North Carolina Is an Endless Source of Entertainment for Redistricting Mavens

When the Supreme Court decided that partisan gerrymandering was non-justiciable in federal courts, Chief Justice Roberts proposed state courts as a possible remedy in some circumstances. The North Carolina judiciary is proving to be a model for implementing this remedy. We’ve been following the state court’s interventions regarding state legislative maps, and this week, the court weighed in on Congressional district maps.

It is North Carolina’s Congressional maps that we outside of North Carolina are most familiar with, from famously noncompact boundaries, the obvious cracking of Democratic-leaning Asheville (and the Gerrymandering 5k), and the recent special election in NC9 in response to the Republican campaign’s election fraud.

In our previous posts, we described the state court findings regarding state legislative districts. Last week, the court weighed in decisively on the state’s Congressional district map. The 2018 Congressional election in North Carolina resulted in Democrats winning three seats with over 70% of the vote and Republicans won the remaining ten with only one (unopposed) Republican winning more than 60%. Last week, a three-judge panel in Wake County Superior Court approved the revised legislative maps and threw out the current Congressional maps. The ruling includes a provision to postpone the 2020 primaries if fair maps are not submitted in timely fashion.

The plaintiff in this case is the National Redistricting Foundation, led by former Attorney General Eric Holder. As with other state judicial anti-gerrymandering efforts, this case relied on finding that gerrymandered maps violated the state constitution. The key in North Carolina’s 1868 constitution is a provision that “[a]ll elections shall be free.”

BREAKING: The Wake County Superior Court has lifted the confidentiality designation on over 100,000 documents from the Hofeller gerrymandering files pertaining to Arizona, Maryland, Mississippi, Missouri, North Carolina, Tennessee, Virginia, and Nassau County, Nueces County and Galveston in Texas. Additional files are still being reviewed.

Latest from North Carolina

In our last epsiode, the North Carolina legislature had been ordered by state courts to redraw their district maps by September 18. While new maps have been filed, and while the mapping process has been open to public scrutiny, the process has not been without controversy. According to the Rock Hill Herald Examiner, it appeared that lawmakers on the House redistricting committee received inappropriate information regarding analysis of a collection of maps created by redistricting researcher and analyst Jowei Chen that Republican lawmakers had adopted as a starting point for the redrawing process. Meanwhile, the state Senate brought a lottery machine to their redistricitng conference room to carry out a random selection of maps from among the ones Chen had created for Senate districts.

Although the process was carried out with unprecedented public scrutiny, concerns persist about both the process and the outcome. A new lawsuit has been filed over the revised maps and there have been new developments in the original case, Common Cause v. Lewis, including the entry of the League of Women Voters of Texas and the Texas Civil Rights Project, demanding public release of the files of the late Republican redistricting strategist Thomas Hofeller.

Stay tuned…

North Carolina!

Earlier this month, the North Carolina state supreme court showed exactly how the National League of Women Voter’s strategy of suing over partisan gerrymanders in state court could work. The court revisited the maps drawn by the Republican-controlled legislature and concluded thus:

In outlawing the partisan maps, the judges relied heavily on a broad reading of Section 10 of the State Constitution, which states in its entirety that “All elections shall be free.” While higher state courts have said little about the clause, they wrote, other rulings have made it clear that citizens express their will at the ballot box and that the state has a compelling interest in keeping the vote fair.

“The free elections clause of the North Carolina constitution guarantees that all elections must be conducted freely and honestly to ascertain, fairly and truthfully, the will of the people,” the judges wrote. But “it is not the free will of the people that is fairly ascertained through extreme partisan gerrymandering. Rather, it is the carefully crafted will of the map drawer that predominates.”

Republicans in the legislature announced that they would not pursue an appeal. The court directed that new maps be drawn in public hearings to be completed by today (September 18). More to come on this as the story continues to develop.

Breaking News! LWVUS Launches Million Dollar Campaign to Ensure Fair Representation for All

With their first ever tele-town hall, The League of Women Voters of the United States announced the launching of a million dollar campaign to address redistricting challenges and to ensure fair representation for all. Called “People Powered Fair Maps,” it is a nationwide effort that will involve every state League. Each state’s situation has been analyzed and will be addressed appropriately. LWVUS will educate and organize to fight gerrymandering by holding leaders accountable.

Strategies will include education and advocacy, organizing and mobilizing, partnership building, ballot initiatives and referendums, state constitutional options, litigation and both state and federal legislative fixes.

At the federal level, the League will be working to restore the federal Voting Rights Act prior to the redistricting cycle in 2021. At the state level, some states will work with their legislatures to bring about changes. Where allowed, states will seek ballot initiatives and referendums.

In South Carolina, we expect to seek a legislative fix. We will be sending action alerts, letters to the editor, op-ed columns for newspapers, training our members in testifying and lobbying, power mapping and supporting legislative drafting. There are 22 states who, like South Carolina, will be seeking legislative fixes.

