition. The trial began one week later and, in between, the plaintiffs worked the court, asking the judges to say Hall and other defendants had spoiled evidence. The court, they argued, should use to make an “adverse inference” that, despite claims to the contrary, Republicans considered partisan and racial data while drawing their maps.

The court declined to do so, announcing the decision on the day the trial began and following up the next day with a written order. The court did agree, though, that Reel was “plainly a legislative employee” and that the concept maps were public records, telling legislative leaders either to obtain the maps or identify them “with specificity” and certify that they were lost or destroyed.

Plaintiffs argued that the defense team failed to do even that because it provided but a single sentence explanation: “Defendant Hall states that after the Court’s order of December 29, 2021, he called Dylan Reel and Mr. Reel stated that the concept maps that were created were not saved, are currently lost and no longer exist.”

“Legislative Defendants provided no further information about the missing files—not even basic facts about the devices on which these files were created or stored, or the nature of the files themselves—nothing,” lawyers for the plaintiffs wrote.

“Did Mr. Reel delete these files, or were they never saved in the first place?” they asked. “If they were deleted, why and when? If they were not saved, why not? … It is common knowledge that images on phones generally do not disappear unless they are deleted.”

Judicial authority

Despite the bombshell nature of Hall’s admission, the secret maps may not figure heavily into the court’s decision. Much of the case, as presented by the plaintiffs, hinged on computer algorithms that relied on math in an effort to prove the legislature’s maps are wild outliers, so effective at electing Republican candidates that the maps have to be purposeful gerrymanders.

The judges also have to decide how far their authority goes. The state constitution grants redistricting power to the General Assembly, and it doesn’t specifically outlaw partisan gerrymanders. The plaintiffs say these gerrymanders are so extreme that they violate the constitution’s free election clause and other promises the constitution makes to voters.

Another three-judge panel found an illegal partisan gerrymander in North Carolina in 2019, but that case didn’t make it to the state Supreme Court, so there is still precedent to be set.

There are limits, Crowell said, to how much partisan tilt lawmakers can draw into a map, “but it’s really hard to define what that limit is.”

As for the open records issue, destroying public records is a misdemeanor.

“I haven’t heard of anyone ever being punished,” Crowell said.

And even with the secret concept maps, this last redistricting process may indeed still be the most transparent in North Carolina history. Only because Republican lawmakers promised this time to draw maps in public – at legislative computers, with the process streamed online – was any seasoned observer surprised to hear about Hall’s secret maps.

“In the history of the legislature there's a lot that has gone on behind closed doors,” Crowell said. “Historically that’s been true for redistricting as well. … At least there has been more of a public commitment to an open process than there was before. However, a lot of people still wonder how much is being decided in private anyway.”

“This episode,” Crowell said, “undermines the notion that it is an open public process.”

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