Will state law send redistricting maps back to the drawing board?

by Sharon Mccluskey, NC Policy Watch, November 20, 2014.

Much of the reporting last week on argument in the Alabama redistricting case before the U.S. Supreme Court focused on the bounds of permissible gerrymanders – and rightly so, given the novelty of the underlying claims.

Alabama, like North Carolina, drew its 2012 voting districts using admittedly racial criteria, saying that provisions of the Voting Rights Act required them to draw lines as they did.

The resulting maps brought claims from minority and other groups that lawmakers were using the Act as cover for more sinister goals, like diminishing the voting power of black voters in many parts of the state.

And that turn on the typical gerrymander claim left the justices of the nation’s highest court somewhat perplexed.

“You realize, I assume, that you’re making the argument that the opponents of black plaintiffs used to make here,” Justice Antonin Scalia asked one of the lawyers for the challengers. 

Justice Anthony Kennedy, the court’s swingman, suggested aloud that, had Alabama lawmakers simply said they drew the maps for political advantage – instead of based upon racial factors – they would have been in the clear.

The Alabama case presents many of the same factual issues and legal questions raised in the redistricting case pending before the North Carolina Supreme Court, and a decision some time later this year from the nation’s highest court may frame a resolution here. 

But gerrymander questions aside, the challengers to the North Carolina maps also contend that the state’s 2012 maps violate the whole county provisions of the state constitution – a claim that could itself send the maps back to the drawing board.

The Voting Rights Act as cover

The 2010 census coincided with a return of Republican control to several state legislatures, many of which then redrew voting maps in similar fashion.

As in Alabama, state lawmakers here drew the 2012 maps using express race-based criteria – saying that the Act required them to create a number of voting districts roughly proportional to the state’s African-American population and then populate those districts with 50 percent or more black voters.

That cold calculation ignored realities on the ground, map challengers have argued.

Lawmakers used race too often, they claimed, when it wasn’t necessary, and too much — packing black voters into districts until their numbers reached beyond the 50 percent mark, even though the African-American populations there, while still in the minority, had already been exerting political influence and electing their candidates of choice.

“The purpose of the Voting Rights Act was to create a world where it wasn’t necessary to create majority black districts for blacks to be elected,” said Eddie Speas, one of the lawyers for the parties challenging the North Carolina maps.

A proper assessment of Voting Rights Act requirements in redistricting cases is more nuanced, experts have said, and would necessarily involve an examination of existing minority voting patterns and strength to see if they’ve already established political control.

And states ignoring those realities on the ground when redrawing maps are just using the Act as a ruse, they’ve argued.

Here’s Justin Levitt, one of several law professors who submitted a friend-of-the-court brief to the state Supreme Court, in recent article examining recent state redistricting efforts:

In this redistricting cycle, several jurisdictions seem to have cast aside the Voting Rights Act’s careful tailoring to local political conditions and aversion to racial essentialism. Instead, they seem to have relied on ham-handed demographic targets — a belief, real or professed, that the Voting Rights Act simply requires hitting a predetermined number of minorities in a predetermined number of districts. These jurisdictions deliberately sought to maintain supermajority quotas of minority voting-age or citizen voting-age population ostensibly to avoid retrogression, or to peg districts at a 50% minority-voter threshold ostensibly to satisfy section 2, without the searching local electoral analysis required to determine if those targets were statutorily necessary or sufficient.

As a result of the 2012 plan, the number of majority black senate districts in North Carolina went from zero in 2002 to nine in the 2012 plan. The House went from nine majority black districts in 2002 to 23 in 2012.

Getting to those numbers meant that black voters were pulled from other districts simply to get over the 50 percent mark elsewhere.

Testing state constitutional limits

States’ invocation of the Voting Rights Act as a defense necessarily gives rise to federal constitutional claims.

But state constitutional limits are implicated too, and in the North Carolina case they are expressly stated.

Here, map challengers have alleged that lawmakers violated the state constitution’s “whole county” provisions, which provide simply that “no county shall be divided” in the formation of a senate or a representative district.

In practice that mandate has not been an absolute, as courts here have limited its application when, for instance, keeping a county whole would violate provisions of federal law – including the Voting Rights Act.

Invoking the Act again, lawmakers here adopted a plan that split many more counties than necessary, plaintiffs have alleged – going from a 2002 Senate plan that divided 12 counties to a 2012 plan that split 19, and a 2002 House plan that split 46 counties to a 2012 plan that split 49.

In doing so, the plaintiffs added, lawmakers ignored an alternative plan proposed by Democrats in the General Assembly that did less damage to counties and violated the whole county provision.

At the heart of these state constitutional claims is the question of just how compliance with the whole county provision should be measured. Challengers say that should be judged simply by the number of counties the plan – versus competing plans — keeps whole.

But state lawmakers have a more convoluted measure, saying that the whole county provision required them to group counties together as needed to comply with the Voting Rights Act and then count those clusters. 

Clustering counties meant lawmakers had to split more counties than necessary, plaintiffs have argued — as happened with a 20-county cluster running from Nags Head to Charlotte (dubbed “Cluster Giganticus” by state mapmaking expert Thomas Hofeller), where most of the 20 counties in the cluster were split.

After the arguments in the Alabama case, Justin Levitt suggested in this article that state lawmakers maybe using the Voting Rights Act not only to justify a racial gerrymander but also to avoid state constitutional limits.

In Alabama for example, where legislative delegations effectively dictate county policy, some challengers to the state’s 2012 redistricting plan alleged that it was drawn in a way to limit black control over county policymaking.

County control may not be the issue in North Carolina, but evidence adduced before trial showed that lawmakers in at least some instances here used the Act to justify avoiding the whole county provision for other reasons.

Beaufort County, for example, was split in 2012 for the first time ever.

When asked at deposition why, Rep. David Lewis attributed the split to “politics” — a justification clearly outside the bounds of the whole county provision.

“This was a change that was made at the request of one of our members, Representative Sanderson,” Lewis said. “Sometimes when you‘re in the political world and you‘ve got to get enough votes to pass a plan, sometimes you have to make some hard calls. Representative Cook was opposed to this call, but ultimately it was—it was my choice to make.”

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