North Carolina’s 2020 election maps created by House members may not stand up to court scrutiny.

That’s what plaintiffs in Common Cause v. Lewis argue in a brief they filed Friday, Sept. 27, in Superior Court. Plaintiffs found partisan bias in five of the county groupings redrawn by the House. Specifically, they found four of the five contested groupings were “extreme, pro-Republican partisan outlier[s],” when compared with new computer-simulated maps generated specifically for those groupings by the plaintiffs’ expert witness Jowei Chen. Two county groupings are 100% outliers, meaning they favored Republicans more than all 1,000 of Chen’s computer-simulated maps. 

The plaintiffs didn’t take issue with the Senate maps. Those maps easily passed the full Senate 38-9 in a bipartisan vote, although they received very little bipartisan support in the House, passing 62-52 with only two Democrats in favor and one Republican opposed. 

The court has given defendants until the end of the week to issue their own comments about the plaintiffs’ complaint.

In their brief, defendants would have a chance to respond to other allegations by the plaintiffs, including one saying some representatives violated the court’s order by using partisan data during the map-drawing process.

This was, in part, because of what happened Sept. 9, according to the plaintiffs’ brief. On the first day of the map-drawing process, defendants’ counsel dumped Chen’s charts, which contained partisan data and were aggregated for the purpose of proving partisan bias during the trial, into an email sent to all members of the House and Senate redistricting committees. 

About 20 minutes later, plaintiffs’ counsel sent an email warning lawmakers the files shouldn’t have been sent, as they contained partisan data. More than two hours later, defendants’ counsel replied, saying the link to Chen’s data had been made defunct. 

Plaintiffs also drew attention to the fact Republican lawmakers sometimes left the room to “review” the maps. Involved in this review was a non-staff member, a political data analyst named Clark Bensen. Plaintiffs suggested Bensen’s background allowed him to help Republicans make decisions that would benefit their party.  

Rep. Pricey Harrison, D-Guilford, acknowledged she had received the email Sept. 9, but didn’t open it, as everyone had been told not to use partisan data. 

She echoed several of the plaintiffs’ other concerns that Republicans were considering partisan data behind closed doors. She questioned, for example, whether Republican leadership saw advantage in using the Chen simulations as base maps, or if both Houses independently decided to use them.

“I think we all wondered what was going on in that backroom behind the dais every time we went into recess and they came back and made different decisions,” Harrison said. 

Plaintiffs also expressed concern about the process for protecting incumbents, or making sure two incumbents wouldn’t have to run against each other in the same district in 2020. Members had the option between two different sets of Chen maps. The House opted for set one, which didn’t factor incumbents. The Senate picked set two, which included incumbency protection.

Plaintiffs argued choosing set one allowed lawmakers to construe maps for partisan reasons while pretending they were only trying to unpair incumbents. 

Rep. Robert Reives, D-Chatham, said he didn’t know of anyone specifically using partisan data to draw the maps. But members are generally aware of how their districts will vote, he said.

“I definitely want to be clear, I’m not making the accusation that anyone was using partisan data,” Reives said. “I just think there were partisan reasons for some of the moves, not that someone was sitting around looking at partisan data and saying we need to move this voting district here, or this one here.” 

Reives said it seemed members weren’t always going for the “simple fixes.” He said he’d prefer if a group of legislators would simply “bite the bullet” so everyone could avoid the trouble of accounting for incumbents.

“Once you fix it one time, it’s fixed,” he said. “Then you have fair maps and those are the maps you have for the next 10 years.” 

Most Democrats, including Reives and Harrison, voted against the House maps on the floor, even on the particular proposition for county groupings that passed unanimously in the House Redistricting Committee. Harrison explained the change in her vote, saying members in the committee didn’t have a chance to analyze the groupings before voting for them.

“I think it was an effort to sort of get along,” she said, “When I had more time to process what we had done, I realized there were a lot of flaws in the process.”

One other reason for concern was, unlike the computers in the Senate redistricting room, the mics near the computers in the House weren’t on, thus preventing people watching online from hearing why members were moving particular district lines.

Both Reives and Harrison say they’re confident in the abilities of the court’s appointed referee to draw fair districts, if the court should agree with plaintiffs that some of the counties should be redrawn. 

A voluntary response brief from defendants is due Oct. 4.