Race, courts and twisted districts

By: - January 11, 2016 12:48 pm


Few of the decisions made by the men and women of our General Assembly are so prone to self-serving, partisan abuse as the setting of boundaries for voting districts. When legislators yield to that temptation, it’s inescapable that the rights of some voters to have a fair, equal voice in elections are trampled into the dirt.

We are now into the third decade of high-stakes legal battles over the constitutionality of North Carolina’s periodic exercises in what’s known as redistricting. If the U.S. Supreme Court were the parents of unruly children rough-housing in the basement, it would be long past the time when the warning went out: “Don’t make us come down there!” But this year may provide the moment when those fed-up “parents” go clomping down the stairs.

The shape of voting districts is a sensitive, consequential issue because it plays such a big role in determining who gets elected to our representative bodies of government, and thus who has the inside track in passing laws and setting policies.

In North Carolina, the Republican Party has held that inside track ever since its victories in the 2010 elections – as part of a national pushback against first-term President Obama – gave it the power to reconfigure legislative and congressional districts in keeping with that year’s census.

The party’s legislative leaders undertook an aggressive district remapping calculated to boost its candidates while marginalizing Democrats. The strategy worked. In 2012 and 2014, Republicans captured large majorities in the legislature and the state’s congressional delegation, even in the face of healthy Democratic vote totals.

Democratic politicians, playing their own brand of hardball, had used some of the same tricks when they had the chance. This time, however, the Republicans faced an inconvenient truth: Many of the Democratic voters whose voices were being muffled were African-American. And under the nation’s hard-won civil rights laws, racial minorities are supposed to be protected from measures that would deprive them of a fair say at the polls.

Supreme scrutiny

So the redistricting chiefs found themselves in court, answering lawsuits filed by civil rights and social justice advocates. The essence of the complaint was that many black voters had been packed into a relatively small number of painstakingly drawn districts – thereby purging the surrounding districts of voters who tend to support Democrats.

Yes, the predominantly black districts would likely elect black candidates. But African-Americans’ overall influence would be diminished as Republicans, typically white conservatives, rolled up victory after victory in the larger number of districts that remained.

A panel of three state trial judges was the first to consider the challenges. It found no fault with the redistricting scheme. In late 2014 the state Supreme Court agreed. The court’s Republican-majority makeup made the ruling somewhat less than a surprise, although a dissent by Democratic justices signaled that the plaintiffs had scored important points.

Along came the U.S. Supreme Court, which has had to sort out several North Carolina redistricting puzzles. In April of last year, the high court told the state Supremes to take another look at the case. This was on the heels of a ruling to the effect that a similar Republican-engineered redistricting plan in Alabama amounted to an unconstitutional racial gerrymander.

The court in Raleigh went back to work, after its fashion. It heard another round of arguments in August. The decision came on Dec. 18, in an opinion written by Justice Paul Newby and joined by his three Republican colleagues. There was nothing amiss with his court’s previous ruling, Newby concluded, and the Alabama case wasn’t a problem. He might as well have told the nation’s top court to take a hike.

In dissent, Justice Cheri Beasley (a Democrat) argued that the state Supreme Court should have taken the cue from Washington and explored the issue more thoroughly. The three-judge panel that originally signed off on the current districts should have been told to intensify its fact-finding, Beasley wrote, and should have been given a chance to “get it right” in light of the Alabama decision.

In particular, she said, the panel should have been instructed to drill more deeply into the role that race played in the drawing of several districts tagged by plaintiffs as having been impermissibly packed with black voters.

If race indeed was a predominant factor in deciding which voters would be included in those districts, Beasley asserted, then the legislators who drew the maps should have had to meet the high legal standard that the Supreme Court has said must accompany race-based classifications if they are to pass constitutional muster. The redistricting plans would have to be “narrowly tailored” to achieve a compelling public interest. Beasley, in her opinion joined by Democratic justices Robin Hudson and Sam Ervin IV, didn’t hide her skepticism as to whether the plans met that standard.

21 and counting

The Republican-drawn maps relied heavily on two approaches that ended up concentrating black voters in a limited number of districts. First, they created districts in which African-American voters were in the majority – at least half of the voters, plus one. Second, they aimed to draw districts in such a way that the number of black office-holders would be proportionate to the black voter population, which stands at about 21 percent of the state’s total.

The rationale – and a cynical one it was – is that the state thus could defend itself against any challenges brought under the federal Civil Rights Act that it had not given black citizens a fair chance to elect candidates of their choice.

Plaintiffs in the current lawsuit, including the state chapters of the NAACP and the League of Women Voters, would say that a redistricting plan under which African-Americans are expected to win 21 percent of the available seats while they lose influence in other, far more numerous districts amounts to winning the battle while losing the war.

When their appeal goes back to the Supreme Court in Washington, they’ll understandably hope that Justice Stephen Breyer and his four colleagues who last year threw out the Alabama redistricting scheme will side with Cheri Beasley in finding North Carolina’s response to the Alabama ruling to have been inadequate.

Rightward ho

When one party or the other skews districts to its advantage, the consequences can be profound. In North Carolina the Republican Party has been able to lock in an overwhelming legislative majority for the last three years.

That period has seen a dramatic shift toward the right across a range of policies, including budgets and taxes, business regulation and higher education. Many legislators will reclaim their seats in the election next fall without an opponent because running against an incumbent in a gerrymandered district is seen as an impossible task.

It falls to the courts to decide whether legislators, in their redistricting process, have been carried away by partisan zeal to the point where some voters’ rights have been violated.

No wonder, then, that seats on the state Supreme Court are now so vigorously contested, with ideologically driven interest groups spending unprecedented sums to boost candidates whom they see as being in sync with their views.

Judges of course are supposed to follow the law, not their own policy preferences. But it was telling when, in 2012, Republican groups propelled Newby to victory on the strength of an expensive burst of late-campaign TV ads. His win meant a Republican majority on the court.

The party’s legislative agenda is almost guaranteed to provoke legal challenges that are destined for review by the state’s highest court. Not surprisingly, more money is being spent to influence judicial elections. According to the Brennan Center for Justice, North Carolina’s 2014 judicial campaigns were the second-most expensive in the country. The flow of money came after the legislature scrapped North Carolina’s cutting-edge system of public campaign financing for seats on the appellate courts. Obviously, the thinking was that Republican candidates for judgeships would benefit.

The Supreme Court’s partisan divide today is 4-3, Republicans over Democrats. It perhaps has to be taken as a given that some rulings will comport with justices’ ideology as they view the law through that lens.

But it should be troubling when we see Republican legislators enacting laws that then are routinely upheld by Republican-controlled courts, whose members owe their election in considerable degree to campaign funders aligned with the party.

It’s even more troubling when those laws are enacted in pursuit of an agenda that favors the wealthy, the well-connected and the privileged at the expense of ordinary people trying to improve their lives and the lives of their children. The Council of Churches joins those who look to the U.S. Supreme Court to throw the brakes on a redistricting process that lies at the heart of this misapplication of partisan power.

Steve Ford, former editorial page editor at Raleigh’s News & Observer, is now a Volunteer Program Associate at the North Carolina Council of Churches.

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Steve Ford
Steve Ford

Steve Ford, former editorial page editor at Raleigh’s News & Observer, wrote this commentary for the North Carolina Council of Churches, which was first to publish it at www.ncchurches.org.