“North Carolina has become ground zero in the redistricting battles about how much and how little race can be used in the redistricting process.”
That’s the view of Hans Von Spakovsky, a senior fellow at the Washington, D.C.-based Heritage Foundation who studies election law. He is a former member of the Federal Elections Commission. He was a presenter June 17 at the Conservative Leadership Conference in Raleigh.
Political organizations in Washington have taken a keen interest in redistricting at the state level because it can shift the partisan balance in federal elections, Von Spakovsky told Carolina Journal.
North Carolina is a swing state, boosting its importance to groups that are pushing partisan redistricting challenges, he said.
Currently, three high-profile North Carolina redistricting cases are working their way through the courts. The plaintiffs in each claim black voting strength was diluted in some districts by packing minority voters into other districts.
North Carolina v. Covington claims the Republican-controlled General Assembly drew 19 state House districts and nine state Senate districts using unconstitutional racial gerrymanders. The U.S. Supreme Court returned the case earlier this month to a three-judge federal panel. The lower court called for new legislative elections in 2017 without justifying such a dramatic solution when less-disruptive options were available, the justices said.
Cooper v. Harris contends the General Assembly drew the 1st and 12th congressional districts unconstitutionally. The U.S. Supreme Court upheld a lower court’s decision that the districts were unconstitutional. The plaintiffs now want the Supreme Court to declare the new congressional maps excessively partisan gerrymanders.
Dickson v. Rucho challenges both legislative and congressional electoral maps as racial gerrymanders. The N.C. Supreme Court twice said the contested districts complied with the federal Voting Rights Act. After the Cooper decision, the U.S. Supreme Court sent the case back to the N.C. Supreme Court for reconsideration. A hearing is set for Aug. 28.
Von Spakovsky said redistricting law does not define precisely what constitutes a racial gerrymander. He calls it the “Goldilocks Principle of Redistricting.”
Case law says electoral districts relying too much on race can violate the Equal Protection Clause. But if race is considered too lightly, states get sued under the Voting Rights Act for harming minority voters. It’s hard to find a balance that’s just right to satisfy courts.
“That’s the reason you get so much litigation over this,” Von Spakovsky said.
Many observers expressed surprise that Supreme Court Justice Clarence Thomas sided with liberals to form a majority in Cooper v. Harris. But Von Spakovsky believes Thomas holds the correct view.
The Voting Rights Act was passed to prevent states from overtly preventing people from registering and voting. More recently, courts have said vote dilution can violate the Voting Rights Act. In those lawsuits, blacks don’t say they had trouble registering or voting, but claim their votes somehow were diluted in the way the districts were drawn.
“You can’t come up with any legal parameters to say how much you can dilute” or specify what the dilution is, Von Spakovsky said.
In Cooper v. Harris, Thomas argued the Voting Rights Act never was intended to apply to vote dilution claims or redistricting issues. Endless disputes about redistricting would lessen if courts following Thomas’ premise, Von Spakovsky said.
Von Spakovsky said he was mystified how the three-judge panel in Covington chose to order new legislative elections in 2017, cutting legislative terms for elected representatives to one year, setting aside the state constitution’s guarantee of two-year legislative terms. He said he is not aware of any precedents for such an order.
“It was very unusual, which I think actually kind of helps explain the Supreme Court’s reaction to it,” Von Spakovsky said.
Gov. Roy Cooper has attempted to accelerate drawing of new legislative maps so a new election can be held. The General Assembly rebuffed his efforts.
Von Spakovsky says the legislators elected last November should finish their terms, then use newly drawn districts approved by the court in the 2018 elections.