In the summer of 2021, a two-sentence email arrived in the inboxes of each staff member of the N.C. General Assembly offering the “ethics tip of the day.” The topic: confidentiality.
The legislature was still months away from what would become yet another pitched battle over redistricting, that normally once-in-a-decade process of redrawing political lines that, in North Carolina at least, has taken place a lot more frequently.
The following fall, hundreds of people would gather at forums across the state to demand the legislature produce fair maps. And half a year later, the U.S. Supreme Court’s decision not to intervene finally locked the next election districts into place after an onslaught of legal wrangling at the state and federal levels.
Yet before all of that was this brief email, dated July 6, 2021, from the legislature’s ethics staff. It referenced a 40-year-old provision in North Carolina law that guaranteed transparency around the creation of new district maps, which can determine the balance of political power for a decade.
As soon as those maps become law, the email read, “all drafting and information requests to legislative employees, and documents prepared by legislative employees for legislators, concerning redistricting the North Carolina General Assembly or Congressional Districts are no longer confidential and become public records.”
But how much transparency the measure guarantees in practice, it seems, depends on whom you ask.
Journalists with the N.C. Watchdog Reporting Network used this law to request records in early 2022 from about 40 state lawmakers and the legislature’s top staffer, including leadership of the N.C. House and Senate and all members of the two chambers’ redistricting committees. The project was timed for Sunshine Week, an annual celebration of open government and transparency.
Some lawmakers denied having any records to provide. Other legislators took nearly two months to turn over a few hundred documents, many that shed little insight into the map-drawing process.
GOP leaders have called their most recent redistricting effort the most transparent in history — and they point to the hours of livestreamed, archived video of the process and the more than a dozen proposed maps posted online as proof.
Yet, one top Republican also acknowledged — when compelled under oath — that his staffer had “concept maps” kept secret from the public. Court testimony revealed that these maps were apparently destroyed. Lawmakers produced none of those records in response to the reporting network’s requests.
That raises questions about just how much was kept from the taxpaying public, which since 2011 has spent at least $11.8 million in court battles that have repeatedly thrown out Republican-drawn maps over unconstitutional partisan and racial gerrymandering.
Brooks Fuller, an attorney who runs the N.C. Open Government Coalition, said people in a democratic society can’t understand the process without access to those records.
“Understanding the ways by which our General Assembly draws maps, and understanding the implications of all of the ingredients to that process, is at the core of what it means to have a vote in the United States and specifically in North Carolina,” Fuller said in an interview.
“So, redistricting communications, records, documents and everything that falls under that purview is just critical to understanding how the democratic process works.”
‘A very clear line of demarcation’
State legislators, like all other elected officials and public employees, are covered by North Carolina public records law.
But in practice, they can claim a few special privileges that exempt some records from public scrutiny.
“One document might be a public record in the governor’s hands but might be exempt from disclosure in a legislator’s hands,” said Amanda Martin, an attorney and chief counsel for the N.C. Press Association who regularly represents media organizations in public records lawsuits.
In 1983, the then-Democratic-controlled General Assembly passed a measure that exempted both “drafting and information requests” from state lawmakers as well as “documents prepared by legislative employees upon the request of legislators” from the public records law. The idea, according to a 1984 General Assembly study on the new confidentiality provision, was that “legislators have a right to speculate and be protected from harassment and premature publication.”
But lawmakers kept some transparency when it comes to redistricting: Once new maps are passed into law, all those drafting and information requests and documents prepared by legislative employees become public.
“It’s a very clear line of demarcation where, throughout the process, the documents are private to promote frank and open and honest conversation and work product on the redistricting process,” Fuller said.
“Then, as soon as the map becomes law, we get to see what the communications were, and we get to see what the drafting requests were, and we get to see the documents that went into the process of making maps.”
Those documents, though, don’t always exist.
An attorney for Senate leader Phil Berger, R-Rockingham, said he “did not play an active role in the 2021 redistricting process” and had no records to provide.
Eight state lawmakers directly involved in the redistricting process told the N.C. Watchdog Reporting Network that they had no records to hand over.
That includes several GOP senators who responded with formal letters using largely identical legal language.
