Voting Rights

RALEIGH, N.C. -- The Legislature will have to change its district boundaries a fourth time this decade based on a U.S. Supreme Court decision Monday involving racial gerrymandering and a state requirement barring districts from crossing over county boundaries. The nation's highest court upheld a 2007 state Supreme Court decision that found boundaries for a House district in Pender and New Hanover counties were illegal. The decision means the General Assembly must change the House boundary map before the 2010 election cycle, handing another task to lawmakers already busy trying to narrow a projected budget gap of more than $3 billion for the fiscal year starting July 1. House Speaker Joe Hackney, D-Orange, said he expects only significant changes will have to be made to three districts in the House to comply with Monday's 5-4 ruling. "I don't think there's any spillover effects," Hackney said. "I think the impact of it is very limited." Rep. Paul Stam, the House minority leader, said there were other districts that Democrats should change before next year to comply with the ruling, although he couldn't immediately identify them. But "the people who drew the districts want to change them as little as possible," said Stam, R-Wake. Redistricting experts say they expect the ruling likely will have a greater impact when the once-a-decade redrawing of boundaries for the House and Senate seats occurs in 2011, once data from the 2010 census is in. The Legislature had to redraw district boundaries in 2001 and 2002, but a judge threw out the maps and ultimately create temporary boundaries for the 2002 elections. Another set of maps was approved by lawmakers in 2003 and has been used since the 2004 elections. The justices' split decision favored Pender County elected officials who originally sued in 2004 and determined a state isn't required by the federal Voting Rights Act to draw electoral districts where black residents comprise less than half the voting-age population. The court said such racial gerrymandering is required only if a district has a numerical majority of minority voters. In the 18th House District, currently represented by Rep. Sandra Spaulding Hughes, D-New Hanover, the black voting-age population is 39 percent. The Legislature decided to split the district between Pender and New Hanover counties in 2003. Lawyers for the current and former Pender County commissioners argued the split violated a provision of the North Carolina constitution discouraging district boundaries from crossing county lines and that all county residents should be placed in a single district. "It's taken awhile but we've got to where we wanted to be," Trey Thurman, the attorney for the Pender officials, said after Monday's decision. The state Supreme Court agreed with county leaders in August 2007, saying the district was illegal because the constitution's "whole county provision" could only be superseded if the district be comprised of a majority-black population. It ordered the Legislature to make changes before the 2010 election cycle. State officials asked the U.S. Supreme Court to take up the case, and the justices heard arguments last fall. State Attorney General Roy Cooper's office declined comment on the ruling. Anita Earls, who filed a friend-of-the-court on behalf of the National Association for the Advancement of Colored People, three Pender County residents and the American Civil Liberties Union, was disappointed with the ruling. "It's definitely a setback for the Voting Rights Act," Earls said. She agreed with Justice David Souter, who wrote in the dissenting opinion that the decision will require elected officials to shift black voters to majority-black districts, reducing the number of districts where they have a chance to influence the outcome of elections. About 25 states have some restrictions or guidelines in their laws relatively similar to North Carolina involving how districts can be drawn. The decision could affect how districts with sizable minority groups are fashioned, said Tim Storey, a redistricting expert at the National Conference of State Legislatures. Meanwhile, another pending federal lawsuit could force boundaries to be changed further. It's been filed by GOP voters alleging current North Carolina maps are unlawful because legislative leaders should have used updated census data. "They're going to have to use the best available census data, and that will require redistricting around the entire state," said Kieran Shanahan, a lawyer for the voters.

The Southern Coalition for Social Justice represents three African-American voters who would lose their voice in the North Carolina General Assembly if the Supreme Court rules against the State of North Carolina in Bartlett v. Strickland. This case involves the interaction between the federal Voting Rights Act and the state constitution’s whole county provision. On June 16, 2008, SCSJ filed an amicus brief on their behalf, in the U.S. Supreme Court, which highlights the history of Pender and New Hanover Counties, including intentional discrimination against black voters. Joining us on the brief were the National NAACP and the ACLU. Pender and New Hanover Counties were originally a single county, divided into two counties as part of an explicit and intentional plan to dilute the voting strength of newly enfranchised black voters in 1875. Since the state originally created two counties to divide an effective black voting population, and now wants to allow that population to remain united in a coalitional district for legislative elections, the district should be protected by the Voting Rights Act. The whole county provisions of the North Carolina Constitution should not be permitted to bar the state’s use of coalitional districts to provide its long-excluded minority voters with an equal opportunity to elect legislators of their choice. The whole county provisions themselves are an aspect of the State’s long history of racial discrimination impairing minority citizens’ right to vote and elect their preferred candidates to office. Without a substantial number of coalitional districts, North Carolina would soon revert to having a virtually all-white legislature. The Supreme Court has expressly declined to rule on this issue in the past, most recently in Lulac v. Perry, the Texas Congressional redistricting case. Numerous circuit courts have addressed the issue and are split. The First Circuit has ruled that a Section 2 claim may be brought in circumstances where the black voting age population is less than 50% but still elects a candidate of choice, while the 4th, and 5th circuits have expressly ruled that Section 2 contains a bright line 50% requirement even though it is nowhere in the language of the Voting Rights Act itself. The 2nd, 9th, 10th and 11th circuits have waffled or ruled only in dicta. The New Jersey State Supreme Court has held that a less than 50% VAP district satisfies Section 2 of the Voting Rights Act.

