Publisher's note: This post appears here courtesy of the Carolina Journal, and written by Mitch Kokai.
Republican legislative leaders have offered a consistent argument throughout a nearly decade-long legal fight over state election maps. They say Democrats and their allies are using the courts for their own partisan gain.
The recent tiff over a congressional "base" map offers support for the GOP's claim.
To explain why, we'll need to recap some recent N.C. political history.
The story arguably begins in 2010, when Republicans shocked the state's political establishment by winning control of the General Assembly in the November election. Under legislative election maps drawn by Democrats to preserve Democratic power, the GOP secured a veto-proof supermajority in the state Senate and came within four seats of a supermajority in the House.
That landmark election not only gave Republicans full control of the legislative branch for the first time in any North Carolinian's memory. It also gave GOP legislators power over the process of drawing legislative and congressional election maps for the coming decade.
They could have - and, in my opinion, should have - reformed the mapmaking, or redistricting, process. But that's an argument for another day
Instead, Republicans approached redistricting in 2011 largely in the same way as their Democratic predecessors. They wanted to maximize their own party's electoral advantage, as constrained by restrictions set out in federal and state law. Many of those restrictions stemmed from Republican-backed lawsuits challenging Democrats' prior redistricting plans.
Republicans' first set of election maps in 2011 initially secured approval from President Barack Obama's U.S. Justice Department. But the Democratic Party and Democrat-aligned interest groups cried foul. They filed lawsuits in state and federal court. Eventually, federal courts threw out the legislative and congressional maps. Judges ruled that the maps had been tied to unconstitutional racial gerrymandering.
Once court-ordered maps were redrawn, partly by Republican lawmakers and partly by a court-chosen Stanford law professor, Republicans still secured electoral majorities. They maintained control of the General Assembly and a majority of the state's congressional delegation.
So the Democratic team went back to court - now challenging the maps under the claim that "extreme" partisanship had motivated Republican lawmakers. More extreme, one is forced to presume, than the partisan gerrymandering that motivated decades of Democratic maps. (It's worth pointing out that the infamous "snake"-shaped 12th Congressional District
emerged in the 1990s when Democrats wanted to draw a mandated majority-minority district without sacrificing their overall advantage within North Carolina's congressional delegation.)
The U.S. Supreme Court ruled in June that federal courts would no longer take up any cases from North Carolina - or anywhere else - dealing with partisan gerrymandering. The high court's majority labeled partisan gerrymandering a "political question" best left to Congress and the states.
That ruling prompted the Democratic team to shift its attention entirely to state courts. A three-judge panel agreed with Democratic plaintiffs in Common Cause v. Lewis
that partisanship in electoral redistricting could be so extreme that it rendered the resulting maps unconstitutional. The panel then tossed state House and Senate election maps. It ordered lawmakers to draw a new set.
The Republican-led General Assembly complied. But just as the three-judge panel endorsed new legislative maps, it warned of the likelihood that it would strike down the congressional election map. Judges signaled that map was likely to fail because of the same issue of extreme partisan gerrymandering.
Unlike the case involving legislative maps, the three-judge panel offered little guidance about how lawmakers should proceed with a new congressional map. The judges hinted that they liked the process the General Assembly had used to draft new state House and Senate maps. In that process, legislators opened the doors for the entire mapmaking process. They provided live video and audio streams of all proceedings.
And, important for our discussion here, lawmakers adopted "base maps" for the state House and Senate. Those base maps offered legislators a convenient starting point for their work. To avoid accusations that the base maps carried any whiff of "extreme" Republican bias, lawmakers chose maps generated by a political science professor from the University of Michigan. That same professor had testified at length against Republican maps at a trial before the three-judge panel.
As lawmakers started the process of redrawing the congressional map, they repeated the process from the legislative mapmaking effort. They opened the doors for all committee work. They provided live video and audio streams. And they suggested use of a "base map."
Once again, the proposed base had no hint of "extreme" Republican bias. Instead it resulted from a highly publicized bipartisan project. That project had been designed to undercut Republican mapmaking efforts.
The left-of-center activist group Common Cause, working with Duke University's Sanford School of Public Policy, had recruited a bipartisan group of retired N.C. judges to draw an alternate congressional election map in 2016.
"Although we have different political backgrounds, we put that aside to draw districts in a fair and impartial way,"
said Henry Frye in an August 2016 Carolina Journal report
about the alternate map. Frye, a Democrat, had served in the 1990s as the first African-American chief justice of the N.C. Supreme Court,
Frye and colleagues suggested in 2016 that their alternate congressional map was likely to produce six Republican-leaning districts, four Democratic-leaning districts, and three "swing" districts. Ignoring all other factors, then, the map would favor outcomes ranging from a 7-6 Democratic advantage to a 9-4 split favoring the GOP.
The proposal "was not received warmly" by Republican lawmakers, as CJ
reported. "The chairmen of the two legislative redistricting committees ... blasted the proposal."
In contrast, Common Cause praised the bipartisan judicial effort in 2016. "The work done by these former judges shows how a truly impartial redistricting process could be successfully adopted in North Carolina,"
said Bob Phillips, head of Common Cause's N.C. operation.
Yet as Republican mapmakers proposed this month to use results of 2016's "truly impartial redistricting process"
as a starting point for new work, Democrats and their allies balked.
A map once praised for its fairness and impartiality now proved to be unacceptable. Even Common Cause disowned the map. The group declared that it was the result of an intellectual exercise rather than an attempt at real policymaking.
Why the change of heart? Could it be that the Common Cause map might force Democrats to work especially hard to win more than seven of the state's 13 congressional seats? Or that, under normal electoral circumstances, Republicans might be able to maintain a 9-4 advantage (similar to the current 10-3 split)?
Remember that the only reason the courts have any role in this process is judges' determination that Republicans employed "extreme" partisanship in drawing the existing congressional map. Without the "extreme" partisanship, that map would pass constitutional muster. No redrawing would have been required.
It's virtually inconceivable that a new map based on Common Cause's "truly impartial" process could serve as an example of extreme partisan bias. Democrats and their allies might not like the results. But their complaints appear to boil down to this: Republicans who hold majorities in the General Assembly are unwilling to draw the map Democrats would draw.
Rather than righting an unconstitutional wrong, Democrats are trying to maximize their own partisan gains. Democratic U.S. Rep. G.K. Butterfield suggested as much. After the state House voted on a final map, Butterfield told reporters that a "fair" map would make it likely for his party to win six or seven seats.
One can hope that the three-judge panel will see the evidence of partisan bias at work.
Mitch Kokai is senior political analyst at the John Locke Foundation.