“My office did not make a drafting or information request to any legislative employee related to redistricting, nor did a legislative employee prepare documents related to redistricting at the request of my office,” wrote Sen. Kathy Harrington, R-Gaston, the Republican majority leader, in early February. “Therefore, my office does not possess documents responsive to your request.”
Two Democrats who served on the committees, albeit often in diminished roles as members of the minority party, also said they had nothing to disclose.
“I have no documents to give,” wrote Rep. Cecil Brockman, D-Guilford, in an email in January. “I purposely (chose) to allow the majority to ‘hang themselves,’ which it appears they did.”
On March 10, Paul Coble, who leads the full-time staff of the General Assembly, refused to provide any records, pointing a reporter instead to maps and other material posted online. Coble’s response came by postal mail fully seven weeks after receiving the request by email.
“If there is additional public information you believe may exist, please contact me, but your initial request was overly broad in its context,” Coble wrote.
Not one of the members of the state House or Senate who received nearly identical requests responded with that complaint.
Unlike records laws on the federal level and in other states, there’s no set time limit on when North Carolina agencies have to respond to public records requests.
But Martin said extensive delays — even if lawmakers responded eventually — may violate the N.C. Public Records Law’s requirement to provide documents “as promptly as possible.”
“It does not sound as if that provision of the public records law has been followed,” Martin said, pointing to a recent case in Columbus County wherein a judge found the local sheriff illegally withheld records for more than a month.
“If you’re just being ignored, we now have case law that says being ignored is a violation of the law.”
‘Never put anything in an email’
More than two dozen lawmakers, however, did provide at least some records in response to requests from the N.C. Watchdog Reporting Network. All told, the responses total more than 10,000 pages of emails, maps, spreadsheets and other files, some provided as recently as Wednesday night.
Sen. Dan Blue, D-Wake, who helped steer the redistricting process in the 1990s as speaker of the House when his party was in charge, said his office took a broad view of the request when it handed over more than 4,000 pages of records. The most recent cycle, he said, generated more emails, texts and letters than he’d ever seen on the topic.
“We take the attitude that it’s the public’s information,” Blue said. “The public ought to know how we processed it to come to the conclusions that we come to.”
More than a dozen Republicans also provided records numbering from a few dozen pages to several hundred. But in some cases, GOP lawmakers noted that they were interpreting the request much more narrowly, citing the language of the redistricting exemption — and a related 2013 N.C. Supreme Court case.
That state law, Sen. Ralph Hise, R-Mitchell, wrote in a March 9 letter, “governs the disclosure of redistricting communications. The Public Records Act does not.”
A spokesperson for Berger’s office declined to comment directly on the Democratic response to the request — or the differences in the Republican response — noting that “each office is the keeper of their records and thus there is the possibility for each office to interpret the law differently.”
Berger’s office maintains the legislature “made good-faith efforts to make the redistricting process as transparent as possible in 2021.”
“The public had a front-row seat to the redistricting process, including all drafting requests, which were made in the committee room and broadcast over the livestream,” said Lauren Horsch, Berger’s spokesperson, in an emailed statement.
The maps drawn in that way will not be used in the 2022 elections. In a court-ordered redrawing of the districts, legislators did not use the same public process, saying there was not enough time.
Blue said he’s skeptical of GOP lawmakers who said they had nothing to provide.
“To say that I’m shocked would be an understatement,” Blue said. “They’re the ones who drew the maps.”
Few people in North Carolina know as much about the redistricting process as Eddie Speas.
In a challenge to maps drawn in 2001, he worked in the attorney general’s office and defended the state. That time, Republicans challenged maps drawn by a Democratic majority. A decade later, the political winds flipped, and he represented Democratic plaintiffs who challenged maps drawn by a Republican majority.
Speas says if legislators and their staffs were careful, there might not be many responsive documents at all. He referenced Thomas Hofeller, the late Republican political strategist, who helped draw maps that were later struck down as racial gerrymanders.
“The infamous Tom Hofeller — the greatest gerrymanderer of all time, in many respects — used to give lectures around the country about how to draw maps,” said Speas, now an attorney at Poyner Spruill. “And one of the things he would always say, ‘Never put anything in an email.’ And, you know, I’m sure legislators have followed that advice.”
