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State court upholds GOP-drawn congressional, legislative maps

 Sen. Ralph Hise (R-Madison, McDowell, Mitchell, Polk, Rutherford, Yancey), left, pointing  at the screen, works on a congressional district map with two GOP staffers. Oct. 14, 2021, at the North Carolina General Assembly.
Sen. Ralph Hise (R-Madison, McDowell, Mitchell, Polk, Rutherford, Yancey), left, pointing at the screen, works on a congressional district map with two GOP staffers. Oct. 14, 2021, at the North Carolina General Assembly.

Congressional and state legislative district maps drawn by the North Carolina General Assembly's Republican majority will stand — for now. In a ruling Tuesday, a three-judge panel in state trial court denied efforts by voting rights advocates to overturn the GOP-led redistricting plans.

In a lawsuit, the advocates claimed Republican lawmakers unconstitutionally gerrymandered district boundaries with extreme partisan bias. The court unanimously ruled plaintiffs failed to show the Republican redistricting plans violated free speech, free elections and equal protection provisions in the state constitution. Attorneys for the plaintiffs in the cases vowed to appeal to the North Carolina Supreme Court.

The unanimous trial court ruling followed four days of testimony and closing arguments last week in combined lawsuits filed by a consortium of plaintiffs, including the North Carolina League of Conservation Voters as well asindividual voters backed by The Elias Law Group, a national Democrat-aligned firm. The plaintiffs presented expert testimony that Republican map-makers manipulated political boundaries to such an extreme that their maps became statistical outliers that defy any geographical or otherwise logical explanation for the skewed GOP advantage.

Analyses and past election results indicate the enacted congressional map would deliver the GOP an entrenched 10-4 advantage in the state's congressional delegation, even though Democratic candidates for Congress in North Carolina earned more votes overall than Republicans in 2020. And the state Senate and House maps suggest the GOP stands a good chance of regaining a veto-proof super-majority in the General Assembly.

The judicial panel did not dispute those possible outcomes or the partisan slant to the maps. However, the judges did rule it is up to voters and their elected representatives to change the process if they do not like it.

"This Court neither condones the enacted maps nor their anticipated potential results," the judges wrote in their nearly 260-page ruling. "Despite our disdain for having to deal with issues that potentially lead to results incompatible with democratic principles and subject our State to ridicule, this Court must remind itself that these maps are the result of a democratic process."

For last week's trial, University of Michigan political science professor Jowei Chen compared the GOP Congressional map to a thousand randomly generated computer simulations. Testifying for the plaintiffs, Chen said that "97% of the simulated plans contain fewer than 10 Republican-favoring configurations."

State House district map being worked on by Rep. Destin Hall (R-Caldwell), in a redistricting committee room, on Oct. 14, 2021.
Rusty Jacobs
State House district map being worked on by Rep. Destin Hall (R-Caldwell), in a redistricting committee room, on Oct. 14, 2021.

Professor Wesley Pegden, a mathematician and quantitative data analyst from Carnegie Mellon University, also testified for the plaintiffs. He tested the GOP-drawn state Senate and House district maps against simulations generated by an algorithm he created. The algorithm relied on the same redistricting criteria adopted by state lawmakers — keeping districts compact, meeting population size requirements, minimizing the splitting of municipalities, for example — and turned out simulated maps with what Pegden called "billions or trillions" of little changes and shifts to district lines.

"The enacted map is a 99.9999% outlier," Pegden said on the witness stand, adding that only partisan intent on the part of Republican lawmakers could account for such a statistical oddity.

The judges did not disagree with either expert but said GOP legislators lawfully applied the redistricting criteria contained in Article II of the state constitution, which, among other things, provides that Senate and House districts must consist of contiguous territory and that counties shall not be divided.

The court ruled that the "objective constitutional constraints that the people of North Carolina have imposed on legislative redistricting" are found in those Article II provisions, "not in the Free Elections, Equal Protection, Freedom of Speech or Freedom of Assembly Clauses."

An expert witness testifying for the Republican legislative defendants in last week's trial made that very point.

"Free elections really are about whether or not people can file, potential candidates have access to filing," testified professor Andrew Taylor, a political scientist at N.C. State University.

Taylor further testified that the state constitution gives North Carolina's legislature wide latitude in drawing political boundaries and that it is impossible to divorce partisanship from the redistricting process.

Brigham Young University Political Methodologist Michael Barber also testified for the defense, saying algorithms and computer simulations of maps don't tell the whole story in what is a deliberative process.

"One of my areas of research is using computational methods in social science. So they can certainly be helpful but it's also certainly the case that they have limits and [in] the legislative process, you obviously can't predict or input everything that happens in a legislature in any model," Barber said at trial last week.

