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Court throws out NC congressional map again

Posted January 9, 2018 5:54 p.m. EST
Updated January 9, 2018 9:13 p.m. EST

This map shows the new congressional districts drawn during the Feb. 18 redistricting session.

— A panel of three federal judges on Tuesday ordered the state to redraw its congressional map again, forbidding North Carolina from holding this year's scheduled U.S. House elections until it does.

In doing so, the court ruled that Republican state legislators, seeking to address a racial gerrymander the court struck down in a previous map, put too much partisan intent into their redraw, drawing the lines to guarantee Republican victories in U.S. House races despite North Carolina's more purple political hue.

The court not only ordered the General Assembly to redraw districts over the next two weeks, it said it would appoint a special master to make maps on a parallel track. With filing in congressional races slated to begin Feb. 12, time is of the essence, the court said.

A spokeswoman for Sen. Ralph Hise, R-Mitchell, who heads the state Senate's redistricting committee, said the case would be appealed. Other legislative leaders did not immediately respond to requests for comment.

An appeal would kick the issue up to the U.S. Supreme Court, which heard arguments on a similar lawsuit out of Wisconsin in October but has not yet ruled on that case's central questions. Partisan gerrymanders have been accepted in the past, but these cases could create new precedents, changing the way election maps are drawn nationwide.

In Tuesday's decision, authored by 4th U.S. Circuit Court of Appeals Judge James Wynn, the court pointed to baldly partisan public statements by a key GOP lawmaker, who was intent on showing the court that the legislative majority had set aside racial data in drawing this map. At the time, legislators had been ordered to rework a pair of congressional districts the court declared unconstitutional in 2016 due to a racial gerrymander.

"Rather than seeking to advance any democratic or constitutional interest, the state legislator responsible for drawing the 2016 Plan said he drew the map to advantage Republican candidates because he "think[s] electing Republicans is better than electing Democrats," Wynn wrote. "But that is not a choice the Constitution allows legislative mapdrawers to make."

The quote came from state Rep. David Lewis, R-Harnett, who also announced during the 2016 redraw that the new map was built to elect 10 Republicans and three Democrats "because I do not believe it's possible to draw a map with 11 Republicans and two Democrats." Lewis said last year that, given another chance, he wouldn't have said that, but he was trying to make it obvious race wasn't a deciding factor in the maps.

Common Cause and the League of Women Voters brought this suit, opening a new North Carolina front in an already crowded field of lawsuits, most of which accused the Republican majority of packing minority voters into certain districts to lessen their voting strength in adjacent GOP strongholds. Common Cause Executive Director Bob Phillips called Tuesday's decision "a true victory for North Carolina voters" and re-upped his organization's support for redistricting reforms that would rely on nonpartisan legislative staff to draw maps instead of letting sitting General Assembly members do it.

That legislation has bipartisan support, but it's been sitting in committee without a hearing since February 2017.

The General Assembly goes back into session Wednesday. Legislative leaders had already said they might have to react to court redistricting decisions during this session, not just because of this case but due to a separate lawsuit targeting state House and Senate districts. That case, Covington v. North Carolina, was in federal court last week before a separate three-judge panel, though Wynn serves on that panel as well.

It alleges a racial gerrymander in a number of districts, not a partisan one.

In that case, the court also assigned an expert, called a special master, to redraw districts after rejecting changes made by the GOP majority last August. It's front-loading that process in the partisan gerrymandering case, giving the legislature another crack at the map but also telling attorneys in the case to confer and come up with the names of three potential experts for the court to hire by next Tuesday.

If they cannot agree, as the failed to in the Covington case, the court will appoint its own expert.

North Carolina Republican Party Executive Director Dallas Woodhouse said the state's congressional districts are fair and were drawn according to "all known rules and existing case law." Indeed, legislators have complained through various rounds of legal challenges of the needle they must thread to draw districts, given constitutional concerns and the U.S. Voting Rights Act, all of which combine to essentially require race be taken into account in some ways, but not be the dominant factor in drawing lines.

Woodhouse also bashed "activist Federal Judge Jim Wynn" for "waging a personal, partisan war on North Carolina Republican voters."

Wynn was joined in his opinion by U.S. District Judge W. Earl Britt, and both men were appointed to the bench by Democrats. U.S. District Judge William L. Osteen Jr., a George W. Bush appointee, concurred with their decision in part and dissented in part, differing on legal analysis but agreeing there was "ample evidence" Republicans were blatantly partisan in drawing their map.

Osteen pointed to comments from Tom Hofeller, a go-to mapmaker for Republicans in North Carolina and other states, who acknowledged efforts "to minimize the number of districts in which Democrats would have an opportunity to elect a Democratic candidate."

"In my opinion, Article I, Sections 2 and 4 (of the U.S. Constitution) set a clear limit on unconstitutional political gerrymandering," Osteen wrote. "When the legislature, through its redistricting plan, controls the outcome of the election, whether as a result of partisan consideration or another factor, the plan is unconstitutional."

It remains to be seen how the Supreme Court will deal with North Carolina's case, which differs in some important ways from the one out of Wisconsin. Michael Bitzer, a well-known political science professor at Catawba College, said Wynn's 190-page opinion tees up key issues for Justice Anthony Kennedy, considered the Supreme Court's swing vote on this issue.

"They have basically set up, on a silver platter, everything that Kennedy could possibly use," Bitzer said. "This is a pretty weighty decision. It's pretty firm in its belief."

Democratic members of Congress reacted with applause as news of the decision percolated through North Carolina's political corners Tuesday. First District Congressman G.K. Butterfield, whose district was one of two struck down in 2016 over racial concerns, said the opinion "reaffirms my long held belief that Republicans in the North Carolina General Assembly drew the congressional map with the express purpose of maximizing the number of Republican congressional districts.

"As the Court stated, North Carolina voters have been deprived of a constitutional districting plan for the past decade," Butterfield said in a statement. "So, I urge the Republican-dominated General Assembly to promptly comply with the Court’s order by developing a fair congressional map that doesn’t disadvantage Democratic voters."