Rules are important. Whether it’s a sporting event, a corporate meeting or a board game, rules set the parameters of the interaction. Without rules there’s confusion, uncertainty, ambiguity with participants jockeying for an advantage.
Nowhere are rules as important as in apportioning districts to ensure fair and equal representation in government. Our state constitution lays out who draws the maps and the guidelines. Even so, nowhere has there been as much controversy and litigation over redistricting than in North Carolina. Historically, the party in control of the General Assembly following the national census uses redistricting to give itself an electoral advantage. This has resulted in many lawsuits for decades. The courts have become rule arbitrators.
In 2002, the N.C. Supreme Court handed down a historic redistricting decision in Stephenson v. Bartlett, throwing out the gerrymandered maps drawn by Democrats who controlled the General Assembly after the 2000 census. The court determined what the constitution said, and what it didn’t — clarifying the rules for redistricting.
The N.C. Constitution under Article II empowers the General Assembly, after each decennial consensus as ordered by Congress, to revise and apportion districts.
Article II, Sections 3 and 5, lay out four requirements that apply to drawing the districts:
- Each state senator and representative represent as nearly as possible an equal number of inhabitants, total in state divided by 50 for Senate district; 120 for House seats.
- Each district must consist of contiguous territory.
- Counties must be kept whole in the formation of districts.
- Once established, the districts remain the same until the next national census is taken each decade.
Even with these constitutional rules in place, there was enough wiggle room and self-interested intent that Republicans sued Democrats for gaming the system to ensure an advantage in elections. The case is Stephenson v. Bartlett 355 N.C.354, 358-60, 562 SE2nd 377, 381-83 (2002), also known as Stephenson 1. This is the state Supreme Court decision that litigation over the past 16 years has relied on. And that Democrats have sued Republicans over for their alleged efforts in gaming the system.
Stephenson 1 lays out the fundamental principles in the state’s role in redistricting and establishes the N.C. Supreme Court as the final word on what is constitutional and what isn’t. The court laid out nine clarifying rules that “must be present in any constitutionally valid redistricting plan.”
- To comply with federal law, voting right districts have to be drawn first and be consistent with federal law, must not have a retrogressive effect on minority voters, and keep counties whole as much as possible.
- To comply with one-man-one-vote principal, population numbers can deviate no more than 5 percent of the ideal number based on consensus count.
- Keep counties whole in non-voting rights districts
- In non-voting rights districts whose population numbers warrant two or more districts, each district will be single-member districts.
- When population warrants combining counties for a cluster, group the minimum number of whole contiguous counties to form one compact district.
- The whole county provision must be enforced to the maximum extent possible, with the smallest number of counties per district.
- Communities of interest should be considered.
- No multi-member districts, unless there’s a compelling governmental interest.
- No plan can deviate from these rules unless it’s necessary to comply with federal law.
Subsequent cases have returned to and insisted on strict compliance with the Stephenson 1 criteria over the years, mandating that in “creating legislative district, counties shall not be divided except to the extent necessary to comply with federal law, including the one-person, one vote principle and the voting rights act.” Districts must be compact, contiguous and keep communities of interest intact.
Even with the Stephenson 1 criteria clearly laid out, litigation over redistricting continues. North Carolina has more pending litigation in federal courts than any other state by far, currently with three separate cases challenging the state’s 2016 remedial congressional plan. Common Cause and the N.C. Democratic Party sued in state court on Nov. 13, 2018, asking that legislative districts be re-drawn for the 2020 election.
The 2019-20 General Assembly will consider many things — reining in the growth of government, fair taxes, reasonable regulations and investments in education and infrastructure, and likely redistricting for the 2020 elections. Luckily, there’s rules for the latter. Follow the rules, and there’s only one way to draw the maps.