“[E]lections are not “free” where the partisan will of the mapmaker predominates over the ascertainment of the fair and truthful will of the voters.”– Three Judge Panel ruling in Common Cause v. Lewis.
In a monumental decision, a bi-partisan three judge panel in Wake County unanimously ruled North Carolina’s 2017 state legislative maps to be unconstitutional partisan gerrymanders and ordered new maps be drawn by September 18th for the 2020 elections.
There is no question that the maps were drawn intentionally to create a partisan advantage and to discriminate against Democratic voters in NC. Using partisan voting data has never been disallowed before, and the defendants have admitted that was their intent. However, the NC constitution has a clause which reads “All elections shall be free”. This forms the basis of the ruling, as the judges state: “The free elections clause of the North Carolina constitution guarantees that all elections must be conducted freely and honestly to ascertain, fairly and truthfully, the will of the people…it is not the free will of the people that is fairly ascertained through extreme partisan gerrymandering. Rather, it is the carefully crafted will of the map drawer that predominates.” As this is a matter of our state constitution, the final decision lies with our state courts, and will not be escalated to the US Supreme Court.
Now, after a decade of litigation, the courts have ordered remedy.
Will Every House and Senate District be Re-drawn?
No, only the contested districts must be revised. Wake County House districts were already re-drawn, so the areas affected include House Districts in:
Alamance, Anson-Union, Brunswick-New Hanover, Buncombe, Cabarrus-Davie-Montgomery-Richmond-Rowan-Stanly (except House District 66), Cleveland-Gaston, Columbus-Pender-Robeson, Cumberland, Duplin-Onslow, Franklin-Nash, Forsyth-Yadkin, Guilford (except House districts 57, parts of 59, 61 and 62), Lenoir-Pitt and Mecklenburg.
The Senate districts that must be redrawn are in the following counties:
Alamance-Guilford-Randolph (except Senate Districts 24, parts of 27, and all of 28), Bladen-Brunswick-New Hanover-Pender, Buncombe-Henderson-Transylvania, Davie-Forsyth, Duplin-Harnett-Johnston-Lee-Nash-Sampson, Franklin-Wake and Mecklenburg.
Couldn’t the Legislature Just Gerrymander These New Maps Again?
We the people will have to keep an on the legislature and be sure they follow the court’s order. The courts laid more than a dozen criteria for the new maps that would make it extremely difficult to discriminate in any substantial way. Some of the criteria:
- No election data may be used at all
- 2017 maps cannot be used even as a starting point
- The new maps must be VRA compliant
- The court has also stipulated that anyone the legislature brings in to assist (as Thomas Hofeller was previously) must be approved by the court
- The court will appoint a referee to assure compliance
- The map drawing must be done in full public view (no more secret sessions)
What Happens if the Legislature Doesn’t Draw New Maps Within Two Weeks?
The court’s referee will create them, and it would look very, very bad if the NCGA did not; the court used the GOP’s prior argument that maps could be competed in this time and added that since they were still in session, it should be no problem.
Could They Appeal? Why or Why Not?
Theoretically they could, with any appeal going to the NC Supreme Court, but Senator Berger has already stated the case is closed. The ruling determined the new maps would be drawn even if there was an appeal. There’s some speculation as to why they will not – see Rick Hasen’s blog for more.
We do, however, expect to see the GOP submit a redistricting bill or two now while they have a majority, to apply to maps drawn after 2020. They may appear independent on the surface, but will require in depth analysis to determine if it’s really the best option, since the governor can not veto redistricting bills. Be wary of any more constitutional amendments showing up on the ballot!
What Happens After the Next Census in 2020?
As happens every ten years, the 2020 census will predicate maps being redrawn in 2021. The court’s ruling this week is important, but ultimately, it is merely a stop gap measure to correct nearly a decade of bad maps that have been drawn since 2010. The good news, as Sen Jeff Jackson reminds us, is “With fair maps, we have a genuine shot at electing a state legislature that actually reflects the political will of our state.”
What Should I Do Now?
If you’d like to read more, check out the ruling’s introduction. You are welcome to read all 357 pages of the ruling, but one of the highlights for us is on page six which makes it pretty clear the court is sick of gerrymandering. “The voters of this state, since 2011, have been subjected to a dizzying succession of litigation over North Carolina’s legislative and Congressional districts in state and federal courts.”
