Redistricting NC: A Play in Four+ Acts
Updated July 7, 2009
Once upon a time, North Carolina had election districts that were drawn without legal problems and voters all knew they were voting in fully constitutional elections. But that was a long time ago.
How Legislators Choose Their Voters
The process known as redistricting officially occurs every ten years. During a redistricting session, sitting legislators convene to draw the legislative districts that will govern legislative elections until the next census.
The problem is that when legislators draw the districts that govern their own elections, the process is inevitably fraught with self-interest, incumbent protection, and gerrymandering. Some have called it a process which “allows lawmakers to choose their voters, rather than the other way around.”
The phenomenon is in stark contrast to the principle stated by the U.S. Supreme court: “The right to vote freely for the candidate of one’s choice is of the essence of a democratic society . . . .”
When this happens, legislators are tempted to draw districts not with clean and sensible district lines, but with little scribbles and crooks that keep the supportive voters in their districts and the unsupportive ones out. This process is called gerrymandering. And even though gerrymandering has been going on for a long, long time, it is not necessarily unconstitutional in itself unless the districts are gerrymandered in the extreme.
The problem we have in North Carolina, however, is not simply gerrymandering. It is unlawful or unconstitutional gerrymandering.
North Carolina’s Constitutional Limits
In North Carolina we have a very special gerrymander-busting requirement that hems in would-be map drawers: the North Carolina Constitution requires that legislative districts must keep county lines intact. Article II, sections 3 and 5 quite plainly state that “no county shall be divided in the formation of a [senate or house] district.” It doesn’t take a constitutional scholar to understand the meaning. Counties lines cannot be crossed; counties must be the basic building blocks of legislative districts.
But if you look at our legislative district maps today, you would never guess these provisions of the Constitution even existed. The most influential factor in our legislative district maps looks more like political party registration than county lines. Lots of county lines are crossed.
The reasons county lines are crossed, however, are not simple. There are basically two constitutionally legitimate purposes for which legislators may cross county lines in drawing
districts. The first is to make sure there are roughly equal numbers of voters in each district. The second is to make sure district lines don’t discriminate against minority voters.
Rule 1: Maintain Equal Voting Power
The first federal rule, called the “one-person one-vote” rule, is rooted in the Equal Protection clause of the Fourteenth Amendment to the United States Constitution. Under that rule, each person is entitled to a roughly equal opportunity to elect the same number of representatives. The N.C. Constitution requires the same thing.
Rule 2: No Racial Discrimination
The other reason legislative districts can cross county lines is to avoid discrimination toward minority voters.
To explain this problem, it is helpful to remember that gerrymandering tactics in favor of a particular political party could also be used to the advantage or disadvantage of a particular race. For that reason, additional protection is given to racial minorities in the redistricting process.
The Equal Protection Clause of the U.S. and N.C. Constitutions offers the primary protection. When any voting law, including a redistricting law, is slanted against racial minorities, then the constitutions actually voids the law unless the state has narrowly tailored that law to advance compelling state interest. Which is almost never the case.
A second area of federal law, called the Voting Rights Act (VRA), also provides protection from racial discrimination.
Section 2 of the VRA, which applies to the entire country, mandates that if minority voters can be grouped relatively easily into a cohesive, geographically compact majority voting bloc, then such a district must be drawn. When the legislature is drawing these “majority-minority districts,” the whole county provisions of the N.C. Constitution do not apply.
Section 5 of the VRA applies only to certain legislative districts specified in the VRA. In North Carolina, section 5 currently applies to 40 counties mostly in the eastern part of the state. Section 5 requires that new legislative districts cannot diminish the voting power that minorities had under previous legislative districts.
The Fox and The Hound
These laws can provide narrow exceptions to the N.C. Constitution. But as we all know, exceptions are sometimes used as loopholes. And loopholes create opportunity for mapping miscreants.
North Carolina has the unfortunate dishonor of creating and enduring more redistricting cases since the 1990 census than can be counted on two hands. Our legislature is, shall we say, “creative” in this area.
The following reality show, which could be entitled “Redistricting Fox and Hound,” hits only the highlights.
In this show, the role of Hound is played by the courts and the Constitution; the role of Fox is played by the legislative map drawers. The voters only have brief cameo appearances, with roles that are unfortunately not worthy of a credit line.
Act I: Congressional Gerrymandering
Our little show opens just after 1990, when the state completed its redistricting process. In 1991, the United States Department of Justice objected to the congressional districts drawn by the legislature because the legislature had gerrymandered the districts for “pretextual reasons.”
The U.S. Supreme Court later described some of those districts as follows: “hook shaped,” like a “Rorschach ink-blot test,” and resembling a “bug splattered on a windshield.” The infamous, narrow, snake-like I-85 district was so oddly shaped that the Supreme Court quoted a legislator who once remarked, “[i]f you drove down the interstate with both car doors open, you’d kill most of the people in the district.”
