News: CJ Exclusives

Rights trump politics in redistricting case, judges say

And yet judges noted many occasions partisan advantage was cited in court arguments

Anita Earls, an attorney for the Southern Coalition for Social Justice, speaks with reporters July 27 outside the U.S. courthouse in Greensboro. (CJ photo by Dan Way)
Anita Earls, an attorney for the Southern Coalition for Social Justice, speaks with reporters July 27 outside the U.S. courthouse in Greensboro. (CJ photo by Dan Way)

GREENSBORO — The rights of people, rather than political considerations, must be the primary focus in fixing 28 unconstitutionally drawn state legislative districts.

That’s the message U.S. appeals court Judge James Wynn delivered Thursday during a hearing in the Covington v. North Carolina lawsuit involving racially gerrymandered election maps.

Yet political implications and posturing took place throughout the three-hour hearing in North Carolina’s U.S. Middle District Court.

Plaintiffs’ attorney Edwin Speas argued that Republicans are pulling out all stops to avoid a court order to create new district boundaries. Gov. Roy Cooper ordered lawmakers into special session to create new maps, and “they thumbed their nose at him.”

Phil Strach, one of the state’s attorneys, disputed Speas’ characterization, and got a nod from Wynn.

“I know that to be political,” Wynn — who sits on the 4th Circuit — said of Cooper’s call for a special legislative session to run concurrently with the regular legislative session.

Wynn, along with U.S. District Court judges Catherine Eagles and Thomas Schroeder, comprise a three-judge panel hearing the case. The panel ruled the General Assembly relied too heavily on race, though demonstrating no ill intent, when drawing the district boundaries after the 2010 Census.

The U.S. Supreme Court affirmed their decision, but returned the case to the lower court. The justices said the trial court must justify the disruption a special midterm election would cause or find a less intrusive solution.

In another item with political overtones, the judges were caught off guard when informed by Michael McKnight, one of the state’s attorneys, that the newly created Bipartisan State Board of Elections and Ethics Enforcement cannot function because it has no members, and there is no indication when they would be appointed.

That creates major hurdles to holding a special legislative election this year when municipal elections are scheduled, McKnight said.

McKnight told Eagles Cooper has the duty to appoint the members, but he has not.

The governor sued to overturn legislation creating the new state elections board, and lost. An appeal to the state Supreme Court is pending. In the meantime, Cooper has refused to appoint members to the state agency, who, in turn, appoint members to county election boards.

At least 10 county election boards with vacancies cannot function because they lack the  three members needed to constitute a quorum under the new four-member arrangement. In counties with three members all votes must be unanimous. Because of vacancies, and Cooper’s inaction, some county boards could not handle municipal election voter and candidate challenges before Wednesday’s deadline.

“What is the board?” Wynn asked Kim Westbrook Strach, executive director of the new board, during her testimony. “What are you executive director of?”

“Of a board that doesn’t exist,” Strach said. Then she changed her answer to say she oversees the agency.

State Rep. Grier Martin, D-Wake, testified at length about problems Democrats face with no new electoral maps. He is the House Democratic Conference chairman whose responsibilities include identifying and recruiting candidates, and “all things campaign related.”

“It makes my life very difficult,” Martin said. He testified that the conference chairman position is a political job “often impossible to completely detach policy from politics,” but he was not letting political considerations override policy in supporting the lawsuit or pushing for a special election.

Martin said he has advised highly qualified Democratic candidates not to file for office prematurely because Republicans, “with the swipe of a pen or click of a keyboard,” would put those candidates into districts that would be more difficult to win when drawing new maps.

Getting new maps immediately would help Democrats decide where to run so they could begin to meet voters, and improve their odds of winning enough seats to end Republicans’ veto-proof supermajorities, Martin told reporters.

Milo Pyne of Durham, a plaintiff in the case, testified he is annoyed that the lack of maps is affecting Democratic fundraising. Pyne, a Durham County delegate to the Democratic Party State Executive Committee, said he is active in Durham County organizations with “a progressive political point of view.”

At a recent Democratic event “donors seemed unwilling to commit additional funds,” Pyne said, blaming that on the lack of new electoral maps.

North Carolina’s General Assembly “may be the most illegally constituted [legislature] in the history of the United States,” Speas said during his closing argument. It could be argued the General Assembly includes “usurpers” passing unlawful acts because some districts were declared unconstitutional last year, he said.

“It’s a very strong argument,” plaintiffs attorney Anita Earls said, telling the judges some parties may take legal action using the usurpers theory. She did not identify them.

A case in Connecticut “shows the viability of this theory,” she said. In that case a court ordered the entire legislature to desist taking any action.

Phil Strach noted the case, Butterworth v. Dempsey, occurred in 1965, and involved reapportionment of districts. Unlike the Covington case, every district in the state was declared unconstitutional.

“I don’t believe that’s something that needs to be dwelled on a lot” in the Covington case, Wynn said. The state Supreme Court should deal with the matter separately.