Raleigh, N.C. — Map makers can use election data to achieve political goals as they redraw North Carolina's legislative districts, but they're forbidden from considering voters' race under criteria approved Thursday by the House and Senate committees overseeing the process.
These rules also say incumbents can be protected in the new maps, allowing map makers to make "reasonable efforts" to avoid drawing sitting legislators into the same district. The decision disappointed reformers who had hoped to see a less partisan process emerge as the General Assembly complies with a federal court order to replace unconstitutional maps.
"I think it's unfair that the majority obtained by unconstitutional districts is now going to be protected," House Minority Leader Darren Jackson said.
Democrats pushed back fruitlessly against the new criteria Thursday. In a process that lasted four-and-a-half hours, Republicans shot down the minority party's suggestions and passed their map-making rules on repeated votes that fell along, or very close to, party lines. A court reporter took it all down, including a question-and-answer session GOP leaders held with reporters after the meeting.
The three-judge panel that a year ago Friday found racial gerrymanders in 19 House and nine Senate districts will have to sign off on new maps before they take effect, relying in part on records created during this process. With criteria set, GOP leaders turn now to Tom Hofeller, a map-making expert who has taken up the Republican cause in states around the country.
In 2011, Hofeller drew the very maps he's now been hired to replace in North Carolina. Drafts should be ready for the public in about two weeks, Republican leaders said, ahead of a contemplated Aug. 24 vote to approve them on the floors of the House and the Senate.
Democrats and good-government groups complained Thursday that the criteria will allow Republicans to key in again on election data as they draw districts. Combined with modern computer software, this allows map makers to create districts they believe a Republican is sure to win and to bunch likely Democratic voters into fewer districts.
Republicans stopped short, though, of promising districts designed to re-enforce their veto-proof majorities in both chambers. State Sen. Erica Smith-Ingram, D-Northampton, asked House Rules Chairman David Lewis point blank: Is the goal to maintain that legislative lead?
"The leadership has no such goal," replied Lewis, R-Harnett.
Sen. Terry Van Duyn, D-Buncombe, reminded lawmakers that a stream of speakers during a public hearing last week implored that partisan politics not be considered when drawing maps.
"What people were asking for was districts that represent the voters not districts that represent a political party," Van Duyn said.
The last time Republicans had to redraw districts – in 2016, when courts found North Carolina's congressional map unconstitutional – they included a required 10-3 Republican advantage in the map-making criteria. At the time, Lewis said he didn't think an 11-2 map was possible.
On Thursday, Lewis said he probably wouldn't say it that way if he could go back, but he was trying to show the courts that race wasn't the deciding factor in new maps – partisan politics was.
Political gerrymanders are legal, although a Wisconsin case pending before the U.S. Supreme Court could change that. What the courts have forbidden is an over-emphasis on race when it comes to drawing lines.
Some attention to race is typically required, though, because North Carolina must comply with parts of the federal Voting Rights Act, which is meant to protect minority voters' ability to elect candidates of their choice. It is unclear how new maps will satisfy this point. When asked, Republican leaders repeatedly quoted from a court opinion that not only declared race was the predominant factor in drawing the old maps, but said GOP legislators failed to produce evidence showing they needed to rely on racial data to satisfy VRA requirements.
"The only way to comply ... is not to consider race in that process," Lewis said.
Democrats, and particularly black Democrats, were incredulous.
"Do you understand that, by not using race, you're defeating your own purpose?" asked Rep. Mickey Michaux, D-Durham. "The districts were declared unconstitutional because of race. If you don't use race to correct it, how are you going to show the court that they're not still unconstitutional?"
Lewis pointed again to the court's opinion. Smith-Ingram and others asked again: What metrics will show minority voters are treated fairly? Lewis asked to "refocus this conversation on the criteria."
"We live in the South," Sen. Paul Lowe, D-Forsyth, said at one point. "When in the South has race not been a factor? Because what I'm hearing doesn't really add up."
Hofeller will be paid $50,000 for his work on the new maps, and the GOP majority has told Democrats they can also have $50,000 in taxpayer money to hire their own expert. Democrats will not have direct access to Hofeller or his work during the map-making process, but North Carolina law makes that sort of documentation public information after maps become law.
Democrats are expected to make some gains when the 2018 elections are held using the new maps, but how much the pendulum swings remains to be seen.
"The entire process of where lines are drawn – every result from where a line's drawn – will be an inherently political thing," Lewis said under questioning Thursday from Democrats. "I'm saying that redistricting itself is an inherently political process."
In addition to incumbency protection, the use of election data and the prohibition against using racial data, the House and Senate committees working on the new maps approved six other criteria Thursday:
- Equal population: Each district must have roughly the same number of people in it, based on the 2010 census.
- Contiguity: All parts of a district must be connected, but it's OK for districts to cross water.
- County groupings: This criteria references various court cases that limit the number of times a district may cross county lines.
- Compactness: Map makers "shall make reasonable efforts" to draw districts more compact than the current ones, as measured by a pair of compactness scoring methods.
- Split precincts: Map makers must also "make reasonable efforts" to split fewer precincts in the maps than the current ones.
- Municipal boundaries: City and town boundaries can be considered as the committee draws new districts.
The federal judges have set a Sept. 1 deadline to have the maps in place.