Publisher's note: The author of this post is Mitch Kokai, who is senior political analyst for the Carolina Journal, John Hood Publisher.
Listen to a common argument from the political left, and you're likely to believe that North Carolina's Republican-led General Assembly has spent much of this decade clearly and purposely drawing unconstitutional election maps. They've used those maps, the argument contends, to thwart the will of the people.
In contrast to the spin, the facts spell out a different picture. The distinction between talking points and truth could help determine how state elections play out this year and in the future. More on those facts in a moment.
First, the notion of a rogue General Assembly thumbing its collective nose at the Constitution helps drive a sense of urgency among left-leaning partisans. They emphasize the need to replace current state election maps in time for this year's congressional and legislative races.
Failing to redraw the congressional map this year would lead to "extraordinarily high" costs, according to lawyers with the Campaign Legal Center, a group representing challengers of Republican-drawn maps in both North Carolina and Wisconsin. Without a new N.C. map, "voters will have voted in four consecutive congressional elections under unconstitutional maps,"
the Center argued in a filing with the U.S. Supreme Court.
Left-of-center politicians and pundits throughout this state echo that message. It suggests that courts have allowed GOP lawmakers to get away with some nefarious scheme since 2012. That was the first year in which N.C. voters cast ballots in districts designed by Republicans.
A timeline of legal action in North Carolina's ongoing redistricting saga reveals a much less sinister story.
As required by the N.C. Constitution and federal court guidance, the GOP-led General Assembly used updated census data in 2011 to draw new maps for N.C. House and Senate elections, along with a third map to determine the state's 13 members of the state's U.S. House delegation.
Had those maps been clearly unconstitutional on their face, it's almost certain that either the Obama administration's Justice Department or a state or federal court would have struck them down before voters used them the following year in 2012. Courts also would have intervened before the 2012 election if judges had found credible evidence that lawmakers purposely attempted to violate the Constitution when drawing their maps.
That didn't happen.
Instead, the Justice Department OK'd all three maps. And the maps survived an initial court challenge. A state three-judge panel - featuring two Democrats - green-lighted the districts. The N.C. Supreme Court, while quibbling with some of the trial panel's reasoning, agreed that all three maps met constitutional requirements.
The U.S. Supreme Court later threw out the state Supreme Court's decision. But the justices in Washington, D.C., felt no need to step in to halt or alter state elections in 2012 or 2014. Instead the high court called on N.C. justices to revisit their initial decision in light of a new federal redistricting ruling from Alabama. The state Supreme Court followed that order and upheld its initial ruling supporting the contested maps.
So much for clear evidence of a purposeful campaign among Republican legislators to thwart the U.S. Constitution. If it existed, no judge saw fit to act upon it for two complete election cycles.
It's true that later federal lawsuits eventually led courts to throw out all three 2011 maps ... in 2016.
Yes, halfway through the decade and less than two years ago, legislative critics found federal judges willing to accept their arguments against the General Assembly's redistricting handiwork.
But that outcome wasn't clear when lawmakers approved their maps. Moreover, the constitutional case against the maps never has been as clear-cut as left-of-center partisans imply.
In the case of the 2011 congressional map tossed out
because of concerns involving racial gerrymandering, a three-judge bloc on the U.S. Supreme Court chastised its colleagues. The dissenters in the case called out colleagues for ignoring a previous court precedent to rule against N.C. lawmakers.
"A precedent of this Court should not be treated like a disposable household item - say, a paper plate or napkin - to be used once and then tossed in the trash,"
Justice Samuel Alito wrote.
Alito and colleagues Anthony Kennedy and Chief Justice John Roberts also took issue with their colleagues' decision to reject the 2011 congressional map's 12th District. "The State offered strong and coherent evidence, ... and the evidence supporting the District Court's contrary finding is weak and manifestly inadequate."
If the constitutional violation was clear, no one told these three esteemed legal minds.
Unlike the congressional case, the U.S. Supreme Court agreed without dissent - in 2017 - to throw out 2011 state House and Senate maps
because of racial gerrymandering.
The legislature's critics often cite the high court's unanimity in that case. The critics seldom note that the high court also spoke as one when it criticized the trial court at the same time in the same case. Justices upbraided the three-judge panel for ordering special 2017 legislative elections without offering an adequate legal basis.
The trial court used "minimal reasoning" and addressed the proper remedy in the case "in only the most cursory fashion." Supreme Court justices concluded that "we cannot have confidence that the court adequately grappled with the interests on both sides of the remedial question before us."
Had the General Assembly's maps been clearly and purposely designed to defy the Constitution, it's unlikely the U.S. Supreme Court would have aimed such harsh language at the judges who ruled against lawmakers. Instead of bemoaning the prospects of a fourth straight "unconstitutional" election, the high court noted great concern about the trial court's rush to jettison North Carolina's traditional electoral process.
Now lawmakers hope the U.S. Supreme Court will exhibit similar skepticism about trial court actions in recent weeks. As North Carolina's 2018 campaign filing season approaches, one three-judge panel ordered an outside "special master
" to draw legislative election districts before declaring the General Assembly's existing districts invalid. A second three-judge panel proposed naming another special master
to draw an alternative congressional map at the same time as lawmakers addressed the same task.
In both cases, the trial courts acted in irregular ways that step on North Carolina's longstanding electoral redistricting process. If the Supreme Court agrees that those irregular actions will help address an "extraordinary" problem that has plagued North Carolina elections since 2012, then new maps are likely this year.
On the other hand, the Supreme Court could recognize that today's conflict dates back to court decisions handed down less than two years ago. Justices might recognize that state lawmakers always have responded relatively quickly once the highest court in the land has handed down a final decision on how to proceed.
Placed in proper context, the trial judges' rush to rewrite North Carolina's electoral landscape might raise some red flags.