Redistricting: It’s not about the voters

Jul. 13, 2013 @ 12:39 PM

In an off year, Monday’s decision upholding the state’s 2011 redistricting plan would have run as the headline story for most dailies in North Carolina.

It was still page one, certainly, but the latest chapter of our decennial redistricting litigation couldn’t compete with a legislature mired in controversy and scrambling to meet deadlines before adjourning for the summer.

Instead, more Moral Monday arrests and continuing fallout from the anti-Sharia anti-abortion sneak attack led the news of the day.

Not surprisingly, the legislators who won felt vindicated and proclaimed victory. “With the unanimous decision, I can’t imagine they have any grounds at all to appeal,” Sen. Bob Rucho, a named defendant in the case, told WRAL. “When we drew fair and legal district maps, we followed the letter of the law. That’s been the intent since day one.”

And the challengers announced that the war was far from over and that they were in it for the long haul.

“We believe that there are numerous issues that will need to be resolved by higher courts,” representatives of the plaintiffs said in a statement.

But here’s the rub.

Those growing Moral Monday numbers and the increasingly vocal women’s choice protests are the product of what is being challenged in the redistricting case.

“It’s a direct line,” said Justin Levitt, a redistricting expert and professor at Loyola Law School in Los Angeles. “Some of the protests have to do with the substance of legislators’ action – that people don’t like what they’re doing – but just as much of it has to do with the fact that they feel like this legislature doesn’t fairly represent them. And that’s exactly what this case is about.”

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North Carolina has a long history of court challenges to redistricting plans, dating to the 1990s when Shaw v. Reno, a case originating here, wound its way to the U.S. Supreme Court. It was in Shaw that then-Justice Sandra Day O’Connor warned states about the dangers of creating apartheid-like districts.

“When a district obviously is created solely to effectuate the perceived common interests of one racial group, elected officials are more likely to believe that their primary obligation is to represent only the members of that group, rather than their constituency as a whole,” O’Connor wrote. “This is altogether antithetical to our system of representative democracy.”

The cases decided by the three-judge panel here Monday — Dickson v. Rucho and North Carolina State Conference of Branches of the NAACP v. North Carolina — are likely to have the same judicial trajectory, according to experts, and the essence of the claims in those cases is remarkably similar to those in Shaw, but with a twist.

Here, the parties challenging the redistricting plans contend that the legislature used race too often, when it wasn’t necessary, and too much, packing black voters into districts until their numbers reached the 50 percent mark, even though the African-American population there, while still in the minority, had already been exerting political influence and electing their candidates of choice.

That claim may find some friendly voices if it lands before the current U.S. Supreme Court, where a number of justices have expressed concern about the continued use of racial preferences in education and other areas.

In Fisher v. University of Texas, for example – a case concerning that institution’s affirmative action policy – the court set a high bar for the use of race in admissions. Writing for the majority and discussing the hurdles faced in trying to sustain a race-based classification, Justice Anthony Kennedy — the court’s swing-vote in many social policy cases — said that “strict scrutiny imposes on the university the ultimate burden of demonstrating, before turning to racial classifications, that available, workable race-neutral alternatives do not suffice.”

And in the recent Voting Rights Act case, Shelby County v. Holder, Chief Justice John Roberts reiterated his opinion, first voiced in the Northwest Austin Municipal Util. Dist. No. One v. Holder decision four years earlier, that when it came to matters of race, “things had changed in the South.”

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The challengers in Dickson and NAACP assert in a number of claims (some dismissed in an earlier ruling) that in 2011 the General Assembly redrew voting districts in ways that violated the state and U.S. constitutions. Chief among those claims is the contention that lawmakers created majority-minority districts (where the black voting age population is greater than 50 percent) wherever possible and packed African-American voters into those districts when federal law didn’t require that.

But the state defendants claim that they had to create those districts in order to provide black voters with a roughly proportional and equal opportunity to elect their candidates and comply with the Voting Rights Act.

“We do not think it’s a racial gerrymander to draw a 50 percent district,” said Tom Farr, an attorney representing the lawmakers, during arguments in February. “It’s not a racial gerrymander to draw districts with a consciousness of race. If that were true, all of these districts would be racial gerrymanders.”