In August 2007, the North Carolina Supreme Court ruled that a state legislative district, House District 18, which had elected a candidate of choice of black voters for many years, but was only 39.36% black in voting age population, must be redrawn because it violates the State Constitution's whole county requirement. Pender County v. Bartlett, 649 S.E.2d 364 (NC 2007). The State argued, and the lower court had held, that the District was required in order to comply with Section 2 of the Voting Rights Act, but the NC Supreme Court ruled that Section 2 requires that a district be 50% black in order to be protected. It is not possible to draw a geographically compact district in that region of the state that is 50% black in voting age population. Twenty Congressional districts, and many more state legislative districts, that elect candidates of choice of black voters are less than 50% black in voting age population. Many of these districts are in the South where all of the other factors necessary to demonstrate a violation of the Voting Rights Act totality of the circumstances test are present. The current rule will mean that following the 2010 census, legislatures can dismantle these less than 50% VAP districts that have elected candidates of choice of black voters without fear of being sued under Section 2 of the Voting Rights Act. The only issue in this case is whether Section 2 of the Voting Rights Act has a 50% VAP threshold requirement. There are no issues of political gerrymandering or other claims to cloud the arguments or give the Court alternative grounds to dispose of the case. Review is being sought by the State of North Carolina, not by individual plaintiffs, and not by partisan political parties, which will put the claims in a different posture for the Court. This is a state wanting to comply with the Voting Rights Act by recognizing minority voting strength where possible. The record below is full of evidence of all the other factors relevant to a Section 2 violation, indeed, the plaintiffs conceded that all other Section 2 factors had been met, including the presence of racially polarized voting and the history of discrimination against black voters. This is the last chance for the Court to consider this issue before the 2010 round of redistricting. Three Justices (Souter, Ginsburg, and Stevens) have recently, and powerfully, rejected the "50% Rule" that the North Carolina Supreme Court adopted in Pender County. The U.S. Supreme Court has passed on the issue five times, assuming (without deciding) that the 50% Rule misinterprets Section 2 of the Voting Rights Act (in Gingles, Growe, Voinovich, De Grandy, and LULAC). This case does not present the same factual problems as the Fort Worth district in LULAC, which was represented by an Anglo congressman who had never faced an African-American Democratic challenger, because here the incumbent is an African-American representative preferred by African-American voters and has fended off both Republican challengers in the general elections and a white Democratic challenger in the primary. In LULAC, Justice Kennedy was notably careful not to endorse the 50% Rule; and that was a case where he also sided with Latino Section 2 plaintiffs while criticizing the State of Texas for playing games by creating a literally majority-Latino but clearly ineffective "Latino" district. Resources Bartlett v. Strickland Amicus Brief signed onto by SCSJ Updates On March 17, 2008 the Supreme Court decided to hear this issue: "Whether a racial minority group that constitutes less than 50% of a proposed district's population can state a vote dilution claim under Sectionn 2 of the Voting Rights Act, 42 U.S.C. § 1973" The issue arises in the case of Bartlett v. Strickland, decided by the North Carolina Supreme Court in August, 2007.