Some states will work on constitutional initiatives following Pennsylvania’s success with their “free and fair” constitutional wording suggesting that other states may be able to act with a similar state constitutional option.

The League of Women Voters, founded when women got the vote, will celebrate their 100th birthday in 2020. Clearly, they will mark that momentous occasion with another campaign to be hard fought — making sure every vote counts by assuring that redistricting maps are fair and drawn to give people the power to exercise their votes in a meaningful way.

Linda Powers Bilanchone, LWVSC

The Ongoing War Over Who Counts

The one thing we know for sure about the upcoming decennial census is that there will not be a question about the respondent’s citizenship status in 2020. We also know that the Census Bureau had predicted that including the question would have suppressed responses from Latinx residents. Advocates for the question have denied that that was the point of the question, but have argued that information gained would have been worth that cost. Opponents have argued that the question was indeed intended to suppress Latinx responses, thus weakening the voting power of residents of more heavily Latinx districts and favoring whiter, more conservative districts.

But there is strong evidence from documents uncovered last May and June of another motivation for the citizenship question: to change the nature of the populations used to draw Congressional district lines. Currently, Congressional districts are drawn so that district populations are nearly equal, where the population counted is “the whole number of persons in each State” (from the 14th Amendment to the Constitution, which superseded original language that counted slaves as 3/5 of a person). In the 2016 case from Texas, Evenwel v. Abbott, plaintiffs argued that using total population violated the Equal Protection Clause by reducing the voting power of voters in districts with low immigrant populations, compared to voters in districts with higher immigrant populations. The Supreme Court held that states may use total population to draw districts, but did not rule out other options.

The argument made in documents belonging to recently deceased Republican “gerrymandering guru” Thomas Hofeller for the citizenship question is that it would lay the groundwork for a national change to using citizens of voting age as the population for drawing districts, instead of counting everyone. Hofeller argued that such a change would benefit “Republicans and non-Hispanic whites.” He also proposed as a cover story that the question would provide data to aid enforcement of the Voting Rights Act, the excuse provided by the government that was rejected by the Supreme Court in June.

Now comes Alabama and Rep. Mo Brooks (R-AL), suing the Commerce Department and the Census Bureau last year to block counting of undocumented immigrants for apportionment of Congressional representatives to the states, as well as for allocating federal funds. Alabama is projected to lose a seat when representatives are apportioned after the 2020 census. The plaintiffs argue that the wording “persons in each State” was not intended to refer to undocumented immigrants, that the phrase was “understood at both the Founding and in the Reconstruction era to be restricted to aliens who have been lawfully admitted to the body politic,” and thus a “proper” interpretation of the laws governing the census and apportionment would mean counting only “the total of legally present resident population of the United States.” A number of experts have offered contrary understandings of history and judicial precedent.

The district judge hearing the case has expressed concerns that the federal government may not wholeheartedly defend the suit, so has allowed Hispanic and civil rights groups to join the defense, along with 16 other states that stand to lose representatives under the Alabama plan, nine cities and counties, and the U.S. Conference of Mayors. He also denied the government’s motion to dismiss the suit, however. A hearing is scheduled for September 6.

More details here.

Object Lessons in How the Battle for Fair Elections Will Never End

Just when I was beginning to think that the pace of redistricting news would slow enough to start talking about the nuts and bolts of analyzing and developing district maps, these stories broke. As you read, bear in mind Chief Justice Roberts’s opinion in the recent gerrymandering case that one alternative remedy to the federal courts for gerrymandering is to “plac[e] power to draw electoral districts in the hands of independent commissions.”

Michigan’s Independent Commission Under Attack

In the 2018 election, Michigan voters approved an amendment to the Michigan constitution creating a nonpartisan redistricting commission. The Detroit News reports on a new federal court case filed by state Republicans, alleging that restrictions on commission membership in the amendment are “blatantly unconstitutional.” The membership rules prohibit anyone from serving who has been a partisan candidate for office, elected official, political appointee, lobbyist, campaign consultant or officer, or political party officer in the previous six years as well as immediate family members of such. The suit seeks to invalidate the amendment and block its implementation and to revert to the previous method, in which the majority party in the legislature (currently Republican) draws maps, subject to approval of the governor (currently Democratic).

Plaintiffs argue that that the membership requirements unconstitutionally discriminate against affected people based on partisan affiliation. They further assert that, even though the ballot proposal includes a severability clause (which means that the rest of the law should survive even if a portion is overturned in court), the entire law should be overturned because supporters may have believed that the membership requirements were a “vital part” of the proposal.

The lawsuit follows earlier action last May by Republicans in the Michigan Legislature to cut funding for the redistricting commission by 30% and shift the funds from the Department of State to the Legislature.

