Superior Court judges Nathanial Poovey, Graham Shirley and Dawn Layton hear arguments over new voting districts in North Carolina on Dec. 3, 2021. Jordan Wilkie / Carolina Public Press

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North Carolina once again has political maps to run its elections, at least for the moment. 

A three-judge Superior Court panel approved the N.C. General Assembly’s newly drawn political maps for the state Senate and House but rejected the General Assembly’s proposed congressional map, saying it failed tests for acceptable levels of partisanship that the state Supreme Court had laid out

“The General Assembly has failed to demonstrate that their proposed Congressional map is narrowly tailored to a compelling governmental interest, and we therefore must conclude that the Remedial Congressional Map is unconstitutional,” the judges wrote in Wednesday’s order.

No party had expected this result in court filings to date. 

Groups that sued to block the maps also submitted their own proposed maps to be used should the legislature’s maps not pass constitutional muster. The three judges dismissed that notion and the plaintiffs’ maps. 

Legislative defendants, the Republican leadership in the General Assembly who were sued over their political maps, warned the court that intervening in the congressional maps may violate federal law. The court limited its intervention by creating only a temporary map.

“Given that the ultimate authority and directive is given to the Legislature to draw redistricting maps, we conclude that the appropriate remedy is to modify the Legislative Remedial Congressional Plan to bring it into compliance with the Supreme Court’s order,” the judges wrote in Wednesday’s order. 

The map they drew should only be used for the 2022 elections, the judges wrote, allowing the General Assembly to try again on congressional maps that would in theory be used for the rest of the decade. 

Whether all or any of what the three-judge panel ordered Wednesday will stick remains to be seen. The same panel upheld the General Assembly’s previous maps in January, but the state Supreme Court overruled them earlier this month, leading to the new maps and Wednesday’s order.

As things stand, county election officials now have until 8 a.m. Thursday to prepare for candidate filing, a much shorter window than they usually have to make sure candidates are trying to run in districts where they are eligible. The N.C. State Board of Elections developed a new “web-based district-locator tool” to help county election officials meet the deadline.

The redrawn House and Senate maps include more solidly Democratic and competitive districts than the ones the Supreme Court ruled were unconstitutional for underrepresenting Democratic voters, but the groups suing the state for having unfair maps say the redraws are still not good enough. 

It is too soon to know the likely political outcomes of the court’s temporary congressional map, though it is likely also more equitable between the parties given that the court rejected the proposed remedial plan from the legislature for not meeting partisan fairness metrics. 

All parties have until 5 p.m. today to ask the state Supreme Court for an emergency halt to the election process to give the courts time to review, and possibly overturn, the trial court’s decision. 

Should the Supreme Court agree to a stay, based on one or more appeals, it would have to delay candidate filing and the 2022 primary election for a second time, at least for the affected races. 

What the court had to decide

The state’s courts are operating on an incredibly compressed time frame. The General Assembly and the parties suing the state submitted their versions of political maps on Friday by 5 p.m. Then, by Monday at 5 p.m., they submitted their arguments for why their maps were the best ones to choose. 

Superior Court Judges Graham Shirley II, R-Wake, Nathaniel Poovey, R-Catawba, and Dawn Layton, D-Richmond, had less than a day and a half to consider the eight total maps and the parties’ arguments to come up with Wednesday’s decision. 

They had to base their decision on a 2-week-old state Supreme Court order that set a new precedent for state constitutional requirements and left several open questions, such as what the bright line is for partisan interest in map-drawing becoming unconstitutional. 

That the three judges chose to approve the General Assembly’s proposed state House map is not a surprise. State House leaders from both parties collaborated to draw the map and passed it nearly unanimously. 

Two of the groups suing the state, the N.C. League of Conservation Voters and Common Cause, opposed the House maps, arguing the maps they drew were fairer to both parties and to Black voters. But the arguments were not as full-throated as they were against the other two maps. 

Every plaintiff — including the third group to sue the state, which is represented by the National Redistricting Foundation, which in turn is backed by the national Democratic Party — opposed the General Assembly’s proposed state Senate and U.S. congressional maps. 

Republicans passed those maps on party-line votes. Senate leader Phil Berger invited Senate Democrats to draw the maps collaboratively, though the Democrats decided not to participate, according to the legislative court filings. 

In public statements and on the Senate floor, Democratic Senate leader Dan Blue said the Republican approach was not transparent and, despite “last-minute” efforts to compromise on some Senate districts, limit the seats Democrats could win to 21 of 50. Democratic lawmakers did not draw their proposed maps on public terminals, as Republicans were required to, and Republicans voted against Democratic amendments to the maps. 

In court filings, the legislative defendants argued that their maps should be considered “presumptively constitutional” and that every map they drew was within the fairness boundaries the Supreme Court put forth. 

The plaintiffs, of course, disagreed and argued the maps should be subject to a strict review.  Under that review, they argued, neither the proposed remedial Senate nor congressional maps met the Supreme Court’s standards of partisan fairness and that the defendants’ calculations saying otherwise were performed incorrectly. 

The trial court split the difference, agreeing with the plaintiffs that the maps required a strict review yet still passing the Senate map. 

‘Special masters’ helped craft the decision 

When the state Supreme Court ruled on Feb. 4 that the legislature’s maps from November were unconstitutional, it ordered the legislature to redraw maps and submit them to the trial court for approval. 

To help themselves make that decision and wade through the legal and political thicket of new constitutional standards and redistricting, the judges appointed a supergroup of special masters and assistants

The three Superior Court judges appointed two former state Supreme Court justices, Robert OrrRobert Edmunds Jr., and a long-serving Superior Court judge and former president of the UNC System, Thomas Ross

Those special masters then hired assistants versed in the mathematical models and computer programs needed to assess fairness in political maps, choosing Bernard Grofman, a University of California Irvine professor; Eric McGhee, a fellow at the Public Policy Institute of California; Sam Wang, director of Princeton University’s Electoral Innovation Lab; and Tyler Jarvis, a Brigham Young University math professor. 

The three-judge panel made its recommendations based on a report from the special masters, according to the order. 

On Monday, legislative defendants asked the court to remove Wang and Jarvis from the case and destroy their work product because both assistants had reached out to other experts that had testified for the plaintiffs in the case for clarification on their methods despite a court order saying that was not allowed. 

The special masters reviewed the situation, said the violation was a technical violation “not made in bad faith” and the advice from Wang and Jarvis was not determinative of their decision.

Taking that advice, the Shirley panel rejected the legislative defendants’ motion, and cleared Wang and Jarvis to continue to assist the court should there be further litigation. 

Jordan Wilkie

Jordan Wilkie is a Report for America corps member and is the lead contributing reporter covering election integrity, open government, and civil liberties for Carolina Public Press. Email jwilkie@carolinapublicpress.org to contact him.