Opinion: Daily Journal

A First Look at the New Maps

RALEIGH — After a start-and-stop day of not-very-much legislative debate, members of the North Carolina General Assembly started Monday to do what they were ordered to do by the state courts. They redrew their districts, yet again. If these districts get final approval, they will guide legislative elections from 2004 through 2010. But it’s too early to assume anything about the final outcome of this process, a process that has yielded political surprises and stunning reversals of fortune in court.

On the Senate side, my preliminary take is that Senate leader Marc Basnight and other insiders decided to push their plan up to what they consider to be the edge of legality while marginally (but not radically) improving the Democrats’ chances for holding the chamber. In some ways, the new Senate map improves on the interim one issued last year by Superior Court Judge Knox Jenkins, particularly with regard to compactness and whole counties in Eastern North Carolina. The plan actually divides fewer counties than the interim one, and there are some obviously more rational groupings of counties.

But notice that I said Basnight and Co. pushed the plan up to what they consider to be the edge of legality. The problem for them this time around may be the issue of “retrogression” — a decline in black voting strength in counties under the jurisdiction of the federal Voting Rights Act. You can see the effects in a number of places across the Senate map: districts that are strongly oriented towards the election of African-American representatives become less so as black voters are moved into neighboring counties, either to shore up vulnerable white Democrats or marginally reduce the re-election chances of Republicans.

There were nine districts with a majority or at least a large percentage (above 40 percent) of black voters in the 2002 interim map. All but one of these districts experience a decline in black voting strength in the new maps. For example, in Mecklenburg’s District 38 the percentage of black voters falls from 57 percent in the 2002 version to 49 percent in the new one. Who’s the beneficiary? Any Democrat interested in running in a new District 40 that starts in northern Mecklenburg and then stretches down into African-American precincts in uptown Charlotte. The district has a 32 percent black voting population, compared with only 9 percent for the previous District 40 now represented by Republican Robert Pittenger. The new 40 is open, while Pittenger and fellow GOP incumbent Bob Rucho are forced to run against each other in a reshaped District 39 in southern Mecklenburg. Hmmm, I wonder where the longtime Democratic senator Pittenger beat last year, Fountain Odom, now resides. . .

Something similar happens in Greensboro as Sen. Katie Dorsett’s District 28 goes from 51 percent black to 46 percent black, with most of the African-American voters added to Sen. Kay Hagan’s District 27, which was previously somewhat competitive. Now it’s less so. Over in Wake County, Democratic Sen. Eric Reeves barely squeaked by in 2002 against former Raleigh Mayor Paul Coble. Now his District 16 is 13 percent black, up from 9 percent, while neighboring Sen. Vernon Malone’s District 14 experiences a three-point retrogression.

Sen. Dan Clodfelter, a white member whose Mecklenburg district also loses a significant number of black voters, apparently to the new District 40, told reporters that the Senate’s bold, retrogressive approach to the minority-influence districts is based on a new U.S. Supreme Court case, Georgia v. Ashcroft, which he argued serves as a green light for legislators to consider factors other than whether minority voters can elect minority candidates. Basically, he invited the legal challenge that Senate Republican leader Patrick Ballantine has already promised. Based on my understanding of the case, my completely non-expert legal opinion is that Clodfelter correctly interprets the U.S. Supreme Court’s reasoning in Georgia v. Ashcroft but fails to consider how the Georgia case differs from the potential North Carolina one on the facts.

Moreover, and this is critical, if the Georgia v. Ashcroft case empowers North Carolina lawmakers to draw Voting Rights Act districts on the basis of considerations other than maximizing minority chances to elect a candidate of their choice, then the implications go far beyond just a freer hand to buttress a few white Democrats. Given that the state courts in our own Stephenson v. Bartlett have already concluded that the VRA must be harmonized with state constitutional protections as much as possible — including the whole-county provision and the doctrines proceeding from it, as defined by the N.C. Supreme Court — the application of Georgia v. Ashcroft could require a substantial redrawing of House and Senate districts to make them more compact and respectful of local boundaries. In both the House and Senate maps, it is immediately evident that reducing minority voting strength in VRA counties would allow lawmakers to offer voters the electoral benefits of Stephenson v. Bartlett without diluting their ability to “influence” electoral outcomes, as the Georgia v. Ashcroft case requires. Basically, if Clodfelter is right and Georgia v. Ashcroft is controlling here, lawmakers have far more of an obligation to adjust VRA districts to meet Stephenson‘s guidelines than they do to help Democrats, for which there is no constitutional sanction.

