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The battle over redistricting in North Carolina continued Friday when a three-judge panel consolidated two lawsuits filed by Democrats and civic advocacy groups. The judges also set Jan. 12 as the date when they’ll hear the Republicans’ motion to dismiss the combined suit entirely.

This is the latest in the redistricting process, which is often fraught with debate over the state’s voting boundaries. At its heart, though, is the essence of representation — the very basic question about where voters cast ballots and, ultimately, which party has majority control of North Carolina’s legislature and represents the state in Congress.

Last July, the N.C. General Assembly passed redistricting plans for the state’s Congressional, state Senate and state House voting districts. By rule, lawmakers rework the maps every ten years in the first legislative session after the release of the latest U.S. census data, and the new maps are often perceived as favoring the party in power.

Complaints allege new districts isolate African Americans

This year was no exception, as Democrats immediately protested the plans approved by the Republican majority, citing violations of the North Carolina State and U.S. constitutions.

The chief complaint of the Democrats, as outlined in a Nov. 3 lawsuit submitted by current and former lawmakers and voters [PDF], was that the Republicans engaged in a practice called “packing.” The lawsuit alleges that by splitting counties and precincts unnecessarily in the new plans, Republicans created favorable electoral conditions by isolating a large percentage of African Americans into a few districts. This essentially shifted Democratic voters out of competitive districts and gave Republicans a numerical advantage where there previously had been none.

Additionally, Democrats claim that complex precinct splits will cause confusion and error in the voting process. In one extreme case, a single street in Durham undergoes four precinct changes within six city blocks.

The North Carolina NAACP, the League of Women Voters of North Carolina, other civic advocacy groups and concerned citizens also filed a lawsuit, on Nov. 4, with similar complaints. [PDF]

Each lawsuit contains roughly 100 pages filled with specific examples of alleged packing and gerrymandering. Anita Early, an attorney for the advocacy groups, said the two were consolidated Friday without opposition from the Republicans.

Now that the suits are combined, a three-judge panel composed of Wake County’s Paul Ridgeway, Halifax County’s Alma Hinton, and Iredell County’s Joseph Crosswhite will hear the case sometime next year. [DOC] Edwin Speas, principle counsel for the Democrats, hoped that Friday’s hearing would eventually lead to a more concrete timeline for the future of the case.

“The plaintiffs in both cases have asked for the court to put this case on an expedited schedule and have it tried by early February,” he said. “The defendants in both cases have advocated a much more extended schedule, looking for a trial sometime in…late fall.”

No trial date has been set, but a more accurate timeline will be established after the Republican’s motion to dismiss is heard on Jan. 12.

When the first lawsuit was filed, Senate Minority Leader Martin Nesbitt, from Asheville, and House Minority Leader Joe Hackney, from Chapel Hill, issued a joint statement claiming that the new legislation “re-segregates North Carolina as much as possible” and that the lawmakers responsible “hid behind federal law to justify it.”

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In response, Republicans including Sen. Tom Apodaca, of Hendersonville, and Sen. Jim Davis, of Franklin, pointed out that the U.S. Department of Justice “pre-cleared” the plan on Sept. 2 under Section 5 of the Voting Rights Act.

Passed in 1965 by President Lyndon B. Johnson, the Voting Rights Act was designed to outlaw discrimination in the country’s local, state and federal elections. Section 5 of the Act was specifically written to monitor nine entire southern states and counties in several others, including North Carolina, whose voting practices had disenfranchised African-American voters.

County splitting in Western North Carolina

Today, preclearance by the Justice Department is still required in North Carolina before any voting change can be undertaken in certain N.C. counties.

However, a report issued by the U.S. Commission on Civil Rights in 2006 found that while the Department of Justice raised objections in 14 percent of cases in the first ten years of the Voting Rights Act, that rate had fallen to below one percent between 1982 and 2004.

It was no surprise to Democrats, then, that this year’s maps went through without objection.

“When the Justice Department approved the maps, they only looked at one small issue of the law, and that is what we call Jim Crow,” said Rev. William Barber, president of the North Carolina NAACP. “And the way they examine it is, ‘Did African Americans lose any seats?’ Well no, we didn’t.

“But we’re not dealing with Jim Crow,” he continued. “We’re dealing with James Crow, Esquire. He knows he can’t deny the right to vote, but he can undermine it, suppress it and segregate it. And what James Crow, Esquire, does is surgically, block by block, cut out the heart of African American political power.”

The potential effects of county splitting can be seen in Western North Carolina’s 10th and 11th Congressional districts.

