RALEIGH — One of the consequences of the decision by legislative leaders to hold a special redistricting session just before Thanksgiving was that there was little time for lawmakers or outside observers to consider the implications of the new maps before breaking for the long holiday weekend.
I’m betting that these implications are going to become increasingly obvious over the coming days and weeks. I’m also betting — figuratively, of course — that the new House and Senate districts will not stand up to the various legal challenges about to ensue.
To understand why, you’ll have to bear with me on describing some problems I’ve already spotted. It would be immensely easier to stand in front of a blow-up of the maps and demonstrate what I’m talking about, but as I wrote in my weekly newspaper column (you can read it in Sunday’s High Point Enterprise) redistricting has a visual element to it that is difficult to translate into words. Nevertheless, I think I can show why the maps are vulnerable, and also why so many leading legislators have yet to grasp that the redistricting process now has rules that cannot be skirted for political ends.
First, it is critical to recognize that Republicans and Democrats (with the Richard Morgan GOP faction in the House essentially siding with the latter) are frequently talking past each other on this issue. Republicans argue, for example, that the new House and Senate districts still fail to comply with the standards of last year’s Supreme Court decision, Stephenson v. Bartlett. How can this be? the Democrats respond. The new maps divide fewer counties than Johnston Superior Court Judge Knox Jenkins did in his interim maps for 2002.
The explanation lies in the text of the decision. While the state constitution’s whole-county provision was a key element in the case, it wasn’t the only one. Nor can the court’s critera in Stephenson vs. Bartlett be satisfied simply by citing the number of counties divided. The rules are quite explicit, both in meaning and in priority. First, if there are any counties that can stand alone as House or Senate districts (because their population is within five percentage points of the ideal size), then they must be allowed to do so. Right off the bat, this rule constrains how creative districts can be because such counties act as a sort of “firewall” against alternative groupings of counties.
Second, and similarly, populous counties that can, by themselves, generate two or more House or Senate districts must be allowed to do so without crossing any county lines. Again, this acts as a constraint on creative line-drawing.
Third, with regard to counties that can’t stand alone as districts, lawmakers must group “the minimum number of whole, contiguous counties” and within these groupings draw “compact” districts in which the minimum number of county lines are traversed. And fourth, these clusters of counties must themselves consist of “only the smallest number of counties necessary” and “communities of interest should be considered.”
The disagreement lies with those third and fourth points. While Democrats say that their new maps divide fewer counties, Republicans respond that the maps impermissably reduce the number of county clusters — remember that the court requires the clusters to consist of “only the smallest number of counties necessary,” which in practical terms means that the more clusters the better.
Basically, Democratic leaders (and Morgan) never say anything about the clusters. In fact, as I discovered last week in conversations with Democrats, they resent the entire concept of clusters and don’t see how they relate to the original issues in the Stephenson v. Bartlett case. But it isn’t that hard to see where the court was coming from. It argued that because the state constitution’s whole-county provision clashes with the requirement that districts be as close as possible in population, and because the multi-member districts advocated by the Stephenson plaintiffs clashed with the interests of many voters, including minorities of various kinds (an argument from an NAACP brief that the justices appeared to take very seriously), some mechanism was required to reconcile the various legal standards while preserving the intent of the whole-county provision.
That mechanism was the county cluster, which the North Carolina court borrowed from other states. Like it or not, the cluster rules are now the supreme law of the state with regard to redistricting. And by my admittedly simple calculation, the new maps are vulnerable on these grounds.
According to a state GOP tally, the interim map drawn by Jenkins had 39 clusters while the new map has 36. Also, there were 11 one-county clusters in the Jenkins map and only 10 in the new one. Set aside these general statistics and look at a particular case in Western North Carolina. In the Democratic map, there is a three-county cluster of Polk, Henderson, and Transylvania counties and then a sprawling 12-county cluster that extends from the far western tip of the state (Cherokee, Graham, and Clay counties) to Avery and Caldwell counties in the High Country. I chose this region because none of the counties was under the jurisdiction of the Voting Rights Act. I then proceeded to regroup these same counties into three clusters: 1) Polk, Henderson, Transylvania, Macon, and Jackson (housing three districts); 2) Cherokee, Graham, Swain, Clay, Haywood, and Madison (housing two districts); and 3) Avery, Yancey, Caldwell, and Mitchell (housing two districts).
By my count, this alternative grouping increases the number of clusters and it even reduces the number of divided counties by one. Unless I’m wrong somewhere, this alternative is constitutionally mandatory. And because it only took me about an hour to figure this out, I can’t believe that legislative leaders didn’t recognize it as an option. I can only conclude that partisan or incumbency considerations intervened. More generally, I must conclude that other such options likely exist in areas of the state that can’t be studied from outside without precinct-by-precinct data (because of VRA considerations).
There’s another issue to consider, too — that of “compactness.” Some lawmakers who spoke out last week said that the new maps were more “compact” than the interim ones. I agree in part. Some parts of the state did see an improvement here. But others did not. Compactness is not an aesthetic preference. It is actually measured with few problems by a mathematical formula that compares the perimeter of a shape to the area contained within it. To assess compactness, then, you would add up the total length of the district lines in miles and then divide by the area contained within them. (To correct for some oddities that can result in some situations, you can then compare this ratio to the “perfect” one that assumes every district is a perfect circle.) Maps with a higher compactness ratio, all other things being equal, are constitutionally required to be accepted.
I don’t have the information to conduct this measurement, but the Stephenson plaintiffs probably do, particularly with regard to individual counties that house multiple districts. Alternative arrangements of these districts within a county (say, Mecklenburg or Wake) that have a better compactness ratio are clearly preferred by the court’s ruling. Plaintiffs can also offer maps that better protect “communities of interest,” such as municipalities, and again such maps would be constitutionally required.
While the political spotlight during the redistricting session centers on disputes about the VRA, the Stephenson implications appear to be clearer. If plaintiffs return to court and seek redress under the existing decisions, they seem likely to get it. Perhaps that’s why so many Republican and Democratic legislators were so nonchalant during the session about the districts, even when their own political future was at stake. They expect the maps to fail the legal test, and I’m inclined to agree.
Hood is president of the John Locke Foundation and publisher of Carolina Journal.