Wisconsin Republicans Say They Plan to Seek Democratic Governor’s Approval for New Maps

The Wisconsin Examiner reported recently on indications that the Republican-controlled legislature could attempt to implement 2021 district maps without the approval of the state’s Democratic governor. This would be accomplished by implementing the maps via a joint resolution of the Assembly and the Senate. Joint resolutions do not require the governor’s signature. The Wisconsin Supreme Court has already ruled that implementing districts via resolution is unconstitutional, but the court is now controlled by conservative justices who could consider overturning that precedent. The Examiner article cites sources form both sides of the redistricting dispute. The Milwaukee Journal Sentinel reports in a follow-up article that Republican lawmakers dispute the Examiner story and claim that they are not planning to avoid gubernatorial review.

So What the Heck Just Happened?

On June 27, the last day of the 2018–2019 session, the Supreme Court announced two rulings affecting matters of concern to us: one to do with partisan gerrymandering and the other to do with the proposed citizenship question on the upcoming census.

Redistricting

In Vieth v. Jubelirer (2004), the Supreme Court split 4-4 on the question of whether partisan gerrymandering was justiciable, i.e., whether there was a role for the courts at all to intervene in cases of partisan gerrymandering. The court did not rule on that case at the time, but the partial dissent by Justice Kennedy left open the possibility for a role for the courts if an appropriate standard could be developed to apply in such cases. (Such standards have evolved for racial gerrymandering since the Voting Rights Act of 1965.) Since then, much of the research and advocacy regarding redistricting has been essentially to convince Justice Kennedy that such a standard was possible. With Justice Kennedy’s retirement last year, the question of justiciability has been on shakier ground. The 4-4 split remained among the other eight justices, and it was not yet clear where Justice Kavanaugh would come down.

Now we know. In Rucho v. Common Cause et al., the North Carolina (and Maryland) redistricting case, a 5-4 majority of the court, led by Chief Justice Roberts, ruled that partisan gerrymandering was not justiciable by federal courts. The Chief Justice’s opinion ruled that, while partisan gerrymandering poses a significant threat to election fairness, it was not possible to develop an applicable standard for assessing the extent of partisan gerrymandering. This, despite the fact that a number of lower courts did find that several proposed standards and measures provided clear evidence that it had taken place.

The Chief Justice’s opinion suggested that there are other routes to pursue to mitigate the danger of runaway partisan gerrymandering. His opinion cites successful state court challenges—such as in Pennsylvania—and the creation of independent redistricting commissions via citizen initiatives. That is a reversal of Roberts’s earlier view, expressed in his dissent in the 2014 case, Arizona State Legislature v. Arizona Independent Redistricting Commission. In that case, Roberts decried Arizona’s initiative-established independent commission as an unconstitutional userpation of legislative authority to determine the “Times, Places and Manner of holding Elections,” as specified in the Constitution. Roberts also failed to note the recent attempts by the Michigan legislature to undermine the voter-approved independent commission in that state. Roberts also noted the possibility of Congressional action, without mentioning that this year’s HR1, the For the People Act, which requires states to implement independent commissions, has passed the House, but is unlikely to be considered in the Senate.

In South Carolina and 23 other states, there is no process for bringing citizen initiatives to a vote. So absent Congressional action, our next realistic recourse is legislative.

The Census

Chief Justice Roberts was also the author of the majority opinion that the administration’s attempt to add a citizenship question to the 2020 Census was unconstitutional because the rationale offered for the question (that it was needed to aid enforcing the Voting Rights Act of 1965) was “contrived.” The opinion did seem to leave open the possibility that the administration could return to the lower court to have the decision reconsidered with a different justification, and since then, we’ve been on a wild ride as the president and the Justice Department attorneys on the case tried to determine how to proceed.

At first, the Justice Department announced that the administration would not pursue the question. Then President Trump tweeted that the administration would indeed continue to pursue adding the question. The administration attorneys appeared before the lower court judge and admitted that they did not have official guidance. The judge demanded a decision in short order on how the administration would proceed. Attorneys responded that they would be pursuing the question, but it was certainly not clear how any new justification could be considered “not contrived,” especially in light of the recent discovery of documents in North Carolina proposing the question as a way of enhancing the voting power of “Republicans and non-Hispanic whites.” The administration announced that they would be replacing the entire team of attorneys. The judge denied the administration’s request. The Census forms were sent to the printer and printing commenced. Finally, on Thursday, President Trump and Attorney General Barr announced that they would not pursue the question for the 2020 Census, but that they would gather the information from other sources and they would revisit the question for the 2030 Census.

So the 2020 Census will not have the citizenship question. But it is not yet clear how much damage the debate may have done to the response rate. Our task going forward has to be to actively promote responding, especially in areas that might have been vulnerable to intimidation.