So it’s back to court — except that now, thanks to a provision in the Senate plan, there is to be a new three-judge panel in Wake Superior Court to which redistricting cases are to be sent. Can senators legislate their own judicial venue? I guess we’ll find that out, too.

Meanwhile, over in the House, Co-Speaker Richard Morgan made good on widely reported threats to take out Republican incumbents he didn’t like — or, in his words, to seek to replace “less effective” Republicans with “more effective ones.” His main nemesis, former GOP Majority Leader and gubernatorial candidate Leo Daughtry, is forced under the new map to run against his friend and fellow Johnston County Republican Billy Creech. Another irritant to Morgan, Rep. Ed McMahon of Mecklenburg, was pushed into a district with Rep. Connie Wilson. Ditto for Iredell’s Rep. Frank Mitchell, a vociferous Morgan foe, who now shares a district with Yadkin’s George Holmes (who was the Republican caucus choice for speaker last year), Reps. John Rayfield and Patrick McHenry in Gaston, and Rep. Wayne Sexton, for a time a rumored speaker candidate himself, who must run in a Democratic-leaning district against Democratic incumbent Nelson Cole. Both reside in Rockingham County on the Virginia border.

While partisan Republicans are fuming over what they see as Morgan’s duplicity, they are making what I believe to be the wrong argument: that it is somehow fundamentally unjust or unfair to “double-bunk” incumbents in the same district. Actually, I think that the redistricting process ought to be completely blind to the residency of incumbents. Voters deserve districts that conform as much as possible to county and municipal boundaries, that are compact and rational, that are as competitive as possible, and that make it easy for voters to gather information and participate in the process. If drawing such maps unseated lots of incumbents, Democrats and Republicans, I’d be rather pleased.

And, as it happens, the House map does improve the compactness and rationality of some of the districts, particularly in urban areas, where the double-bunking occurs. Unfortunately, Morgan didn’t limit himself to taking a few political scalps where it was convenient. He and Speaker Jim Black also arguably skirted the N.C. Supreme Court’s clear standards on counties and compactness in order to improve their political positions or engage in vendettas. There are also allegations of retrogression in more than half of the minority-influence districts in the House, again with the purpose of adding or subtracting a few likely Democratic votes to nearby districts with vulnerable Democratic or Republican incumbents.

There is another related issue likely to be settled in court. Some of the Morgan foes forced into double-bunks could elect to establish residency in another district, whether one or occupied, and seek election. While there is a state constitutional provision that requires candidates to reside in a district for at least a year before an election, there appears to be legal precedent for the claim that this rule can’t apply if the districts do not even exist a year before the general election. Since Morgan and Black chose to delay their redistricting session beyond Nov. 2, 2003, a move that lacked any rational justification other than trying to take out political opponents, candidates such as Leo Daughtry might well argue that they had no legal recourse other than to challenge the residency requirement. (Frank Mitchell, by the way, reportedly avoided even this necessity by establishing residence before Nov. 2 in another part of Iredell County so he can run against Morgan ally Julia Howard in a Republican primary).

According to my admittedly preliminary analysis, it must be noted that both the Senate and House maps opted for essentially minor rather than major surgery on the interim maps ordered by Jenkins last year. The Supreme Court’s rules may have been flouted to an extent but they still served as a check on the more blatant and unconstitutional forms of gerrymandering that legislative leaders had tried last year. The result is that if the new maps withstand court challenge, Republicans have a reduced but still viable chance of making gains in the 2004 elections. By my count, about 51 of the 120 House seats are pretty safely Republican and 49 are Democratic. This is not much different than under the previous districts. However, the remaining “swing” districts swing a little higher to the left than they do to the right, if you know what I mean. The differences can be slight, only a percentage point or two in party registration or previous voting patterns. But in a state where power is settled statewide by only a few hundred votes in a few districts, the differences could still be decisive.

In the Senate, the possibility still exists for Republicans to win several swing seats now held by Democrats — such as coastal and mountain districts largely untouched by the new map — but they will have to make up an urban seat or two lost in the new map. The incline for them is steeper but it isn’t insurmountable.

I’d study these figures some more, perhaps even come to a different conclusion, but since this is all going to end up in court anyway — the first question would be where? — I think I’ll wait and see if it’s worth my while.

Hood is president of the John Locke Foundation and publisher of Carolina Journal.