Packed and stacked or impartial? Redistricting maps head back to court

By: - February 21, 2013 2:12 pm

As sure as spring follows winter, litigation follows the decennial redistricting plans drawn up by the General Assembly.

And so on Monday begins the first phase of the latest dispute, this time arising out of plans approved in 2011. Attorneys for the parties will square off before a three-judge panel then, hoping to persuade the court that they’ve amassed enough evidence to prove—or disprove—the plans’ constitutional muster.

It’s a fight that has garnered national attention, and plenty will be watching as the case unfolds. In October, Atlantic Monthly profiled the architect of the plans, long-time Republican mapmaker Tom Hofeller, in an essay entitled “The League of Dangerous Mapmakers.”  Pro Publica detailed the backroom map-drafting taking place at state GOP headquarters, at times at the behest of Art Pope, in its story “How Dark Money Helped Republicans Hold the House and Hurt Voters.” And most recently, in a New York Times article called “The Great Gerrymander of 2012,” a Princeton professor called the results of the state’s 2012 congressional house vote, which went 51 percent Democratic, 49 percent Republican but yielded a delegation of only four Democrats and nine Republicans, statistically unlikely had districts been fairly drawn.

Shortly after the General Assembly gave final approval to those plans in November 2011, a collection of individual voters and organizations filed two separate actions, alleging that the legislators secretly drafted the plans in a way that diluted the African-American vote in several districts across the state. Those cases, Dickson v. Rucho and North Carolina State Conference of Branches of the NAACP v. North Carolina, have since been consolidated and are scheduled for two days of argument, Feb. 25 and 26, on the parties’ motions for summary judgment.

No live testimony will take place on those two days. Instead counsel will use facts developed over the past year to persuade the panel to enter judgment in their respective clients’ favor; otherwise the case will proceed to a full trial at a later date.

The panel—appointed by state Supreme Court Chief Justice Sarah Parker—includes Wake County Superior Court Judge Paul C. Ridgeway, Senior Resident Superior Court Judge Joseph N. Crosswhite from Statesville and Senior Resident Superior Court Judge Alma L. Hinton from Halifax.

The attorneys making the arguments are no strangers to each other or to redistricting litigation, having sat at the opposite side of counsel table a decade ago. Edwin Speas from Poyner Spruill in Raleigh, one of the lead attorneys for the plaintiffs in this case (along with Anita Earls from the Southern Coalition for Social Justice), then represented the state defendants as Chief Deputy Attorney General. He faced off against Thomas Farr and Phil Strach, then suing the state. Farr and Strach, whose firm Ogletree Deakins acted as counsel to Sen. Bob Rucho and Rep. David Lewis during the 2011 redistricting process, are now defending the state, along with Alexander McC. Peters and Susan Nichols from the Attorney General’s office.

Plaintiffs contend that Rucho and Lewis, as chairs of the Senate and House redistricting committees, directed the design and drafting of redistricting maps with little input from other legislators or the public at large. They instructed outside consultants, including Hofeller, who worked quietly in out-of-state offices and in state GOP headquarters in Raleigh to create state senate, house and congressional plans which, plaintiffs say, resulted in racially-gerrymandered districts. Those plans were then presented to legislators as essentially a done deal and approved by the General Assembly, initially on July 27 and 28, 2011, and finally (after curative legislation) in November of that year. No African-American legislator voted for any of those plans, and no other Republican plan was introduced. Alternative plans introduced by Democratic legislators were defeated.

Race was the overriding factor in the drawing of the new voting districts, plaintiffs say, with Rucho and Lewis intent on creating several new “majority minority” districts throughout the state. That’s established, they add, by Rucho’s and Lewis’ public statements and by instructions to consultants—including those to Hofeller to “draw a 50% [black voting population] plus one district wherever there is a sufficiently compact black population.” It’s also evidenced by the irregular geographic shapes of the districts drawn, including N.C. congressional district 4 (shown above), once a compact two-county district that now extends through parts of seven counties: Alamance, Orange, Chatham, Durham, Wake, Harnett and Cumberland.

The redistricting team created those districts, plaintiffs allege, by pulling black voters out of their prior districts and concentrating them in new ones, a redistricting concept known as “packing”—or “bleaching” when groups are moved based on race—making the outside districts in this case majority white and arguably more Republican-leaning.

And in many districts, plaintiffs say, the team pulled in more black voters than needed to achieve majority status. State house district 99, for example, went from a 41 percent black vote to 55 percent; senate district 40 went from 35 percent to 52 percent.

They also split precincts within districts in unprecedented numbers, at times drawing lines which divided even single family homes and apartment complexes and left voters assigned to wrong districts, with wrong ballots and otherwise confused about the details of their vote.

But defendants say that the maps were drawn to comply with the state constitution’s “whole county provision,” which provides that counties not be divided when creating a voting district except to the extent required by federal law, and with other requirements set by the state Supreme Court in the Stephenson v. Bartlett cases decided after the 2000 redistricting.

And they claim, in what may be a threshold issue in this case, that the Voting Rights Act required them to create those majority minority districts in order to provide black voters with a roughly proportional and equal opportunity to elect their candidates.

Plaintiffs disagree, saying that the creation of a majority minority district is not necessary in districts where, even though a minority, black voters have already been electing black officials—which had been the case in many districts throughout the state.

“The ability to elect candidates of choice in districts that are less that 50% black means that white voters do not vote sufficiently as a bloc usually to defeat the minority’s preferred candidate,” plaintiffs’ attorneys said in court papers. “Moreover, it means that in the totality of circumstances black voters do not have less opportunity than white voters to elect candidates of their choice.”

Argument is scheduled to begin at 10:00 a.m. on Monday at the N.C. Business Court.

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Sharon McCloskey

Sharon McCloskey, former Courts, Law and Democracy Reporter for N.C. Policy Watch, writes about the courts and decisions that impact North Carolina residents. McCloskey also wrote for Lawyers Weekly and practiced law for more than 20 years. Follow her online at or @sharonmccloskey.