The legislature will be in session next week. What exactly is being taken up is unclear, although it appears it may include redistricting of some sort. The legislature is awaiting a decision from a three-judge panel of federal judges considering the constitutionality of legislative districts drawn after the original districts were found to be unconstitutional as racially gerrymandered. In a related case, the U.S. Supreme Court stayed action on a decision of another three-judge panel of federal judges, who found congressional districts were unconstitutional because they were politically gerrymandered.
Originally, the legislature was remaining in session to take action as required by a court. However, with the Supreme Court staying the decision on the congressional maps, one has to wonder whether the legislature will have to take action on the lawsuit relating to legislative maps or to change the qualifying period for candidates to run for federal or state offices, which runs from February 14 to February 28, to allow the lawsuits to run their courses.
While these lawsuits are proceeding in federal courts, lawsuits are also proceeding in state courts on some of the same or similar issues. One might say that the whole redistricting process has become a jobs program: a “full-employment-for-lawyers” program.
Having held a town hall on the issue of redistricting, it is clear a lot of people are confused about what it going on . . . and rightfully so. My goal in writing is to try to explain the issues in layman’s terms. However, I do this with some trepidation; the last time I tried to simplify an explanation about redistricting in a communication with a constituent my email became evidence in one of the redistricting trials. Moreover, my views on redistricting don’t fit either the Republican or Democratic narratives on the issue.
The first thing to understand is that there are several different types of redistricting. Congressional districts are the districts that candidates for U.S. House seats run in. State legislative districts are the districts that candidates for the state senate and the state house run in. Judicial districts are the districts for judges and district attorneys. Local government districts are districts that may be established for elections to county commissions, municipal councils and school boards.
The second thing to understand is that redistricting is playing out in different forums. The legislature has primary responsibility for redistricting. Following the decennial census, the legislature is tasked with drawing congressional and state legislative districts of roughly the same size. Once the legislature draws the districts, those districts may be challenged in court if some person or group thinks they don’t pass constitutional muster. In the past, many of the challenges have involved claims that they are drawn unfairly with respect to racial minorities. The current round of challenges to the congressional and state legislative districts also allege the legislature politically gerrymandered the districts. As yet, the U.S. Supreme Court hasn’t ruled on whether partisan redistricting, where legislators redistrict to preserve or enhance their legislative majorities, is unconstitutional.
The last thing to understand is that there are differences between each type of redistricting. When drawing congressional districts, the legislature makes them equal in size. The difference between the districts are within one registered voter of each other. Legislative districts are roughly equal, but aren’t drawn so closely. For example, the two districts that house Henderson County, my district (House District 117) and Rep. Cody Henson’s district (House District 113), are separated in size by a few hundred votes.
While the legislature redistricts legislative and congressional districts every ten years, judicial redistricting doesn’t occur as often. Local government districts are usually set by the legislature when a town or county or school system is established, but that redistricting is often done by those local governments. However, the legislature has, in recent years, done some redistricting of local governments. Last session, a redistricting bill, Senate Bill 285 [Equal Representation for Asheville] , related to Asheville passed the legislature.
Folks don’t realize that, while the Governor can sign or veto statewide legislation, the Governor doesn’t can’t approve or disapprove redistricting legislation. That power resides solely with the legislature.
There is also one other difference between judicial redistricting and other types of redistricting. In legislative-type of seats (congressional, state legislative or local government), everyone’s vote needs to be roughly equal. For example, one doesn’t want a state senator to represent a lot more or a lot less people because everyone’s vote should mean the same thing.
Judicial positions are not the same. In those districts the judges and district attorneys aren’t casting votes for citizens. In judicial redistricting cases it is more about caseload and the appropriate allocation of resources (i.e. how many judges, district attorneys, public defenders, etc.). One also wants districts that are geographically contiguous to the courthouse.
So next week could have the legislature redistricting, if that is what a court orders. However, if the U.S Supreme Court stays whatever decision is rendered in the legislative redistricting case, then the legislature will not likely be doing anything related to congressional or legislative redistricting.
Judicial redistricting could go forward next week, but it wouldn’t happen until Senate and House leadership are in agreement on the districts. As has been broadly reported, the legislation that goes forward on judicial redistricting could include changes to how judges are chosen, probably including some sort of merit-based judicial selection process. Any such changes would likely require an amendment to the state constitution which would require voter approval. There is skepticism about whether voters would approve any change which might preclude the election of judges by voters.
There is no suggestion that next week’s session will involve any legislation related to local government districts. Asheville responded to Sen. Edwards’ legislation requiring districts for city council elections with a referendum where Asheville voters indicated they didn’t want any such districts. Of course, since Asheville has refused to redistrict that could leave the task to the legislature, but that appears to be a job for the Short Session—perhaps in April or May.
