New maps proposed for 2020 legislative elections emerged from the most open, transparent process North Carolina ever has used to draw election lines. It would be a shame to see those maps tossed out through a process that lacks the same degree of transparency.
But that opaque outcome remains a distinct possibility. It depends on how a three-judge panel and a Stanford law professor decide to respond to the maps.
Let’s recap the steps that led the judges and the professor to play a role in North Carolina’s state House and Senate elections.
Democrats and their allies have challenged Republican-drawn legislative and congressional election maps throughout this decade. By 2018 all of the original maps GOP legislators drafted in 2011 had been replaced. Federal courts had tossed those original maps because of alleged racial gerrymandering.
Court-approved maps used in 2018 elections allowed Republicans to maintain control of both chambers of the General Assembly, albeit with smaller majorities. (More Democrats serve in the legislature now than at any time since the GOP first took over the legislative branch in 2010. Republicans won that year’s state House and Senate elections under maps drawn by Democrats to elect Democrats.)
Not content with the outcomes of their racial gerrymandering lawsuits, Democrats and their supporters have shifted their focus to challenging Republican election maps on the basis of “extreme” partisan gerrymandering.
The word “extreme” is important. State and federal courts have long permitted some degree of partisanship in electoral mapmaking. To declare the 2018 maps unconstitutional, judges would have to determine that those maps deviated in some substantial way from every other election map legislative Democrats and Republicans drew in the past.
The U.S. Supreme Court officially shut the door in June on partisan gerrymandering cases in federal courts. A 5-4 decision in a case involving N.C. congressional districts served as the vehicle. The Supreme Court majority agreed it could find no basis — “judicially manageable standard,” in technical terms — to distinguish between acceptable and unacceptable degrees of partisanship in mapmaking.
As that decision came down, Democratic plaintiffs already had turned their attention to state court. They asked the three-judge Superior Court panel in Common Cause v. Lewis to determine that “extreme” partisanship in electoral mapmaking violated provisions of the N.C. Constitution.
The judges agreed. Giving state lawmakers roughly two weeks to redraw maps, the unanimous panel used its court order to pave the way for the open, transparent mapmaking process.
The panel forbid legislators from using the now-discarded “extreme” maps as the starting point for new maps. Lawmakers could use no “partisan considerations” or previous election results when drawing new lines. Judges banned the General Assembly from hiring outside experts without court approval.
And, in a first for electoral mapmaking, the court ordered lawmakers to draw new maps “in full public view.” That included public hearings with any “relevant computer screen visible to legislators and public observers.”
Legislative leaders complied. They conducted all redistricting work in their two largest committee rooms. Existing audio streams remained turned on throughout the process. And lawmakers embedded new real-time video streams to the legislative website. Those streams were activated throughout the mapmaking work.
Redistricting reform activists took note.
One would not expect former UNC System President Thomas Ross to carry water for Republican lawmakers. Their appointees to the university’s Board of Governors had ousted Ross from his job in 2016. Yet Ross, now co-chair of North Carolinians for Redistricting Reform, called the recent legislative mapmaking process “a successful experiment in democracy” in a September News & Observer column.
“There was bipartisanship,” Ross wrote. “There was transparency. And as a result, we have fairer maps.”
Acknowledging some continuing concerns, including Republicans’ “baked-in” geographic advantage and court-sanctioned efforts to protect incumbents, Ross nonetheless reached a clear conclusion. “The bottom line is the process was a meaningful improvement, even i[f] not perfect, and the outcomes were fairer, even if not ideal in everyone’s mind.”
Democratic plaintiffs disagree. They want the three-judge panel to reject the new maps. If that happens, it’s likely that a court-appointed “referee” in the case, Stanford law professor Nathaniel Persily, will draft maps of his own.
Would the public see Persily’s work? In real time? In a public hearing with full video and audio streaming? Would interested observers be able to judge whether the referee took partisan considerations or previous election results into account?
Nothing within the three-judge panel’s orders in the case guarantees transparency. The referee will “assist the Court in reviewing any Remedial Maps.” If Persily and the judges decide the General Assembly’s maps are not “lawful,” the referee will “develop remedial maps for the Court.”
It’s entirely possible that Persily’s mapmaking could take place entirely behind closed doors.
Such a result would be disappointing. Now that the redistricting process has been subjected to a much greater degree of sunlight, returning to the shade would represent a clear setback for good government.
Mitch Kokai is senior political analyst for the John Locke Foundation.