In 1992, the U.S. Supreme Court held that the legislature had unconstitutionally used race as a factor to gerrymander the congressional districts. Memorably, the Court said “[i]t is unsettling how closely the North Carolina plan resembles the most egregious racial gerrymanders of the past.”
After being compelled to re-draw the districts, the legislature somehow managed not to get the point. It failed for a second time to follow the constitutional requirements. In 1996, the U.S. Supreme Court again corrected the legislature due to its unlawful use of racial gerrymandering. The legislature’s lengthy appeal of that litigation led to delays that allowed the unconstitutional districts to be used in the elections of 1992, 1994, and 1996.
In follow-up litigation in 1999 and 2001, the U.S. Supreme Court held that certain evidence cited by the trial court in overturning the freshly re-drawn districts should not have been used by the trial court to determine that the districts were unconstitutional. More evidence and trials would be needed.
So ended the 1990 redistricting cycle.
Act II: Legislative Gerrymandering
The next round of redistricting occurred in 2001, the same year another lawsuit was filed in state court regarding state legislative districts.
In 2002, the N.C. Supreme Court issued its landmark ruling in Stephenson v. Bartlett, holding that the N.C. Constitution prohibited map drawers from crossing county lines unless specifically required to do so by federal law.
Because the legislature drew county-crossing legislative districts without justification under federal law, the N.C. Supreme Court held that the districts were unconstitutional. The court laid out nine specific criteria to aid the legislature in redrawing the districts in compliance with the constitution.
In response to these directives, the legislature paused briefly as if to comply with the ruling . . . and again drafted an unconstitutional legislative redistricting plan. The new plan was struck down, again, by the trial court as unconstitutional and the N.C. Supreme Court later agreed.
Perhaps in observation of past behavior by the legislature, the trial court apparently decided it had finally had enough. The court did what was to the legislature unthinkable: it drew legislative district maps that complied with the constitution.
And redistricting pandelirium followed. People in the legislature were, as one commentator put it, “enraged.” They went after the home judicial district of the trial judge and there was talk of impeaching Supreme Court Justices, cutting court funding, and cutting court staff. In fact, the Raleigh News & Observer reported that “The God of Abraham did not yield such a terrible swift sword.” The legislature was furious that the court did not permit it to re-re-re-draw new district lines.
After the 2002 elections were held under the court-drawn maps, the legislature re-drew yet another redistricting plan in 2003. The legislature was sued again. But a procedural decision by the N.C. Supreme Court required the challengers to re-file a new suit in a different court.
The challengers finally ran out of steam and a new suit was never re-filed. No court decision ever constitutionally validated the 2003 redistricting plan as a whole.
Act III: “Majority” Gerrymandering
In 2004, however, new litigation emerged when a new constitutional suit was filed by several commissioners of Pender County challenging the constitutionality of House District 18.
Back in 2003 the legislature had drawn a plan that arguably crossed county lines without a federal requirement. One such district was District 18, which split Pender County. The legislature argued this was necessary because section 2 of the VRA required it. The trouble was that section 2 actually didn’t require it.
Section 2 requires drawing a majority-minority district where racial minorities are a “majority” of the voting population. The legislature, however, wanted “majority” to mean 39%. The challengers boldly argued that “majority” meant something more like “majority,” i.e. 50% plus one voter.
The N.C. Supreme Court ruled in 2007 that the challengers were correct: “majority” really did mean “majority.” The N.C. Supreme Court ordered that “after the conclusion of the 2008 election, House District 18 and other impacted districts must be redrawn. All redistricting performed thereafter shall comply with this opinion.”
The legislature appealed to the U.S. Supreme Court and more delay followed. But in March of 2009, the U.S. Supreme Court agreed with the N.C. Supreme Court.
Act IV: Back To The Future
So here we are. It is 2009 and the legislature recently re-drew the districts to comply with the rulings of two supreme courts. Or did it?
Rather than re-draw “House District 18 and other impacted districts,” as required by the court’s decision, the legislature re-drew only District 18. It also determined that a section 2 majority-minority district could not be drawn.
Will another lawsuit emerge before 2010? We should know soon – the election season of 2010, in which both parties will be vying for legislative seats and control of the map-drawing pen will be begin shortly.
What appears inevitable, however, is that after the next “normal” redistricting process, more lawsuits will follow. And if past behavior is a good indication of future behavior, we will have more foot-dragging, hand-wringing, and voter-choosing in our futures.
Here’s to hoping we’ve seen the last episode of Redistricting Fox and Hound.
But I wouldn’t bet on it.
