New turn on old complaint: Partisan gerrymanders targeted in NC suit
Posted October 16, 2017 4:00 a.m. EDT
Updated October 16, 2017 12:31 p.m. EDT
Greensboro, N.C. — A North Carolina lawsuit keyed to one of the biggest foundational debates in American politics right now comes to trial this week.
How much partisanship, a three-judge panel sitting in Greensboro will be asked to decide, is too much partisanship when it comes to drawing election maps?
The state's congressional map, redrawn in 2016 with bald-faced partisan goals, will be on trial. Advocates for change argue that the Republican majority's expressed push to draw maps benefiting their candidates violated the constitutional rights of voters and threw the state's congressional delegation way out of whack.
That delegation leans 10-3 Republican in a state where recent statewide elections have been closely divided affairs. This 10-3 split was by design, with one of the GOP's chief mapmakers in the legislature publicly proclaiming that, "I do not believe it’s possible to draw a map with 11 Republicans and two Democrats."
This map, "subverts basic democratic values by intentionally, severely, durably, and unjustifiably disadvantaging Democratic voters and candidates," attorneys for the League of Women Voters of North Carolina argue in an opening statement filed Friday with the court.
"It is hard to imagine a more blatantly unconstitutional map," the brief states.
The courts haven't deemed partisan gerrymanders unconstitutional, though. In fact, North Carolina Republicans highlighted the partisan nature of this map last year because they were following a court order to replace an earlier one. Federal judges struck down the previous map because they decided map makers relied too heavily on racial data to draw it.
Partisan gerrymanders have been challenged in court before, but the country may be at a turning point on the issue. A similar case out of Wisconsin is before the U.S. Supreme Court. North Carolina legislators hoped to delay their case until that one is decided, but the three-judge panel set to hear arguments this week in Greensboro decided to move forward.
To save time, the panel told both sides to file written opening statements Friday and forgo them when the trial begins Monday.
Attorneys for the legislative majority argue that drawing election maps is a core function of state legislatures and that Democrats, unhappy with a successful nationwide Republican push to win legislative majorities ahead of the 2011 redistricting round, hope to transfer "the inherently political process of redistricting from state legislatures to federal courts."
That effort, attorneys argue in their opening statement, looks for impossible answers in a case that hinges not just on whether partisan gerrymanders should be allowed, but on where the line should be drawn and how it can be measured.
"Plaintiffs’ theories do not – and cannot – answer the elusive question asked by the Supreme Court – how much politics is too much politics in redistricting?" Friday's filing from the defense states. "Plaintiffs foist this job on the courts with no workable compass with which to navigate; instead, plaintiffs would arm the courts with so-called 'science' that conveniently achieves plaintiffs’ partisan political goals through what amounts to proportional representation."
The other side offers several measures, including an "efficiency gap" formula that looks at the number of votes "wasted" in a given district when voters from one party are drawn so heavily into one district that their vote is dilluted in a neighboring one. In their brief, Republican attorneys called the notion that votes can be wasted "uniquely undemocratic."
Arguments against voter packing have been used successfully, though, to replace maps where black voters were drawn into districts in higher percentages than needed to satisfy federal laws requiring that minority voters be able to elect the candidates of their choice in at least some districts. The effort here is to move from an argument tied to minority groups protected by federal law into a broader offensive against gerrymandering.
The plaintiffs in this case also promise to show a lack of nonpartisan justifications for the way North Carolina's congressional map looks, pointing to mathematical experiments. The League of Women voters says one professor it consulted randomly generated 3,000 maps for the state, all of which matched or surpassed the GOP map's performances in traditional redistricting metrics, including district compactness and the number of counties and precincts split by district lines.
"Yet not one of Professor Chen’s maps yielded a 10-3 Republican advantage or an efficiency gap as large as the 2016 plan’s," the League of Women Voters' said in its opening statement. "No matter which parameters he used, every single map was more symmetric than the plan. Indeed, the typical map had seven Democratic seats and an efficiency gap of almost exactly zero."
Common Cause, which has joined the League as a plaintiff in this case, said it plans to put a Duke University mathematician on the stand to discuss another computer simulation that created thousands of maps.
"Fewer than one percent of those maps resulted in a 10-3 Republican split, illustrating how extreme an outlier the 2016 plan is," Common Cause's opening brief states.
Attorneys for the GOP legislators in the case argue that the 2016 map isn't a gerrymander "in any sense of the word." They say the map followed traditional redistricting principles "more closely than any other congressional plan in North Carolina’s history" and that, once the 2011 map was thrown out over a racial gerrymander, it made sense to redraw a map that would still protect the political status quo.
"The First Amendment guarantees that citizens have an equal opportunity to engage in political debate and support their candidates of choice," they argue. "It does not and cannot be interpreted to mean that they are entitled to electoral success in the congressional district where they reside or that they are entitled to 'competitive' districts.
"Redistricting is the most inherently political process under our form of government," they argue. "The remedy for concerns over political mapdrawing rests with the people, not with the courts."
Arguments in the case are expected to run at least into Thursday. The judges in the case are U.S. District Judge W. Earl Britt, U.S. District Court Judge William L. Osteen Jr. and 4th U.S. Circuit Court of Appeals Judge James Wynn. Britt and Wynn were appointed by Democrats, Osteen by a Republican.
The case pits legal teams familiar with each other from past, and ongoing, lawsuits. Attorney Phil Strach, the husband of North Carolina's elections director, represents GOP legislators in the case, just as he does in a separate racial gerrymander case heard in federal court last week. Anita Earls of the Southern Coalition for Social Justice and Edwin Speas represent the plaintiffs in both cases.