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The trial that will likely decide North Carolina’s political future for at least the rest of the decade is over. Now, the courts will decide whether they can and should intervene.
At issue are the political maps the state legislature drew, part of the constitutionally required process to recalibrate democratic representation after each census.
Because these maps control the grouping of voters of different political affiliations together, they have the power to make elections competitive between the political parties or to lock in power for one political party with little regard for how the other performs.
Republicans in the state legislature drew North Carolina’s maps last year. The maps heavily favor Republicans, according to expert analysis presented in the case.
Wanting to challenge the maps before they could be used in 2022 elections, three sets of groups sued, naming as defendants Republican legislative leadership, including House leader Tim Moore and Senate leader Phil Berger, as well as the Republican heads of the redistricting committees that actually drew the maps.
A threat to democracy?
The courts will decide whether the state constitution’s equal-protection, free-elections, free-speech or freedom-of-assembly clauses limit the amount of partisan interest that politicians can show when drawing maps.
Both sides argued that democracy was on the line, but only if Republicans win the case will one party be structurally locked out of power in the state legislature and the North Carolina delegation to the U.S. House of Representatives for the rest of the decade.
Since the state constitution gives the General Assembly power to draw political maps, Republicans argue the courts cannot intervene, even if the maps benefit one party over another to the effect of semipermanent control over the state legislature and U.S. House delegation.
Lawyers for the Republicans especially oppose the potential for the courts to require use of computer-generated maps in North Carolina’s elections.
“That’s not democracy,” said Phil Strach, the lead attorney for the Republicans, during closing arguments to the three-judge panel on Thursday. “It is in fact a threat to democracy and a recipe for further political polarization of the citizens of North Carolina.”
Strach echoed Republican complaints that judges legislate from the bench in a way that harms the separation of powers in state government. Republican leaders have widely voiced the argument since they took legislative control in 2011 . Strach and his team did not present any evidence at the trial that using computer-generated maps would increase political polarization.
The plaintiffs, in turn, argued that the maps would create a “massive and entrenched partisan skew” in favor of the Republican Party, in the words of one of their expert witnesses, Moon Duchin, a mathematician at Tufts University who has won national academic awards for her work on redistricting.
The N.C. League of Conservation Voters, a nonpartisan organization dedicated to environmental protection, and the National Redistricting Foundation, an organization backed by the Democratic Party, both sued in November. After the courts wrapped their cases into one, Common Cause, a liberal pro-democracy nonprofit, joined the lawsuit.
Under the Republican maps, the power of Democratic voters would be effectively minimized under an “anything goes” approach to gerrymandering, Elizabeth Theodore, an attorney representing the foundation plaintiffs, said in closing arguments.
The other plaintiffs restated that point and added that Black voters would be underrepresented in the state legislature and U.S. House.
“This map is deliberately designed to ignore the will of the people expressed through their votes,” Theodore said.
If the court agrees with the plaintiffs, it will have to come up with some measure for how much partisan gerrymandering is too much. Strach argued the plaintiffs did not put forward a consistent measure for what is an allowable versus an extreme gerrymander.
When the judges asked where they should draw the line, both the plaintiffs’ lawyers and their experts said that was up to the court to decide.
The political stakes could hardly be higher. Statewide, North Carolina votes nearly 50-50 between Democratic and Republican candidates, with slight edges for each party switching each statewide race and each election.
In 2020, that meant North Carolina voters chose the Republican presidential candidate, Donald Trump, with a narrow plurality to carry the state, while on those same ballots selecting Democratic Gov. Roy Cooper with a slight majority.
But Republicans are more likely to win a few more seats than Democrats in the state legislature and in Congress even when the statewide vote is evenly split, according to the plaintiffs’ redistricting experts.
That’s because Republicans are more spread out across the state and Democrats are more centered in cities. But that “self-sorting,” as it was called in the trial, only gives a slight advantage to Republicans, unlike the extreme advantage the current maps provide.
As an example, in the state’s previous congressional maps, drawn under state court supervision after a 2019 lawsuit, Republicans elected eight representatives to the House compared to the Democrats’ five.