After weeks of waiting, no ‘secret maps’ — yet
Among the thousands of pages of records provided by lawmakers, there appears to be a notable omission — a set of secret “concept maps” created to help Republicans in the state House draw their own districts for 2022 and beyond.
Those maps came to light after testimony by Rep. Destin Hall, the Republican in charge of the House redistricting committee, in the January court battle over mapmaking.
On the stand, Hall told a three-judge panel that legislative staffer Dylan Reel had, “on a couple of occasions,” shown him maps on a phone.
“This was not something I sought out to copy,” Hall testified. “It was just simply to give me sort of a frame of reference of where the cities and populations were in a given county. Again, no election data or anything like that. I basically would look at them for a matter of seconds, just to sort of orient my mind where things were.”
Hall told the court he “barely relied upon them at all.” Hall also said he needed the maps to speed up his map-drawing process, which he feared he would not complete by the deadline without the assistance.
“I drew the map I wanted to draw,” Hall said, noting at one point that he “drew nearly all of the State House redistricting plan” himself.
Even if they didn’t use election data, using such maps to draw district lines would violate the pledge by lawmakers to do their redistricting work in public — in full sight of cameras and public terminals to track the maps as they evolved.
“They’ve spent months telling the public and this court that the maps were drawn without use of partisan election data,” Elisabeth Theodore, a partner at Arnold & Porter and lawyer for plaintiffs in the case affiliated with the National Democratic Redistricting Committee, said during the closing arguments of a trial over the maps.
“But no reasonable person could believe that.”
Hall’s testimony revealed the existence of state House maps that “were drawn in secret, behind closed doors, using unknown software and an unknown computer that were lost or destroyed,” Theodore told the court.
Although Hall’s response to the N.C. Watchdog Reporting Network did include multiple map files, none appeared to fit his description of the concept maps. Hall’s office refused to answer multiple questions about whether those concept maps were contained somewhere in the records his office produced.
“Chairman Hall’s testimony on this matter speaks for itself,” David Cobb, Hall’s policy adviser, said this week in an email in response to questions.
Reel, who now works as vice president for state government relations at McGuireWoods Consulting, did not respond to multiple phone calls and emails requesting comment.
Speas concedes that the livestream of the 2021 redistricting process was an improvement over previous cycles. But he stops short of calling it truly transparent.
“I’m absolutely confident that the maps were drawn with a political purpose, in legislative offices, and people then came out and went up to the computers and entered the data,” Speas said.
“That’s what happened. So, I mean, is it transparent? In the sense that people can see what’s happening? Yes. Is it transparent in the sense that people can see what’s happening and understand what’s going on? No.”
For now at least, all three maps — for state House, state Senate and Congress — are a matter of settled law. State courts drew the congressional map after ruling Republicans failed to draw fair districts. That map was the last to lock into place after the U.S. Supreme Court denied an appeal from state Republicans in early March.
The state court ruled that its map will only stand for the 2022 elections, meaning the state legislature will draw the congressional map again for the 2024 elections, which could stand until the next redistricting process in 2031.
The most recent legal maneuvering brings the total the state has spent on map litigation over the last decade to $11.8 million — about $211,000 of which was spent from June 2021 through early March, according to Democratic Rep. Pricey Harrison‘s office.
While there may be some details about the redistricting process state lawmakers haven’t released, there’s no automatic mechanism forcing them to do so, said Martin, the media lawyer.
“The public records law and the open meetings law are statutes that vest a lot of rights in the citizens of North Carolina,” she said. “But they also depend on the citizens of North Carolina to pursue them and test their limits — and to push back.”
This story was jointly reported and edited by Laura Lee, Frank Taylor and Jordan Wilkie of Carolina Public Press; Sara Coello of The Charlotte Observer; Tyler Dukes, Lucille Sherman and Jordan Schrader of The News & Observer; Nick Ochsner of WBTV; Michael Praats of WECT; Travis Fain and Ali Ingersoll of WRAL; and Jason deBruyn of WUNC.