When I first heard that a three-judge panel of federal judges had declared two of the congressional districts unconstitutional because the legislature had relied on race in drawing those districts, I expected we’d be called back for a Special Session to redraw those districts. Since I didn’t serve on the committee dealing with elections, I figured my role would simply be to show up and vote on new maps and probably some bill to establish the timetable for the election. I was wrong.
A few days later, I learned that a new joint redistricting committee would be formed to take public comment and then produce the maps. Surprisingly, I was named to the committee. While no doubt some would have loved to serve on this committee, I didn’t view it as a plum assignment. First, it was going to require me to spend almost a whole week in Raleigh on redistricting. Second, I was going to be working on a partisan redistricting bill even though I was on record as opposing partisan redistricting.
The appointment surprised me because I’m one of the primary cosponsors of a bill, House Bill 92 [Nonpartisan Redistricting Commission], which as the title of the bill suggests, would provide nonpartisan redistricting. Incorrectly, I figured my sponsorship of the bill would be an impediment to my appointment to the committee. Upon hearing of my appointment, I communicated with the Speaker’s staff to learn why I’d been appointed and learned that I was added to the committee because they needed a mountain legislator on the committee to help give it geographic diversity and that my legal degree was viewed as a positive. I also got the sense that my being an independent thinker was viewed as a plus along with my reputation for being pretty transparent.
Had I not been on the committee, I simply would have had to show up to vote. With the appointment came an assignment to facilitate a video public meeting. Eight different sites across the state were linked and public comment was received from persons and organizations interested in redistricting. My site was UNC-Asheville and, following the meeting, I drove to Raleigh for two more days of committee hearings in advance of the Special Session called by Governor McCrory.
Judicial criticism of the legislature’s earlier redistricting included a reference that the legislature had no criteria for its redistricting decisions. To address that issue, one of the first tasks for the Joint Select Committee on Congressional Redistricting was to adopt the following set of criteria:
- Equal Population. The Committee will use the 2010 federal decennial census data as the sole basis of population for the establishment of districts in the 2016 Contingent Congressional Plan. The number of persons in each congressional district shall be as nearly as equal as practicable, as determined under the most recent federal decennial census.
- Contiguity. Congressional districts shall be comprised of contiguous territory. Contiguity by water is sufficient.
- Political data. The only data other than population data to be used to construct congressional districts shall be election results in statewide contests since January 1, 2008, not including the last two presidential contests. Data identifying the race of individuals or voters shall not be used in the construction or consideration of districts in the 2016 Contingent Congressional Plan. Voting districts (“VTDs”) should be split only when necessary to comply with the zero deviation population requirements set forth above in order to ensure the integrity of political data.
- Partisan Advantage. The partisan makeup of the congressional delegation under the enacted plan is 10 Republicans and 3 Democrats. The Committee shall make reasonable efforts to construct districts in the 2016 Contingent Congressional Plan to maintain the current partisan makeup of North Carolina’s congressional delegation.
- Twelfth District. The current General Assembly inherited the configuration of the Twelfth District from past General Assemblies. This configuration was retained because the district had already been heavily litigated over the past two decades and ultimately approved by the court. The Harris court has criticized the shape of the Twelfth District citing its “serpentine” nature. In light of this, the Committee shall construct districts in the 2016 Contingent Congressional Plan that eliminate the current configuration of the Twelfth District.
- Compactness. In light of the Harris court’s criticism of the compactness of the First and Twelfth Districts, the Committee shall make reasonable efforts to construct districts in the 2016 Contingent Congressional Plan that improve the compactness of the current districts and keep more counties and VTDs whole as compared to the current enacted plan. Division of counties shall only be made for reasons of equalizing population, consideration of incumbency and political impact. Reasonable efforts shall be made not to divide a county into more than two districts.
- Incumbency. Candidates for Congress are not required by law to reside in a district they seek to represent. However, reasonable efforts shall be made to ensure that incumbent members of Congress are not paired with another incumbent in one of the new districts constructed in the 2016 Contingent Congressional Plan.
Some of the criteria received unanimous or near-unanimous support, for example, the equal protection and contiguity criteria. Other criteria were adopted along partisan lines, particularly the partisan advantage criterion.
Since Republican legislators supported these criteria, one might wonder how legislators like me or Rep. Paul Stam (R-Wake) could support a criterion that explicitly recognized partisan advantage as a criterion for redistricting. My view in voting on this criterion was that we were responding to a judicial decision that said we had unconstitutionally used race to map out the districts when what was actually done was partisan redistricting. Since redistricting for partisan advantage was not unconstitutional, albeit something I wanted to change, I voted to make it clear what was being done.
My further expectation was that, when the legislature came back in session, responsibility for taking up the bills would now be the responsibility of the House Committee on Elections, and I could assume a low profile role. Wrong again.
The first order of business was adopting rules for the extra session, and those rules, House Bill 1 [Rules], included the appointment of new standing committee on redistricting, and the House Members who had served on the Joint Select Committee on Redistricting were now constituted as the House Redistricting Committee.
The next two days were consumed by separate House and Senate committee meetings and then votes on two bills: House Bill 2 [U.S. House of Representatives Primary] and Senate Bill 2 [2016 Contingent Congressional Plan]. The House bill set June 7, 2016, as the new date for the congressional primary and the filing deadlines and other rules related to that primary. The Senate bill established the new maps. Those maps and all information relating to them can be found on the legislative website.
Under North Carolina law, the Governor does not have a role in establishing congressional or legislative districts. Therefore, upon passage of the maps by both chambers, those maps established the new districts. It should be noted that, while the legislature worked on new maps, legislative leaders hoped that the U.S. Supreme Court would stay the decision of the three-judge panel. Those hopes were dashed when the Supreme Court refused to stay the lower court decision.
Presumably, the new congressional maps now will be reviewed by the three-judge panel to determine whether they pass constitutional muster. The maps for our legislative districts are also being challenged in federal court in a separate lawsuit, but the primaries for those offices will proceed on March 15, along with the presidential primaries, primaries for statewide offices (Governor, Lt. Governor, Attorney General, etc.) and primaries for local offices.