This is part 4 of a series on gerrymandering. I recommend you take a look at the first three posts if you aren’t already familiar with voting rights law (Post 1, Post 2 and Post 3). This piece focuses on North Carolina state legislative districts and the Covington v. North Carolina lawsuit that challenged the lawfulness of those districts.

First, some background. The court’s holding in Covington should be understood through the lens of North Carolina’s comprehensive election law statute (Election Law), which required voters to produce photo IDs, eliminated same-day voter registration, cut early voting by a week, and increased the maximum campaign voter contribution to $5,000.

Indeed, Covington is one of several cases resisting a scheme by Republicans in North Carolina to erect a scaffolding of voter obstruction– a wall around the voting booth– and patently partisan gerrymandering designed to maintain Republican dominance in a politically divided state. Republicans claim these measures were required to prevent voter fraud–something that academic research by nonpartisan groups have repeatedly found to be extremely rare in America. POTUS is fond of perpetuating this lie. The Truth About Voter Fraud issued by the Brennan Center at NYU is a great summary of the research into voter fraud in the U.S.

The North Carolina Election Law was successfully challenged on race discrimination grounds. The Fourth Circuit Court of Appeals struck down several provisions of the Election Law holding that the North Carolina General Assembly (NCGA) acted with discriminatory intent in passing the law.  The NCGA intended, the Court held, to keep black voters from voting in high numbers. From a purely legal perspective the Fourth Circuit’s opinion was unique and remarkable. Generally speaking, in the past decade or so, it is exceedingly rare for a federal court to find that a governmental body acted with discriminatory intent. Instead, most decisions have focused on laws enacted with a racially neutral mindset that had the unintended consequence of negatively impacting minorities, a “disparate impact” claim. Here, however, the Court found the record replete with evidence that legislators focused on reducing the number of legitimate black votes cast in North Carolina.

How did the court know what the GOP-led legislature intended? Well, let’s just say they weren’t very subtle. Before enacting the Election Law the legislature requested demographic data, focusing on race, regarding voting practices. After reviewing the race-based voting pattern data, NCGA enacted the Election Law. The Fourth Circuit held:

Although the new provisions target African Americans with almost surgical precision, they constitute inapt remedies for the problems justifying them and, in fact, impose cures for problems that did not exist. Thus the asserted justifications cannot and do not conceal the State’s true motivation. Faced with this record, we can only conclude that the North Carolina General Assembly enacted the challenged provisions of the law with discriminatory intent. Accordingly, we reverse the judgment of the district court to the contrary and remand with instructions to enjoin the challenged provisions of the law.

It was in this context–after the Fourth Circuit had found express race discrimination on the part of the NCGA–that a three judge panel in the Middle District of North Carolina struck down North Carolina’s state legislative districts as also based unlawfully upon race.

Covington v. North Carolina

In Covington v. North Carolina, North Carolina voters alleged that in 2011 the NCGA created redistricting plans based unconstitutionally on the race of voters. The GOP-majority legislature contended that race was not the primary factor relied upon in drawing voting districts, and even if it was, that reliance on race was reasonably necessary to serve a compelling state interest—namely, compliance with the Voting Rights Act (VRA).

Specifically, the VRA prohibits redistricting that results in vote dilution (when minorities have less opportunity than white people to participate in the political process and to elect representatives of their choice). In North Carolina, redistricting must also comply with the  North Carolina Constitution Whole-County Provision (WCP), which requires that “[n]o county shall be divided in the formation of a senate district.” The Supreme Court of North Carolina has held that the WCP + the VRA require, in combination, voting districts be drawn to group counties together as much as possible.

Between 1991 and 2010, the number of majority-minority districts (+50% black) in North Carolina’s state House and Senate gradually declined. Due to coalitions between black voters and white Democrats, many black NCGA candidates nonetheless won their elections even when running in non-majority-minority districts. In the three election cycles preceding the 2011 redistricting, black candidates for the North Carolina House won 39 general elections in districts without a majority Black Voting Age Population (BVAP) and black candidates for the Senate won 24.

The 2011 Redistricting Process

Senator Rucho chaired the 2011 Senate Redistricting Committee and Representative Lewis chaired the parallel 2011 House Redistricting Committee. Together, Rucho and Lewis managed the redistricting process. The map itself was drawn done by Dr. Thomas Hofeller, whom the NCGA’s private lawyer engaged to design the 2011 redistricting plans.

Rucho and Lewis told Hofeller to first identify geographically compact minority populations and then draw majority-minority districts in those locations. They called these majority-minority districts “VRA districts,” which they defined as having at least 50%-plus-one BVAP. This created a de facto rule for the 2011 legislative map that all majority-minority “VRA” district had to 51% black or greater. After a shade over a month, Hofeller provided maps to the public and the redistricting committees.

Hofeller is not just some academic who draws neutral redistricting maps. Instead, he is a Project Red Map operative. Hofeller uses cracking and packing techniques discussed in previous posts to create as many safe GOP districts as possible.  He uses Section 2 as a “cover” for otherwise partisan motivations.  NPR has a great discussion of Hofeller and Red Map here.

In November 2011, plaintiffs challenged 27 state House and Senate districts, as well as 3 Congressional districts by filing suit in the Middle District of North Carolina alleging that they were unconstitutional racial gerrymanders.