But under the new maps, after the state gained another congressional seat due to population growth in the urban and Democratic areas of the state, Republicans are all but guaranteed to win 10 of those seats, according to the expert analysis submitted by the plaintiffs in the case.
If the courts uphold the maps, Republicans are very likely to have a majority in both state legislative chambers even if votes favor Democrats by up to 56% across the state, the expert analysis showed.
If Republicans win a majority of the vote, the party is well-situated to win a supermajority in the state legislature, effectively taking away one of the few checks on legislative power the Democrats would still have — the gubernatorial veto.
The maps position Republicans to maintain power through the rest of the decade, even insulating them against Democratic wave elections. If it works, Republicans would again be in power when it comes time to draw maps after the 2030 census, giving them a path to control North Carolina’s politics for the foreseeable future even if they consistently earn a minority of votes across the state.
All 150 state House seats, 50 state Senate seats and 14 U.S. congressional seats are up for election in 2022.
Trial revelation: secret maps
On Wednesday, under questioning by a lawyer for the plaintiffs, state Rep. Destin Hall said he consulted “concept maps” when drawing the state House districts.
Hall had previously denied doing so to Democratic lawmakers.
When the litigators asked to see those maps, Hall said they had since been lost or destroyed, a possible violation of state law both for the preservation of government records and all materials used in redistricting.
Hall is the chair of the House redistricting committee and was the primary mapmaker for the House districts.
Back in August, the Republican-controlled legislative redistricting committees laid out a set of rules for how they were going to draw political maps. Republicans rejected several additional transparency proposals from Democrats that would have required all legislators to disclose what third-party groups they worked with to design the maps.
Those rules included provisions barring the use of racial voting data and partisan voting data. Whether Hall actually consulted that data through the maps he was shown remains unclear.
Hall said the concept maps helped him speed up his work in drawing the legislative districts but also that they did not influence his decision-making.
This is impossible to prove as the maps no longer exist, said Allison Riggs, an attorney for the Southern Coalition for Social Justice who represented Common Cause in the case and who revealed Hall’s use of the maps.
The three-judge panel declined to impose sanctions against the defendants for not producing the the concept maps. The assistant to Hall who possessed the maps is no longer a legislative employee and thus not “subject to the demands or requests of a legislator employer,” according to their order.
The three trial court judges must rule in this case by Tuesday. Then, the parties have two days to appeal, which is highly likely. Any appeals will be taken up directly by the state Supreme Court.
The state Supreme Court set the timeline in mid-December when it also postponed the 2022 primaries from March 8 to May 17 to give the state courts time to hear the cases.
The move was part of the preliminary proceedings in this lawsuit which may may give a glimpse into the future.
When courts consider constitutional questions, the chief justice of the state Supreme Court appoints three judges at the trial level to hear the case. North Carolina’s Chief Justice is Paul Newby, a Republican.
Superior Court Judges Graham Shirley II, a Republican of Wake County, Nathaniel Poovey, a Republican of Catawba County, and Dawn Layton, a Democrat of Anson County, heard the case at the preliminary and trial stages.
In December, they unanimously declined to issue a preliminary injunction in the case.
“It is clear to us that the framers of our state constitution left the decision on districting or redistricting to a political party,” Shirley said.
When he announced the decision, Shirley said the ruling should not be understood to condone partisan gerrymandering, but the judges had a reasonable doubt that the state constitution can be used to prevent the legislature from drawing gerrymandered maps.
The plaintiffs appealed the decision to the state Supreme Court, which in North Carolina has seven elected justices. Four are currently Democrats, and three are Republicans. The Supreme Court overturned the trial court’s order, though with little explanation and without signing which justices agreed and which opposed the decision.
If the prior pattern is repeated, the trial court will rule that the court cannot interfere in the map-drawing process and the plaintiffs will appeal the decision to the Democratically controlled state Supreme Court.
The Supreme Court needs to make its decision and have maps ready by late February for the N.C. State Board of Elections to have enough time to prepare for candidate filing and the May elections, should the court order new maps to be drawn, according to documents filed by the board.