NC Supreme Court’s inaction on state redistricting plan raises questions
Artilce originally appeared in the Raleigh News & Observer on August 15, 2014
RALEIGH — Three years have passed since Republican lawmakers redrew North Carolina’s political landscape with redistricting maps that Democrats and voting rights advocates have challenged as discriminatory to African-Americans.
Republicans contend the lines were in keeping with the federal Voting Rights Act, and a panel of three North Carolina Superior Court judges has agreed.
Whether those maps should stand or be redrawn is before the N.C. Supreme Court. The justices heard arguments in the case eight months ago. That no ruling has been issued has added to the political tension in a state sharply divided by party lines.
“Not deciding, in essence, is a decision,” said Kareem U. Crayton, an associate UNC-Chapel Hill law professor who wrote a brief for the N.C. Legislative Black Caucus for the state justices to weigh. “The problem is this isn’t going to be something that goes away.”
Adding to the uncertainty about the impact of further delay is the pending retirement of Chief Justice Sarah Parker this month and the November elections in which four of the court’s seven seats are up for grabs.
There also is speculation about what might happen if the U.S. Supreme Court rules on an Alabama redistricting case scheduled for hearing in November before the state Supreme Court issues an opinion. The cases have many similarities, but challengers of the North Carolina maps contend the examples of alleged gerrymandering from this state are stronger than those in Alabama.
It’s unclear why the N.C. Supreme Court has not issued a ruling.
At issue is whether maps from a 2011 redistricting directed by the Republican-led General Assembly will be used through 2020.
Democratic voters and others challenging the 2011 boundaries argue that 30 legislative and congressional districts were designed to weaken the overall influence of black voters in North Carolina.
Republicans have argued that they followed the law when creating districts. The U.S. Justice Department, whose leadership was appointed by Democratic President Barack Obama, found that the maps did not hurt the ability of minorities to elect their candidates of choice in the districts being challenged and “pre-cleared” them under a procedure laid out by the Voting Rights Act.
The map challengers contend that the shepherds of the redistricting packed black voters into districts where they had already been successful in electing their candidates of choice despite being in the minority.
The courts have allowed political parties to draw districts for political advantage but prohibit racial gerrymandering.
A ruling and an appeal
In July 2013, three Superior Court judges ruled unanimously in favor of the mapmakers, concluding that though race was considered in the design of districts, it was done to comply with the Voting Rights Act.
The challengers appealed that decision to the N.C. Supreme Court. They argued that the Superior Court judges misunderstood the Voting Rights Act instructions for what are called “majority-minority districts,” or districts in which enough people of color must be in the voting population to elect their candidate of choice.
If minority voters already are electing their candidates of choice, and often those candidates are Democrats, attorneys for the challengers argue that districts do not have to be redrawn. They argue that remapping cannot dilute the black vote, and they contend that is what the 2011 districts do by packing more African-American voters into too few North Carolina legislative and U.S. congressional districts.
Attorneys for the map challengers and map drawers have cited previous challenges as they look for decisions on the 2011 districts.
Every decade, new census numbers are released. Political parties in power across the country take that opportunity to draw new maps that account for race, voting history, political affiliation of registered voters and the addresses of incumbent politicians when drawing new boundaries.
In recent years, allegations of gerrymandering have not only raised questions about disenfranchisement but also prompted calls for reform.
A core technique of gerrymandering, political analysts say, is to pack voters likely to favor the party out of power into a few throwaway districts where lopsided victories are likely to occur.
Redistricting experts and professionals then try to map other boundaries where the party out of power will be “cracked” into many districts, allowing for closer wins for candidates of choice for the political group drawing the lines.
In North Carolina, this has resulted in challenges of Democratic-led map drawing, too.
A challenge of a 1990 North Carolina redistricting case that went to the U.S. Supreme Court found that if a district is “so bizarre on its face” that it is “unexplainable on grounds other than race” it must stand up to a strict standard of scrutiny.
In the 2000 redistricting cycle, state legislative maps were successfully challenged in state court, on the grounds that they did not sufficiently maintain county boundaries.
The maps redrawn in 2002 were also challenged and struck down in state court on grounds that districts should be compact and keep county boundaries intact when possible.
Quicker rulings in the past
Challengers of the current plan point to the challenges of the past decade when questioning why the N.C. Supreme Court has not ruled on the 2011 plan.
Those cases were ruled on within weeks of the oral arguments.
Clerks for the N.C. Supreme Court say there is no set time for when a ruling is issued after oral arguments. Many cases are decided three to six months after the hearing, but some death cases and others that are complex have been known to take longer than a year.
Anita Earls, executive director of the Southern Coalition for Social Justice, counsel for challengers of the 2011 maps, worries that further delay could make it difficult to change districts for the 2014 elections, and quite possibly for the 2016 elections if such action is warranted.
She also thinks the North Carolina case, which is expected to be appealed to the U.S. Supreme Court however the state justices rule, would be a natural fit with the Alabama redistricting challenge.
“I think there are significant and important constitutional issues at stake,” Earls said.
Parker, the chief justice, will leave the bench this month because she will be 72, the mandatory retirement age, on Aug. 23.
Mark Martin, whose term ends this year, is seeking the chief justice seat on the November ballot, leaving his seat open for voters to choose between two candidates.
In all, voters will choose four seats, and if the redistricting case has not been decided by the Nov. 4 election, a new justice could ask for new arguments in the case.
Crayton, the UNC-CH law professor who has studied redistricting, said he expects that politics could be playing into the slower ruling.
“It’s impossible to divorce politics from the mix when you have elected judges and an election approaching,” Crayton said.
Blythe: 919-836-4948; Twitter: @AnneBlythe1