The Covington plaintiffs challenged North Carolina Senate districts 4, 5, 14, 20, 21, 28, 32, 38 and 40 and North Carolina House districts 5, 7, 12, 21, 24, 29, 31, 32, 33, 38, 42, 43, 48, 57, 58, 60, 99, 102 and 107 (collectively Challenged Districts”). Each of the Challenged Districts was a purported “VRA district” (a majority black district allegedly mandated by the VRA). The claim was that race predominated that traditional race-neutral redistricting principles and the use of race was not justified by any compelling state interest.

The court meticulously analyzed each of the challenged districts to determine whether issues of race predominated decision-making and, if so, whether such considerations were narrowly tailored to meet a compelling state interest. For 167 pages, the Middle District of North Carolina’s three-judge panel looked at how race was considered in each Challenged District. It also examined studies of racially polarized voting in North Carolina–to what extent candidate election correlates to race. Although in North Carolina black voters tend to vote Democrat, studies have shown that when voting patterns are examined based on geography, black and non-black voters prefer the black voters’ candidate of choice. This candidate may or may not be black. As mentioned in previous posts, in North Carolina, black voters and liberal white voters have worked together to elect the candidate of choice, who may or may not also be black.

The court noted that in drawing the Challenged Districts the GOP assumed that black voters always or nearly always prefer the black candidate. However, the facts did not bear this out. For example, the GOP mapmakers drew Senator Linda Garrou, who is a white Democrat and former State Senate Minority Leader from Forsyth County, out of a majority-minority district because she reliably beat black candidates. However, an overwhelming majority of black voters voted for Senator Garrou over black candidates. In other words, the evidence tended to show that a white candidate had the support of black voters, which was ignored in the map drawing.

Also, white voters support black candidates. Senator Dan Blue, a black senator from Wake County, was repeatedly elected from a majority white district. He was the preferred candidate of black voters but also had substantial white and other non-black support. All of this is to say that voter race and candidate selection do not correlate 1:1 in North Carolina.

Nonetheless, as has been the case in other redistricting efforts nationwide, the GOP crammed Democratic voters, especially voters of color, into majority-minority districts in order to create a smaller total number of Democratic seats in the NCGA. Those seats would elect Democrats with very large wins (significantly in excess of 51% of the vote) thereby wasting those Democratic votes in nearby districts, resulting in the election of more Republicans.

The Middle District of North Carolina found that the GOP’s 51% BVAP rule ignored historic coalition voting and over-relied on race and race-based assumptions in drawing state legislative districts. The court struck down ALL of the Challenged Districts holding they violated the Equal Protection clause of the US Constitution and ordered that new maps be drawn.

However, because Covington was decided in late August 2016, the Court did not require the NCGA to redraw the maps before the November 2016 election. Time was simply too short, the Court held, and voters could be confused about which district they were in and who were the candidates running in those districts.

New Maps/ Special Election

Just after the November 2016 election, the Covington plaintiffs moved the Court to order that new maps be drawn and special elections held in the fall of 2017 to remedy the unconstitutional gerrymander.

The same three-judge panel that made the initial ruling held that special elections were appropriate in this case. The court stated:

While special elections have costs, those costs pale in comparison to the injury caused by allowing citizens to continue to be represented by legislators elected pursuant to a racial gerrymander. The Court recognizes that special elections typically do not have the same level of voter turnout as regularly scheduled elections, but it appears that a special election here could be held at the same time as many municipal elections, which should increase turnout and reduce costs. A special election in the fall of 2017 is an appropriate remedy.

The court then ordered that new maps be drawn by March 15, 2017.

To Stay or Not to Stay?

The day before newly elected Democratic Governor Roy Cooper was sworn in to office, the attorney for the GOP legislature, Paul Clement, filed an emergency motion for a stay of the three judge panel’s order. I wrote about it here. This was a strategic play to stay the special elections before Cooper, a Democrat, could oversee special elections.

On January 10, 2017, SCOTUS stayed North Carolina’s special election pending its decision on the GOP’s motion for review. This meant that the NCGA did not have to redraw the maps or plan on holding a special election in 2017 until SCOTUS acts on the merits of the petition for review. SCOTUS has not yet ruled on whether it will hear the case.

In the interim, while SCOTUS was considering its jurisdiction, Governor Cooper and Attorney General, Josh Stein (also a Democrat), took steps to withdraw North Carolina’s petition for a writ of certiorari to SCOTUS–essentially notifying SCOTUS that North Carolina doesn’t want to appeal the decision of the Covington panel after all.

Phil Berger, the NC Senate Majority Leader, has opposed the move stating that Cooper and Stein cannot dismiss the petition, nor fire the state’s attorneys.

Whether Cooper and Stein can withdraw the petition turns on N.C.Gen.Stat. Sec. 147-17. This statute seems to state that the governor and the AG have exclusive control over state litigation if a state agency is involved, such as the State Board of Elections, which is a defendant here.

The statute itself is ambiguous. Accordingly, it is unclear whether SCOTUS will dismiss the petition. If it does, then the lower court opinion in Covington would stand, requiring redrawn maps and, potentially, a special election in 2017. However, practically speaking, the more time that passes before the issue is resolved, the less likely a 2017 special election becomes. Practically, it takes time for the North Carolina elections officials to call and hold an election. Thus, the GOP may win here, even if they lose, simply by running down the clock.

What is next?

It’s hard to say what comes next in the Covington litigation. SCOTUS could reject Cooper and Stein’s move and decide to hear the case on its merits. It could reject Cooper’s move and still decline to hear the case, known as denying “cert”. Or, it could accept Cooper and Stein’s withdrawal and dismiss the case on those grounds. Any of these outcomes will significantly impact the ability of North Carolina voters to elect their state representatives.