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Judges, Academics Tackle Redistricting Reform

Goal is to push legislature to adopt independent, nonpartisan process while drawing own set of maps

Former state Supreme Court Justice Bob Orr, at left, and former Chief Justice Henry Frye discuss redistricting reform at a Duke University forum. (CJ Photo by Dan Way)
Former state Supreme Court Justice Bob Orr, at left, and former Chief Justice Henry Frye discuss redistricting reform at a Duke University forum. (CJ Photo by Dan Way)

North Carolina’s constantly shifting population and demographics, and the sour taste both Democrats and Republicans have experienced as a minority party with no meaningful role in the legislative redistricting process, could offer strong incentives to transform redistricting to a nonpartisan, independent commission model, a group of academics, analysts, and retired judges said April 21 at a Duke University forum.

The group is exploring redistricting reform that would put North Carolina on the same path as several other states that have minimized the role of partisan politics in the drawing of legislative and congressional district boundaries. The group also will draft its own map based on the principles the members articulate.

“We may fail, but we’re going to try, and I think that’s the kind of thing that we should be doing,” said former state Supreme Court Chief Justice Henry Frye.

“What’s different is that we do have a time when members of both parties remember what it was like to be without power, and that’s important” in hoping to convince them to adopt a less-politicized system, said Bob Phillips, executive director of Common Cause North Carolina.

Phillips said legislative Democrats “couldn’t see any reason” to adopt independent redistricting procedures when they were in the majority and Common Cause (along with other organizations, including the John Locke Foundation) raised the issue. Then the Republicans gained control of the General Assembly. “Now you have the majority party that remembers what it’s like” to be powerless in drawing legislative boundaries.

North Carolina’s rapid demographic shifts offer no guarantee that a district drawn to favor a current majority will remain that way for long, said Tom Ross, former president of the UNC system. Ross, now a fellow at Duke’s Sanford School of Public Policy, said the dynamics of the state allow an opportunity to adopt a process that creates more competitive districts and spurs voter interest.

The Sanford School and Common Cause are leading the effort involving 10 retired judges. The April 21 daylong event was the first the group plans to host.

“The main purpose is really educational,” to help the public better understand how redistricting occurs, and various methods to accomplish it, Ross said. “I think we are at a time in our country where this is an issue that people are really concerned about. … There is a sharp partisanship that I think many voters are tired of.”

A better process of redistricting that does not take partisan politics into account might narrow that divide, he said.

“We’ve got current and former governors on both sides of the political aisle who support this,” Ross said. Many municipal, county, and state office holders are supportive. “This is something that crosses party lines.”

Iowa’s independent redistricting commission often is invoked as a model of reform, but its process doesn’t face the same potential for race-based litigation as North Carolina and other Southern states that must satisfy the federal Voting Rights Act. Even an independent commission would be challenged to draw legislative boundaries that would survive in court.

“We’ve got to have some sort of clarity on the voting rights and race issue” regardless of who is redrawing legislative districts, said retired state Supreme Court Justice Bob Orr. “We need to know exactly where that parameter fits into it.”

Orr also said it would be beneficial for the U.S. Supreme Court to state that “overly partisan gerrymandering … violates the Constitution. As long as that’s a viable option in drawing the districts, you’re going to see the kind of safe districts which create [the] polarized voting and polarized attitude that we have.”

Although he supports the independent commission approach, Orr said, “The state constitution does at this point require the legislature to draw the districts,” so any reforms would have to address that issue. He believes a constitutional amendment setting forth inviolate criteria for an independent commission or other reform would be essential.

Orr said that he, former Chief Justice Sarah Parker, and former Chief Justice I. Beverly Lake, all members of the Duke study group, were on the state Supreme Court during the 2002 Stephenson v. Bartlett redistricting litigation over state constitutional provisions to keep counties whole when drawing state legislative lines.

“While it was fascinating in the context of legal and constitutional issues, it was a brutal experience,” Orr said. The time and political pressures the court is put under when deciding momentous redistricting lawsuits are “unhealthy, so anything we can do to improve the system is a plus.”

Unlike earlier redistricting, gerrymandering is made easier today due to the sophistication of technology and computer graphics.

“You can draw any kind of district that suits your particular needs, partisan, whatever,” Orr said. “Now it’s reached such a level of sophistication, we see this increase in state seats that are safe” for both parties. The majority party always gets the lion’s share, even though North Carolina is a more politically balanced state with the ranks of unaffiliated voters growing fast than either Democrats or Republicans.

It’s unlikely the use of an independent commission would remove politics and lawsuits from the system completely, since political players would try to stack the panels with friendly members.

“I don’t know if there’s any process I’ve seen in the world of anything in which there aren’t some unhappy people,” Ross said, but he believes there would be far less litigation with an independent commission.

While one goal of an independent commission would be to promote voter participation in elections, Ross admits the only evidence of higher turnout in such a system is anecdotal.

“It’s not an easy piece of research to get your arms around” because redistricting occurs only every 10 years, after the federal census, making exact voter comparisons difficult, he said.