But plaintiffs countered that drawing such a district is required only to create voting opportunity where it does not already exist — where, as the U.S. Supreme Court said in the last go-round of North Carolina redistricting litigation, in Bartlett v. Strickland, the majority is voting “sufficiently as a bloc . . . to defeat the minority’s preferred candidate.”

That simply was not the case in many of the districts redrawn by the Republican-controlled legislature in 2011, plaintiffs’ attorneys Edwin Speas and Anita Earls argued in February. Instead of creating minority opportunity where it did not exist, the mapmakers drew districts where opportunity had been flourishing — where black voters, though still in the minority, had been consistently electing their candidates of choice — and simply added more, pulling black voters across precinct, district and county lines to reach that 50 percent mark and beyond, up as high as 57 percent, and leaving whiter districts in their wake.

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In its ruling on Monday, the three-judge panel largely sided with the state, finding that the legislature was justified in creating the 2011 districts. They found that lawmakers were right to create districts in order to avoid liability under the Voting Rights Act and adopted a bright line formula for how those districts should be populated — saying that wherever the state had to draw a Voting Rights Act district, it had to fill that district with enough black voters to give that group a “50 percent plus one” majority.

That ruling, some experts say, reflects a misinterpretation of the law.

“To go out and aggressively create ‘50 percent plus’ districts wherever you can, using the defense of being afraid of Section 2 challenges later, is nonsense,” Washington, D.C.- based redistricting attorney Jeff Wice said.

“You need to look at this more locally, more realistically. Where you have high enough levels of polarized voting and minority-supported candidates cannot win, then you need to use the VRA as an effective tool. But where you don’t have these levels of polarized voting, you don’t necessarily need the VRA.”

“Lots of people think that the VRA requires the creation of majority-minority districts, whenever possible,” Justin Levitt added. “That’s not true.”

Levitt said that liability under the Act arises if you have a group that is large and votes in a way that differs from the majority, such that if you broke it up by redistricting the group would lose elections.

“If you have a really small minority population, it doesn’t matter how you draw the districts; they’re still not going to be able elect their candidates of choice,” he said. “But the claim here is that you’ve got a bunch of big groups with which, at 40 percent, 42 percent, the African-American population isn’t losing elections, so there’s no need to draw a district with more African-Americans,” he said. “There’s no need to pack it.”

Here, Levitt said, the court confused the question of whether a group was big enough for VRA liability with how big the district should be redrawn if a remedy is needed.

“The court opinion repeatedly conflates this ‘is the group big enough’ 50-percent rule, with a bright line across-the-board remedy, saying 50 percent is the magic number there,” he said.

“So what the court says is that, if these districts have to be drawn with attention to race anyway, then the legislature can basically overcorrect in order to have a nice bright line. In my mind, that is using race when it’s not necessary, and the courts keep saying – including courts out of North Carolina – that you can’t use race when it’s not necessary.”

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It’s no small irony that, with growing voter discontent playing out on Jones Street and elsewhere across the state, the court opens its opinion with an ode to our lawmakers’ commitment to self-survival, above all else.

“The political party controlling the General Assembly hopes, through redistricting legislation, to apportion the citizens of North Carolina in a manner that will secure the prevailing party’s political gain for at least another decade,” the judges wrote. Not in a manner that fairly apportions voters, or honors the sanctity of the vote, but one that ensures re-election.

Seeking to wrest control of that power from the legislature and break the endless cycle of redistricting litigation that’s persisted here for more than 30 years, a bipartisan group filed House Bill 606 in April, a bill that would vest some responsibility for redistricting in an independent advisory commission selected by members of both parties, with ultimate approval authority remaining with the legislature.

At the time, the bill had the support of a majority of House members, and widespread support among the public.

But Senate leaders, perhaps still heady over the Republican ascent to a super-majority, balked.

“We’ve waited 140 years to have this (redistricting power),” said Rules Committee chair Sen. Tom Apodaca. “I’m not ready to give away what we fought so hard to get.”

With the court’s imprimatur on the 2011 plans, it’s likely Apodaca will get his way.

Sharon McCloskey is the courts and law reporter at N.C. Policy Watch. This article was originally published on the PolicyWatch website.