Federal court appoints special master to decide if NC racial gerrymanders remain unconstitutional

By: - October 26, 2017 4:07 pm

Stanford Law School professor Nathaniel Persily

This story was updated at 6 p.m. to reflect GOP lawmakers’ response.

A federal court has found it to be likely that lawmakers did not remedy unconstitutional racial gerrymanders in nine state House and Senate districts, and has appointed a special master to help it make a final determination.

Stanford Law School professor Nathaniel Persily will “assist the Court in further evaluating and, if necessary, redrawing the [districts in question] by developing an appropriate plan remedying the constitutional violations,” according to an order filed Thursday.

The Senate districts are 21, in Hoke County, and 28, in Guilford County. The House districts are 21, in Sampson and Wayne counties, 36, 37, 40, 41, in Wake County, 57, in Guilford County and 105 in Mecklenburg County.

The three-judge panel in North Carolina v. Covington wrote that, after careful review, it is concerned that the nine districts “either fail to remedy the identified constitutional violation or are otherwise legally unacceptable.” The judges comprising the panel are U.S. District Court Judge Catherine Eagles and 4th Circuit Court of Appeals Judge James Wynn, both appointed by former President Barack Obama, and U.S. District Court Judge Thomas Schroeder, who was appointed by George W. Bush.

Neither Senate President Pro Tem Phil Berger nor House Speaker Tim Moore responded to a request for comment. The respective chairmen of the House and Senate redistricting committees, Rep. David Lewis (R-Harnett) and Sen. Ralph Hise (R-Mitchell) released a joint statement about the court’s order.

“Similar to this same federal court’s order for a special election in North Carolina that the U.S. Supreme Court reversed, this unusual and vague order provides absolutely no legal or factual basis for objecting to the new maps, while also potentially delegating the legislature’s constitutional authority to draw districts to a lone professor in California with no accountability to North Carolinians,” they said.

They reiterated that lawmakers did not use race as a factor when drawing the new maps and said their work product split fewer counties, towns and precincts than any map in the state’s recent history.

“We are exploring all our legal options,” they added.

Anita Earls, Executive Director of the Southern Coalition for Social Justice and lead attorney for the plaintiffs in the Covington case, said they are hopeful the process will result in fair districts for all North Carolinians.

“It has been shown time and again that the state legislature refuses to draw fair districts that comply with the law,” she stated in an email.

The plaintiffs challenged 12 districts in the remedial maps that lawmakers submitted to the court. They alleged federal and state constitutional violations and filed remedial alternative maps that the court also considered.

The districts they challenged that the court did not address in its Thursday order are House district 10, in Greene, Wayne and Johnston counties, and House district 83 in Cabarrus County.

Persily has previous experience as a special master or court-appointed expert in at least five cases, according to his résumé. They were in New York (twice), Georgia, Connecticut and Maryland, and in four of the cases, his newly drawn maps were adopted.

He also was hired as a redistricting consultant in Maryland and Puerto Rico.

The court offered both parties in Covington a chance to consult with each other and submit the names of three potential special masters, but they could not agree.

In its Thursday order, the court wrote that the parties have two business days to file an objection to Persily’s appointment (if there are grounds to believe he has a conflict of interest). Whomever objects is also asked to file the name and résumé of an alternative candidate with similar qualifications, and the party who does not object has one business day to respond and can also submit an alternative candidate.

Lewis and Hise criticized the time allotted by the court to object to Persily’s appointment.

“Being provided only two days to respond to such a strange order that could seize a fundamental right from the people of North Carolina and hand it to a single person on the other side of the country is an outrageous and extraordinary violation of the principles of federalism and our state’s sovereignty,” they said.

The court plans on entering a separate order at a later time with more information about Persily’s appointment, as well as scheduling and housekeeping matters.

The state of North Carolina will foot the bill for “all reasonable costs and expenses of the special master, including compensation of the special master, his research assistants, and any other assistant or advisor he may retain.”

Persily has agreed to be compensated $500 per hour for his time, which is approximately half his hourly rate, according to the court order.

North Carolina Democratic Party Chair Wayne Goodwin called the court’s order a “stunning rebuke of Republican legislators who refused to fix their racist maps.”

“They had a chance to fix their maps and doubled down instead – and now the courts will fix it for them,” he wrote in a statement.

Ford Porter, spokesman for Gov. Roy Cooper echoed those sentiments.

“Legislative leaders had an opportunity to fix their unconstitutional legislative maps,” he wrote in a statement. “Instead they dragged their feet, held sham hearings, and passed new maps intended to rig elections in their favor. Today’s announcement that the court has appointed a Special Master who could redraw legislative districts is a positive step to ensuring fair elections in North Carolina.”

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