Déjà vu all over again: History looms large in redistricting fight

With threats of lawsuits already flying as redistricting gets under way, North Carolina’s history provides a mirror for illuminating the shape of the debate to come.

To achieve equal representation, the boundaries for congressional as well as state House and Senate districts must be redrawn every 10 years, based on the latest census figures. North Carolina’s thorny redistricting history has produced landmark U.S. Supreme Court decisions by running afoul of both the 14th Amendment’s equal-protection clause (one person, one vote: Thornburg v. Gingles, 1986) and the federal Voting Rights Act (treatment of minority voters: Shaw v. Hunt, 1996).

Tar Heel lawmakers have also compromised the state constitution’s requirement that county boundaries be respected when drawing N.C. House and Senate districts. “Counties can be divided only to the extent necessary to comply with federal law,” Robert Joyce of the UNC School of Government wrote in explaining the N.C. Supreme Court’s 2002 decision in Stephenson v. Bartlett.

As Joyce documents in a 2011 blog post titled “Normal Pattern: Census, Redistricting, Lawsuit,” such challenges are becoming ever more common. After the 1980 census, the Legislature was forced to draw up three different redistricting plans before one of them passed muster with federal judges. In the 1990s, it took four plans. Following the 2000 count, there were five.

And amid the current tug of war, a new round of litigation looks to be in the offing based on, at minimum, minority populations being shifted to a different district.

“From what has been said so far, it appears that at least some of the litigation will focus on race; that is, whether districts have been drawn to diminish or improve the strength of African-American voters,” confirmed Michael Crowell from the School of Government. “It is hard to predict what else might show up in lawsuits. Lawyers have been quite creative the last several rounds of redistricting. After all, this only happens every 10 years, and people have lots of time between redistricting to think of new legal theories.”

Some of that increase may be due to “changes in the reporting of the census data and the introduction of computers to redistricting,” Crowell wrote in an email. Drawing districts has become more sophisticated, he explained, “and as gerrymandering became more precise, and more obvious, people reacted with lawsuits.” The increase in litigation isn’t limited to North Carolina, notes Crowell, a professor of public law and government: It’s a national phenomenon.

What’s a legislature to do?

Gerrymandering means redrawing district lines to benefit the party in power. In Western North Carolina, that charge has been leveled against the new configuration of the 11th Congressional District, which splits both Buncombe County and the city of Asheville.

“When you have the power, it’s difficult to give it up, and now we’ve got the GOP in power. They’ve been waiting for this a long time,” notes Rep. Ray Rapp.

The Mars Hill Democrat is one of four primary sponsors (two Democrats, two Republicans) of HB 824, which aims to create a nonpartisan redistricting process. Instead of North Carolina’s long-standing practice of having legislators themselves draw the district lines, the bill would turn that responsibility over to the Legislative Services Office, which currently handles such matters as drafting bills, evaluating programs and conducting research.

Rapp thinks the bill, which has already passed the House, will become law this session. To his regret, however, it wouldn’t take effect until 2021.

“I’m in favor of this, whether Democrats or Republicans are in power,” Rapp said in a phone interview. “I’d rather do [redistricting] on the basis of population, compactness, continuity. … We need to do it in a very straightforward way, without regard to where incumbents are located.”

“I’ve listened to Republicans,” said the legislative veteran, “and they’ve convinced me that this needs to be a nonpartisan commission, or staff using the Iowa model. I’ve heard this for the nine-and-a-half years I’ve been down there, [and I] came to the conclusion several years ago they were right.”

The Iowa model

Created in 1980, the Iowa model uses a Legislative Service Bureau to handle redistricting. Ironically, Sen. Clark Plexico, a Democrat, proposed the same approach in the N.C. General Assembly back in 1993, but it died in the Democratic legislature’s Rules and Operations Committee.

Since then, at least 23 bills proposing a nonpartisan redistricting process have been introduced in the General Assembly, according to the official website. Three of them were filed in the current, Republican-dominated session. Twenty were put forward under the Democrats between 1993 and 2009, often sponsored by Republicans such as Sen. Tom Apodaca of Hendersonville, Sen. Phil Berger of Eden and Rep. Thom Tillis of Mecklenburg County. Those three are part of the new Republican leadership in Raleigh: Apodaca chairs the powerful Ways & Means Committee, Berger is the Senate’s president pro tempore, and Tillis is speaker of the House. Their names no longer appear in the list of those sponsoring nonpartisan-redistricting legislation.

Basically, these reform bills have all sought the same thing — a constitutional amendment that would turn the process over to a nonpartisan Independent Redistricting Commission or its equivalent. The bills have also called for:
• Avoiding elongated and irregularly shaped districts;
• Adhering to the one-person, one-vote mandate;
• Minimizing the number of split counties, municipalities and other communities of interest.

Would it work?

But if HB 824 or a similar bill passes, will it really achieve its intended purpose?

“A nonpartisan redistricting commission or similar approach might reduce the political aspects but will not eliminate them,” Crowell asserts. He acknowledges, however, that supporters “believe it would focus less on straight party advantage and give more weight to geography, historical alignments, keeping counties together, not dividing cities, compactness and other neutral factors.” Another outcome, he added, could be giving “greater voice to independent voters, who now make up 24 percent of registered voters in the state.”

Crowell also stresses that it’s hard to predict how districts will perform over a decade. “Remember that the current legislative districts [that] have given Republicans a clear majority were drawn by Democrats,” he cautions. “North Carolina is a changing state, and fewer and fewer voters seem tied to either major party, making it hard to be sure how folks are going to vote four, six years from now.”

— Nelda Holder can be reached at nfholder@gmail.com.

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