At the start of every decade, lawmakers must redraw district maps with new 10-year census data. Those lines can lock in a party's political power for the long term.

A major thrust of the case against the Republican maps is the argument that urban, heavily Democratic areas in Wake, Mecklenburg and Guilford counties were sliced and diced to either pack Democrats into fewer districts or dilute their voting power by splitting up their communities and spreading them out among more right-leaning areas.

The plaintiffs also claimed GOP lawmakers drew maps that purposely dilute the electoral power of Black voters, who reside in large numbers in heavily Democratic-leaning areas. But the trial court's ruling indicates the judges were not convinced any impacts on Black communities were a result of unconstitutional racial gerrymandering, but rather a result of partisan gerrymandering, for which there are no clearly established limits.

"[T]he General Assembly consistently acted with an intent to redistrict for partisan advantage," the trial court ruling said, "and nothing in the record shows that to be a pretext for underlying racial considerations."

In 2019, after another state court panel found Republican-drawn district maps to be unconstitutionally gerrymandered on a partisan basis, the replacement congressional map reduced the GOP advantage from 10-3 to 8-5, in terms of seats. (Population growth recorded by the 2020 census resulted in North Carolina getting an additional seat in Congress.) That case applied to the 2020 elections only, though, and did not set a precedent since Republicans did not appeal that trial court ruling.

In Tuesday's ruling, the judges noted they were not bound by that 2019 trial court ruling and said that partisan gerrymandering is an established political practice not forbidden through any legislation or constitutional amendment.

 NC Rep. Destin Hall (R-Caldwell), Chairman of the House Redistricting Committee.
North Carolina General Assembly
NC Rep. Destin Hall (R-Caldwell), Chairman of the House Redistricting Committee.

The legislative defendants in the case included state Rep. Destin Hall (R-Caldwell) who chairs the House Redistricting Committee and was one of the most prominent architects of the recent GOP-led redistricting process.

Hall and legislative Republicans repeatedly extolled what they deemed to be a historically transparent process. Maps were to be drawn only in state House and Senate committee rooms on specially designated computer terminals with audio and video on a constant, publicly available livestream.

And Republican redistricting leaders vowed not to consider racial and partisan data in the drawing of maps. That pledge came as a result of maps in the past decade getting thrown out by state and federal courts for being unconstitutionally gerrymandered on the bases of race and extreme partisanship.

However, during committee hearings prior to the recently enacted maps being drawn, Hall basically said lawmakers would be on an honor system since no enforcement mechanism was put in place to ensure legislators were not either smuggling partisan or racial data into the committee rooms or consulting such data outside the rooms before sitting down at the map-drawing computer terminals.

State lawmakers hold a public hearing on redistricting at Durham Technical Community College last September.
Rusty Jacobs
State lawmakers hold a public hearing on redistricting at Durham Technical Community College last September.

Then, in sworn testimony during last week's trial, Hall admitted that he had consulted "concept maps" provided by a former aide, Dylan Reel, outside the map-drawing room, something, it turned out, he also divulged in a pre-trial deposition. Reel apparently showed Hall the "concept maps" on his phone.

But Hall testified the "concept maps" no longer exist and claimed they were "non-consequential" to his work on the final, enacted maps.

"And so there's no way plaintiffs today can look at those concept maps and test your assertion about whether or not they 'barely' informed your map-drawing, isn't that true?" Southern Coalition for Social Justice Attorney Allison Riggs asked Hall during cross-examination in last week's trial.

"As far as I know, that's true," Hall responded.

In a state where judges are elected in partisan contests, the lone Democrat on the trial court panel, Dawn Layton, agreed with the two Republicans, Graham Shirley and Nathaniel Poovey.

"While this ruling is disappointing, all signs ultimately point to the N.C. Supreme Court resolving this case," said Hillary Harris Klein, senior counsel for Voting Rights at Southern Coalition for Social Justice, in a statement released after the trial court's ruling. Klein was one of the attorneys who argued for the plaintiffs in last week's trial.

"We remain confident that our conclusive evidence of partisan bias, obfuscation, and attacks on Black representation, from expert testimony to the mapmakers' own admissions, will convince the state's highest court to protect voters from nefarious efforts to entrench partisan power at the expense of free elections and fair representation," Klein added.

In an order issued last month, the North Carolina Supreme Court delayed the 2022 mid-term election primaries — pushing them back from March to May — and put the redistricting litigation on a fast-track. Democrats on the state's high court hold a 4-3 edge over Republicans.

Copyright 2022 North Carolina Public Radio. To see more, visit North Carolina Public Radio.

Rusty Jacobs is a politics reporter for WUNC. Rusty previously worked at WUNC as a reporter and substitute host from 2001 until 2007 and now returns after a nine-year absence during which he went to law school at Carolina and then worked as an Assistant District Attorney in Wake County.