Did Roy Cooper and Josh Stein just do the GOP a solid on redistricting?

While the new N.C. congressional map is likely to undergo significant changes, Republicans may not have to significantly alter their recently enacted legislative maps that were declared unconstitutional by the state Supreme Court. Carolina Journal recently reported exclusive details on a new congressional map expected to be released today.

The map will likely result in seven safe GOP seats, five safe Democrat seats, and two swing districts that at the moment appear ripe for Republican picking based on general positive GOP trends in 2022.

While the new congressional map would be a clear and measurable improvement for Democrats, a test suggested by the state Supreme Court in its full gerrymandering decision that was just released Monday leaves the door open for only minor changes to legislative maps, still resulting in strong GOP legislative majorities in both chambers.

Ironically, the test was suggested by North Carolina’s two most influential Democrats, Gov. Roy Cooper and Attorney General Josh Stein in a friend-of-the-court brief.

In the 138-page majority opinion — endorsed by the four Democrats on the Supreme Court and authored by Justice Robin Hudson — the court identified several tests it would likely accept to prove the legislative districts are not partisan gerrymanders that violate the state constitution.

“We do not believe it prudent or necessary to, at this time, identify an exhaustive set of metrics or precise mathematical thresholds which conclusively demonstrate or disprove the existence of an unconstitutional partisan gerrymander,” wrote Hudson. “[T]here are multiple reliable ways of demonstrating the existence of an unconstitutional partisan gerrymander. Mean-median difference analysis; efficiency gap analysis; close-votes, close-seats analysis; and partisan symmetry analysis may be useful in assessing whether the mapmaker adhered to traditional neutral districting criteria and whether a meaningful partisan skew necessarily results from North Carolina’s unique political geography.”

Hudson then specifically pointed to the test suggested by Cooper and Stein:

“It was also suggested that the legislature could be required to draw districts ‘within 5% of the median outcome expected from nonpartisan redistricting criteria, at a level, across a range of electoral circumstances.’”

In advocating for this test, Cooper and Stein had written to the court:

“[A]dvances in computer modeling make it possible to easily compare enacted districting plans with other alternative plans, to assess how much the enacted plans deviate from median neutral plans that were drawn based on nonpartisan redistricting criteria.”

“Thanks to those advances, this Court could adopt a rule that is similar to the one the U.S. Supreme Court has developed to govern allowable population deviations,” they added. “Under that rule, an enacted plan would be subject to strict scrutiny unless the plan stays within 5% of the median outcome, measured by seat count, at a statewide level across a range of electoral circumstances.”

Andy Jackson, director of the Civitas Center for Public Integrity at the John Locke Foundation, applied this formula to North Carolina’s recently enacted legislative districts. Lawmakers must redraw those maps by Friday to meet a Supreme Court deadline.

Jackson examined the available data, including testimony from the plaintiffs in the gerrymandering case, and determined that median neutral plans would likely result in a 28-22 GOP majority state Senate and a 68-52 GOP majority state House. Should the GOP maximize the 5% variance in its favor, the GOP could create 29 Republican Senate seats and 71 Republican House seats and still pass the test suggested by Cooper and Stein and proposed in the Democrats’ majority court opinion.

Each test suggested by the court would have slightly different results, and each side of the redistricting debate could cite the test most favorable to its side. Again, perhaps ironically, the Cooper/Stein test could be one of the most GOP-favorable tests the General Assembly could cite, as opposed to others such as the efficiency gap or partisan symmetry analysis test.

The Locke Foundation concluded that the difference between invalidated state Senate maps and an acceptable 29-21 GOP map is about one Senate seat.  Carolina Journal has learned that one of the two eastern and northeastern Senate districts (NC Senate 1-2) is likely to be flipped from GOP to Democrat in the Senate redraw.

A few Democratic-leaning districts are likely to become more favorable for Democrats, but the Cooper/Stein formula opens the door to a solid 29 GOP seats, with Republicans only needing to overperform in one Senate contest to hit the 30-seat threshold and achieve a narrow supermajority.

Similarly, with the Cooper/Stein formula allowing for the creation of 71 GOP House seats, Republicans would only have to overperform in one Democrat-leaning district to cross the 72-seat supermajority threshold in the House.

District drawing is sometimes more art than science. Whether the GOP can maximize seat totals under the Cooper/Stein formula while following all other redistricting requirements is unknown. However, the courts’ acceptance of the Cooper/Stein formula could result in a split decision for Democrats: a significantly improved congressional map with less-than-satisfying changes to legislative maps that fundamentally do not alter the landscape of the 2022 legislative elections.