Opinion: Daily Journal

Updating the redistricting scorecard

As legislators sharpen their pencils for another round of electoral mapmaking, now seems like a good time to revisit North Carolina’s redistricting “scorecard.”

Little more than two months have passed since an earlier version of the scorecard filled this space. Much has happened in recent weeks to justify an update.

This column focuses on census-driven statewide redistricting plans. This means election maps for the N.C. House and Senate, along with the state’s 13-member delegation to the U.S. House of Representatives. (State lawmakers also have discussed judicial branch redistricting, and they’ve been embroiled in battles over redistricting for locally elected governing bodies.)

New state House and Senate maps top the priority list for legislative mapmakers. That’s because of a timeline set out by the three-judge panel overseeing a case called Covington v. North Carolina. In that case, the panel’s initial 2016 ruling declared more than two dozen legislative districts as illegal examples of racial gerrymandering. While the judges allowed 2016 elections to proceed under the disputed maps, they called on the General Assembly to draw new maps for a special election to be held this year.

Legislative leaders appealed and earned what could be described as a split decision from the U.S. Supreme Court. Without comment, a unanimous Supreme Court upheld the lower court’s ruling throwing out the disputed districts. This means lawmakers must redraw the districts.

But the Supreme Court offered less support for the proposed special 2017 election. The justices agreed — without dissent — that the lower court had made no serious effort to justify special elections that would step on state constitutional provisions and create electoral chaos. Message: If you’re going to order special elections, you better come up with stronger arguments.

Undaunted by the high court’s words, the Covington plaintiffs (aided by an overeager Gov. Roy Cooper) rushed back to the General Assembly and the trial court. They urged an election timeline that would still permit special elections, either this year or in early 2018. Meanwhile, lawmakers urged a more cautious, prudent response. They wanted to wait to see what the trial court would order before developing their new process for drawing maps.

The three-judge panel ruled last week. Once again, the verdict was a split decision. New election maps are due to the court by Sept. 1, although that deadline can be bumped back to Sept. 15 if the legislature meets earlier procedural deadlines.

More important for legislative leaders is the fact that the three-judge panel has dropped its original proposal for special elections. The judges have not explained their reasoning, but one suspects a dressing-down from the highest court in the land played no small part in prompting the trial court to deny that portion of the Covington plaintiffs’ request.

Armed with the latest guidelines from the trial court, legislative mapmakers responded in less than two days. First, they scheduled last Friday’s public comments on the process of drawing legislative election maps. Second, they agreed to reconvene this Thursday to adopt mapmaking criteria.

At this point, it appears that lawmakers will work toward the trial court’s Sept. 1 deadline. The Covington plaintiffs will respond, and whatever ruling the three-judge panel issues is likely to face an appeal back to the U.S. Supreme Court.

That’s just the first line on the scorecard.

In addition to its ruling in Covington, the U.S. Supreme Court also tackled North Carolina’s congressional maps this spring in the Cooper v. Harris case. The court’s 5-3 ruling in Cooper offers much less certainty about North Carolina’s future course of action.

It’s clear from the Cooper ruling that the state cannot revert to the congressional election map used in 2012 and 2014. The high court has determined that the 1st and 12th Districts in that map relied on illegal racial gerrymandering.

But that map is already dead and buried. Voters headed to the polls in 2016 with a new congressional election map. It was designed to take no account of race in drawing election districts. Instead, electoral mapmakers proceeded with the clear, explicit goal of drawing boundaries to help elect 10 Republicans and three Democrats to Congress.

The explicitly partisan nature of that redistricting effort has prompted multiple legal actions that remain unresolved. First, the plaintiffs in the Cooper case have asked the U.S. Supreme Court to allow them to continue challenging the 2016 election map. The original trial court in the Cooper case upheld the 2016 congressional map. Now, with the name of the case flipped to Harris v. Cooper, the plaintiffs want to challenge the map as an illegal partisan gerrymander.

Two other lawsuits, Common Cause v. Rucho and League of Women Voters v. Rucho, also challenge North Carolina’s 2016 congressional map as a case of illegal partisan gerrymandering. The now-consolidated cases had been scheduled for trial in June. Both have been delayed indefinitely.

One reason for the delay is the fact that the U.S. Supreme Court is scheduled to address a different partisan gerrymandering case this fall. The high court’s ruling in that Wisconsin case, Gill v. Whitford, is likely to impact all three federal cases challenging North Carolina’s current congressional map.

It’s not clear that North Carolina will need a new congressional election map for 2018. Legislative leaders and their critics are unlikely to know how they will need to proceed until the Supreme Court issues its ruling in the Wisconsin case.

There’s one more line on the scorecard that requires an update. Along with the Covington, Cooper, Harris, Common Cause, and League of Women Voters cases, the oldest lawsuit from this redistricting cycle remains active.

The N.C. Supreme Court has twice rejected the challenges against legislative and congressional maps tied to the Dickson v. Rucho case. Now, after the U.S. Supreme Court sent the case back to North Carolina for reconsideration in light of this spring’s Cooper ruling, the state Supreme Court will take its third crack at Dickson on Aug. 28.

This will be the first time the N.C. Supreme Court has addressed redistricting since the 2016 election flipped the court’s partisan makeup from a 4-3 split favoring Republicans to a 4-3 split favoring Democrats.

It’s unclear how that change will influence the state Supreme Court’s approach toward election maps. It’s also uncertain whether a lawsuit originally filed in 2011 can have any impact on the 2016 congressional map, since the Dickson plaintiffs were not involved in the case that led lawmakers to redraw congressional boundaries.

It’s entirely possible that the previous 1,000-plus words have made North Carolina’s redistricting picture clear as mud. One thing that should be clear is that it’s nearly impossible to keep track of the state’s redistricting story without an up-to-date scorecard.

Mitch Kokai is senior political analyst for the John Locke Foundation.