In earlier rulings by federal courts, the legislature was found to have racially gerrymandered congressional and legislative districts, and that required the legislature to re-do its redistricting. Despite these rulings, I can say that I’ve never seen or heard anything that supports a finding that there was a racial gerrymander. What I did see is that Republican legislators drew districts with partisan intent. Republicans after the 2010 census did what Democrats did following the 2000 census: created districts favorable to their parties.
While the federal courts found racial gerrymandering, one has to wonder if districts determined to be racial gerrymanders were really just partisan gerrymanders. It is a fact that African-Americans vote for Democratic candidates by larger percentages; therefore, when legislators try to gain a partisan advantage, what looks like a racial gerrymander might really be legislators grouping Democratic voters (African-Americans) into districts to gain legislative seats.
As an environmental leader, I’ve seen laws intended to protect endangered species used to block construction projects; the persons using the federal Endangered Species Act to try to block a construction project had no real interest in protecting endangered species. They just used the law to block a project that they didn’t like for some other reason.
The criteria used in map drawing in 2016 made clear Republicans would attempt to preserve the 10-3 advantage among NC’s U.S. House delegation. Rep. David Lewis (R-Harnett), a leader of the redistricting process, admitted the legislature would “draw maps to give a partisan advantage to 10 Republicans and 3 Democrats because I do not believe it is possible to draw a map with 11 Republicans and 2 Democrats.” That sounds like partisan intent to me.
The question of whether a partisan redistricting is unconstitutional is before the Supreme Court in cases out of Wisconsin and Maryland. While a three-judge panel found unconstitutional partisan redistricting in the case stayed by the U.S. Supreme Court, another three-judge panel reached the opposite conclusion with respect to redistricting in Pennsylvania. It seems the only way the various challenges arising from redistricting in different states can be reconciled will be for the Supreme Court to determine whether partisan redistricting is unconstitutional.
Putting aside the constitutional issue, as a state legislator, my focus is on the issue of whether partisan redistricting is good public policy. My view is that it is not. For that reason, I’ve supported nonpartisan redistricting modeled on Iowa’s process. While the legislature, under the Iowa model, would ultimately approve congressional and legislative maps, the process of putting forward those maps would lie with a group of people who are not legislators.
Why do I support nonpartisan redistricting? Well, first, I think voters should choose their legislators, rather than legislators choosing their voters. Second, I think partisan redistricting is resulting in less competition between the parties in general elections while causing some of the districts to become more liberal and some more conservative. In other words, our process is killing off the middle of the political spectrum and leading to more partisanship. That clearly didn’t work in California in the 2000’s, isn’t helping to make Congress functional now, and is making North Carolina’s legislature more contentious. In summary, putting aside the constitutional issue, nonpartisan redistricting is good public policy.
So what have I done about it? Well, I’ve supported nonpartisan redistricting since arriving in the General Assembly. I voted for a bill, House Bill 824 [Nonpartisan Redistricting Process], that passed the House in 2011 that would have provided for nonpartisan redistricting. Since then, I’ve been a primary sponsor of the bills to provide for nonpartisan redistricting, including last year’s bill, HB200 [Nonpartisan Redistricting Commission].
My constituents might wonder with my support of nonpartisan redistricting why I have supported various redistricting that arguably involved partisan redistricting. The answer is simple. The various redistricting plans either were quite acceptable for Henderson County (my district) or didn’t involve Henderson County. Until the U.S Supreme Court determines whether partisan redistricting is unconstitutional and/or a nonpartisan redistricting bill passes, the redistricting process is what it is. Voting against the various legislative redistricting plans isn’t going to make a difference and is only going to make it more difficult for me to persuade my Republican colleagues that we need to change the process.
With respect to partisan elections for the school board or local governments other than the county commission, I’ve made clear my opposition to those proposals. When other local redistricting plans move forward, I generally support what the legislators who represent those areas want. With respect to the Asheville redistricting, I carried Sen. Edward’s redistricting bill in the House. The House originally adopted an amendment to provide for nonpartisan redistricting, but then reversed course. I supported nonpartisan redistricting for Asheville, and opposed the amendment to change that.
With respect to judicial redistricting, I recognize it has been decades since we last redistricted and that the caseloads and the size of the districts are really out of whack. I wish we weren’t taking this up in the midst of these other redistricting issues, but I supported the House bill, HB717 [Judicial Redistricting & Investment Act] because I felt it had been decades since the districts had been revised, and they needed work in light of the significant population changes that had occurred. The bill also allocated additional resources to districts based on caseload, and the district in which Henderson County resides would gain a district court judge and an assistant district attorney. House passage of H 717 was just the first step in a long process, and I thought that the process should continue, recognizing the bill would have to come back to the House before final passage and it might include a merit-based selection process for judges, a process I might support.
Understanding redistricting is difficult. It is also difficult to keep up with what is going on since it is playing out in federal and state courts and the legislature. Please contact me if you have any questions.
[Note: The ground continues to shift. The other three-judge panel ruled today and that ruling is likely to be immediately appealed to the U.S. Supreme Court seeking a stay as with the congressional redistricting case. Stay tuned.]