Changes to the 10th and 11th Congressional districts in Western North Carolina are tied up in court. Click to view full-size image.

The map shows how District 10 has been extended into Buncombe County to encompass Asheville. Democratic lawmakers allege that this change was a tactic to make District 11 turn Republican in the next election.

“Never in the history of the State has a redistricting plan separated Asheville from the Mountains,” their lawsuit reads.

Indeed, a study undertaken by the independent North Carolina FreeEnterprise Foundation shows that the change in District 11 would put U.S. Rep. Heath Shuler’s congressional seat in jeopardy for the Democrats. Using Foundation numbers from the 2008 election, the percentage of voters who chose the Republican presidential candidate, John McCain, would rise from 52.1 percent to 58 percent. Without Asheville, registered Republicans in District 11 would outnumber registered Democrats by a single percentage point.

In all, Republicans currently hold six of North Carolina’s 13 congressional seats. According to the Foundation, the new map would give them numerical advantages in ten of the 13 seats. Along with Shuler, Democratic U.S. Reps. Larry Kissell (District 8), Mike McIntyre (7) and Brad Miller (13) would all find themselves in a dogfight in the 2012 election, observers say.

Changes in representation approved, debated

But according to Democrats and the advocacy groups supporting them, the congressional gerrymandering is only the tip of the iceberg. In the state Senate and House plans, there are similar oddities among the split precincts (the plan splits 19 Senate and 49 House precincts, respectively).

“Perhaps most egregiously,” the Democrats’ lawsuit reads, “the General Assembly has isolated the state’s Black citizens in a small number of districts.”

Under the new plan, half of the state’s 2.2 million African Americans are “packed” into just 10 Senate districts, or 20 percent of the whole. According to the lawsuits, the same percentage is packed into 25 of the 120 House districts.

The lawsuits allege that the aim is to nullify African Americans’ votes by containing those voters in the fewest districts possible, thereby freeing other precincts for Republican wins.

Both lawsuits contend both that this practice is in violation of the Voting Rights Act, which mandates that county and precinct boundaries must be respected where possible, and that it also goes against the equal protection guarantees in the state and federal Constitution.

The chart below, taken from the NAACP lawsuit, shows the change in African-American voter representation in Senate districts across the state.

Chart from the N.C. State Conference of Branches of the NAACP, et al., plaintiffs, vs. the state of North Carolina, et al., defendants. It shows the change in African-American voter representation in Senate districts across the state. Click to view full-size image.

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Initially, it’s noticeable that nine districts have African American representation above 50 percent compared to just one previously. Indeed, Republicans have seized on that number.

“It’s unfathomable to me why some of these groups are opposed to these maps when clearly they give unprecedented opportunity for African-Americans to become members of the North Carolina General Assembly,” Rep. Nelson Dollar, a Republican from Raleigh and a co-chairman of the redistricting committee, told The Charlotte Observer when the NAACP lawsuit was filed.

But Democrats and civic leaders say the more telling number is how many districts were left with African American representation above 30 percent. That number decreased from 16 to 10 in the redistricting plan.

“What they’ve done is perverted the Voting Rights Act,” Barber, with the NAACP, said. “They’re saying, ‘Okay, we’re going to guarantee you elections in your district with a majority of African Americans.’ But underneath that, they’re doing it so they can cut 10 to 15 percent of African Americans out of another district where they might join with progressive whites to elect candidates of their choice.

“You may add a seat over there,” he said, “but you undermine the power of fusion politics over here.”

Brent Laurenz, the director of outreach at the N.C. Center for Voter Education, a nonpartisan and nonprofit organization, said that redistricting is often problematic. He pointed to 2002’s Stephenson v. Bartlett case, when the N.C. Supreme Court declared the 2001 redistricting plans enacted by Democrats unconstitutional after the last census.

“It’s just a natural inclination of a party in power to draw districts that benefit their party,” he said. The Center for Voter Education, he said, would like to see an independent commission of non-elected officials draw up the maps without regard to partisan data like race or party affiliation.

In the meantime, in order to avoid delaying the candidate filing date or the start of primaries in the 2012 elections, most guess the trial will occur within three months. It could also delay the start of the next session of the N.C. General Assembly, as Carolina Public Press previously reported. In 2002, the Stephenson case delayed the primaries from May to September, and cut the general election campaign time from six months to two.

“I expect it in the next month or two,” Hendersonville’s Apodaca said of the final decision. “It’s going to be very hard for a state court to overrule the Department of Justice.”

Shane Ryan

Shane Ryan is a contributing reporter for Carolina Public Press. Contact him at shane.spr8@gmail.com.

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