Kirk Rivers Case

Councilman Rivers is one of two remaining African American City Council members in Elizabeth City, NC, a community with an over 50% African American population. The challenges to his residency and council seat have been brought by Mr. Gilbert, the husband of the candidate he beat in the election. Mr. Gilbert also unsuccessfully challenged the right to vote of several African-American Elizabeth City State University students in the fall 2007 election. Rivers has lived in the 4th Ward his entire life, and has served as their representative for the past 8 years. Last year he and his fiancee purchased a home in the 4th Ward, but after their marriage were unable to move to their new home on Hampton Drive, because of unresolved inspection issues. Until the needed repairs were completed, he stayed at his wife's parents home outside the 4th Ward - but never redirected his mail to this address or intended it to be his permanent residence. He was originally challenged on his eligibility to vote in the municipal elections. The consequence of him losing the residency challenge was that he would also lose his seat as a city councilman. On March 26, 2008 the Board of Elections ruled against Mr. Rivers. As a result, the City Council declared his seat vacant and scheduled a special election to elect a replacement. SCSJ agreed to represent Mr. Rivers, and urged the Superior Court to grant a stay of the Board of Elections order. Mr. Rivers is currently still serving as city councilman. Rivers and his family began moving into his home on Hampton Drive in the 4th ward in early April. Kirk and Nina participated in early voting on May 2nd, and changed their address on their voter registration at that time. A second challenge was then filed by Mr. Gilbert, alleging that their voter registration change of address during the May primary was improper. The challengers wanted to see Mr. and Mrs. Rivers prosecuted for perjury. Because the challenge was not filed on the day the vote was cast or 25 days prior to the election, the board of elections could only determine his residency as it related to the next election and not the primary which had already passed. At a hearing before the Board, SCSJ pro bono volunteer attorney Chris Brook represented Mr. and Mrs. Rivers and successfully demonstrated that they were property registered to vote at their new address in the 4th Ward. The board of elections unanimously dismissed the challenge but referred the matter to the district attorney. Updates Breaking News 9/26/08 - Pasquotank County Board of Elections Votes 2-1 to Dismiss Challenge Against Kirk Rivers, challenger Gilbert Vows to Appeal Breaking News 9/20/08 - NC NAACP calls on Pasquotank Board of Elections to Stop Witch Hunt Against Rivers and Family News Coverage Rivers Complaint Dismissed, Gilbert Plans to Appeal Ruling ... The Daily Advance, 9/26/08 http://www.dailyadvance.com/news/rivers-complaint-dismissed-151752.html#comments 24 Called to Testify in Sept 25 Hearing on Rivers Case... The Daily Advance, 9/16/08 http://www.dailyadvance.com/news/24-called-to-testify-in-rivers-case-135172.html Fourth Ward City Councilman Kirk Rivers won another legal battle Wednesday in his ongoing efforts to fend off claims that he moved out of his ward.... The Daily Advance 7/9/08 http://www.dailyadvance.com/search/content/news/stories/2008/07/09/0710RiversRulingRM.htm A judge ruled Wednesday that there was a substantial deficiency in an order declaring that Councilman Kirk Rivers had moved outside the city... The Virginia-Pilot 7/9/08 http://hamptonroads.com/2008/07/challenge-elizabeth-city-councilman-returns-local-board Rivers elections challenges dismissed The Daily Advance, June 06, 2008 The Pasquotank County Board of Elections on Thursday dismissed two residency challenges against 4th Ward Councilman Kirk Rivers and his wife Nina.... https://southerncoalition.org/page/124789/www.dailyadvance.com

On July 23, 2008 we filed a brief on behalf of the State NAACP, together with the NAACP Legal Defense and Education Fund, in the Dean v. Leake case, urging the court to dismiss the petitioner's appeal of the District Court's denial of a preliminary injunction motion. In January, voters from the Republican Party of North Carolina asked a federal court to delay the elections for members of the North Carolina General Assembly because when the legislature redrew legislative district lines in 2003 they did not make corrections to the official census data based on mistakes that had been discovered, including a dorm in Chapel Hill that was counted twice in the official numbers. The Federal Court denied that request and the plaintiffs in the case have asked the Supreme Court to review the decision. Other claims in the case would force the legislature to abandon over half the districts that elect candidates of choice of black voters. Dean v. Leake, No. 2-07-CV-51-FL, U.S. District Court, Eastern District of North Carolina Summary: A lawsuit was filed in federal court on November 21, 2007 that seeks a preliminary injunction requiring the legislature to redraw all of North Carolina's state house and senate districts before the 2008 elections. The case initially raises one-person, one-vote claims on behalf of 13 individual plaintiffs. However, the plaintiffs also claim that any district that is less than 50% black in voting age population but nonetheless elects a black candidate is a racial gerrymander and must be eliminated. In addition, several majority-minority districts are targeted for redrawing because they allegedly cross county lines without justification. House District 24, which is 54% black in voting age population, represented by Jean Farmer-Butterfield, is challenged at paragraph 89b of the complaint. The allegation is that the legislature should draw a district that is composed primarily of Edgecombe County residents, although some would have to be in a district with Wilson County. SCSJ represents the North Carolina Conference of Branches of the NAACP. On January 4, 2008, the Court granted the NAACP's motion to intervene in the case as a Defendant, seeking to defend the current redistricting plan and to oppose any effort to redraw district lines before the 2008 elections.