If you’d like to keep an eye on the NCGA as they are redrafting these maps, be sure to check out PlanScore which is a tool that quickly calculates partisan outcomes to redistricting maps.
Finally, help get out the vote in 2020. Make sure your registration is up to date, and remind your family, friends, moms, dads, college students and the cashier at your local grocery store to register and vote as well. Volunteer with You Can Vote, FlipNC, or another group working to ensure high turnout. All the hard work that has been done to finally get fair maps could be in vain if voter turnout is low. Let’s not let that happen on our watch.
September 10, 2019 Update
What has been happening now that the NCGA has started its two week timeline to draw new maps?
The House and Senate Committees on Redistricting met separately for the first time on Monday, Sept 9th to discuss the process that would be used for drawing new maps for the counties affected by the court ruling. Discussions during the first day’s meetings centered around the starting point for creating new maps.
Without debate or discussion, the GOP committee chairs stated they would be using the set of maps that were presented in court by Dr. J. Chen, an expert witness for the plaintiffs, due to the limited timeframe they had to work within. Dr. Chen’s maps were created randomly by computer without the use of partisan data to show that none of them were skewed as much as the final maps drafted by the NCGOP.
However, it’s important to understand that Dr. Chen created these maps as evidence, not as options to be considered for actual use, and he created two sets – one which considered incumbents’ addresses to avoid double bunking them and one which didn’t. The GOP committee chairs stated they would start with the set of 1000 maps which protected incumbents since the court said that information “may” be used (but not that it “shall” be used).
Dr. Chen’s maps were also created on a statewide level, not considering the counties on an individual basis. We feel it is important to look at each county cluster individually, so all districts can be created with the same level of fairness. Essentially, the GOP knows that some of these 1000 statewide maps are more suited to a GOP advantage than others, since they are a random mix of drawings. By deciding which criteria they want to use to winnow down the maps and choose a few to work from, they are able to build in an advantage from the start.
The primary reason the GOP has given for using Dr. Chen’s maps is that it would take too long to start from scratch, and that without the raw data the legislative staff would have to manually create a new spreadsheet to sort the maps based on the ranking scale they come up with. Dr. Elizabeth Sbrocco, an independent data scientist, lays out the case why this is not necessarily true. She summarizes by suggesting the NCGA only look at the areas affected and:
- draw districts using VTDs (precincts) instead of (census) blocks.
- respect the whole county provision/minimize county traversals.
- minimize splitting municipalities.
- eyeball compactness.
- use Chen’s data to test maps.
FlipNC also has a good summary of the concerns with using Dr. Chen’s maps as a starting point. Meanwhile, in true NC political fashion, the Senate committee opted to bring in the NC lottery machine to pick which base map to use as a starting point!
The other point of discussion in the first 24 hours centers around NC Policy Watch’s breaking news Monday evening that the attorneys for the defendants mistakenly emailed the raw data for all of Dr Chen’s maps, including partisan scores for each of the 1000 maps that were selected to be used as a starting point, to the House Committee members. The link to the forbidden data was taken down quickly, but given the history of misconduct by those who have been creating the maps for the last nine years, this process bears careful scrutiny and is something that needs to be closely watched over the next two weeks.
To follow along between now and the deadline of Sept. 18th, here are some links that allow the public to access the process:
- To listen in on committee discussions, use this audio link: https://www.ncleg.gov/Audio, and select Room 544LOB for the Senate discussions and Room 643LOB for the House discussions.
- To make comments to the Senate Committee on Redistricting and Elections use this link: https://www.ncleg.gov/RequestForComments/29?fbclid=IwAR1t8RXdeilxaUFVKKm2mXOaeUtvm5ya1HTY_GVJztTFYQXNIg7ZmrbWs0c
- To make comments to the House Committee on Redistricting use this link: https://www.ncleg.gov/RequestForComments/30
- A YouTube channel has been created allowing the public to view all committee meetings.
- Link to Dr Chen’s report on the maps he created for the court: https://www.nccourts.gov/assets/inline-files/EX0001.pdf?t7FDTlmdlGoFDxly22RuvSt.m9T2qNxQ
Good twitter handles to follow for insight on the process as it plays out are: