by Diane Rufino, September 29, 2019
We’ve been hearing a lot about “redistricting” lately. In fact, we heard that a state court invalidated two of the popularly-mandated (that is, approved by voters in 2016) amendments to the state constitution (the one adding a photo ID requirement to vote and the other capping the state income tax at 7.5%) on the grounds that the bills giving rise to the amendments were the illegal products of an illegitimate NC General Assembly. The body was claimed to be “illegitimate” because several representatives were supposedly elected pursuant to improperly racially-gerrymandered district maps.
So what are we referring to when we talk about “redistricting”?
Redistricting is the process by which new congressional and state legislative district boundaries are drawn. Each of North Carolina’s 13 United States House representatives and 170 state legislators [120 for the House and 50 for the Senate] are elected from political divisions called districts. United States senators are not elected by districts, but by the states at large. District lines are redrawn every 10 years following completion of the United States census. The federal government stipulates that districts must have nearly equal populations and must not discriminate on the basis of race or ethnicity.
I. WHERE WE STAND (After Several Court Opinions) —
(1) On June 27, 2019, the Supreme Court of the United States issued its opinion in Rucho v. Common Cause, finding that partisan gerrymandering claims, such as that made against North Carolina’s congressional district plan, present political questions that fall beyond the jurisdiction of the federal judiciary. As part of its ruling, the high court overturned a district court ruling that had struck down the state’s congressional district plan as an impermissible partisan gerrymander. The case was remanded back to the state court system.
(2) On September 3, 2019, in the case Common Cause v. David Lewis, a state court struck down North Carolina’s legislative district plan as an impermissible partisan gerrymander under the state constitution. Did you know that the state constitution requires districts to be drawn in a non-partisan manner? Clearly, those Democrats who were in power for over 110 years in the state, and who took their oaths to support the constitution, did not know it. Or if they did, they chose to violate those “apparent” provisions. Following the lead of a court in Pennsylvania which held that redistricting maps must be drawn on a non-partisan basis, the group Common Cause filed suit in North Carolina to challenge the 2017 redistricting maps drawn by a Republican-dominated General Assembly as being violative of the state constitution and its requirements for non-partisanship in elections.
Common Cause, a non-profit organization that claims to be “non-partisan,” was under the leadership of Robert Reich, former Secretary of Labor in the Clinton Administration and a rabid socialist, for 5 years – from 2013-2018.
Here are the state constitutional provisions that Common Cause referred to in their challenge to the 2017 redistricting maps:
The NC state constitution provides, in Article I (“Declaration of Rights”):
Article I, § 14 reads: “Freedom of Speech and Press. Freedom of speech and of the press are two of the great bulwarks of liberty and therefore shall never be restrained, but every person shall be held responsible for their abuse.” [Referred to in court rulings and in this article as the “Freedom of Speech” Clause of the NC state constitution].
Article I, § 12 reads: “Freedom of Assembly and Redress. The people have a right to assemble together to consult for their common good, to instruct their representatives, and to apply to the General Assembly for redress of grievances; but secret political societies are dangerous to the liberties of a free people and shall not be tolerated.” [Referred to in court rulings and in this article as the “Freedom of Assembly” Clause of the NC state constitution].
The NC General Court of Justice, Superior Court Division, Raleigh agreed with Common Cause. In their unanimous conclusion, issued earlier this month on September 3, the 3-member panel of judges (Judges Paul Ridgway, Joseph Crosswhite, and Alma Hinton) wrote:
The Freedom of Speech Clause in Article I, § 14 of the North Carolina Constitution provides that “freedom of speech and of the press are two of the great bulwarks of liberty and therefore shall never be restrained.” The Freedom of Assembly Clause in Article I, § 12 provides, in relevant part, that “the people have a right to assemble together to consult for their common good, to instruct their representatives, and to apply to the General Assembly for redress of grievances.” The 2017 Plans, therefore, violate the North Carolina Constitution’s guarantees of free speech and assembly, irrespective of whether the plans violate the U.S. Constitution. [pp. 317-318]
North Carolina’s Constitution Protects the Rights of Free Speech and Assembly Independently from the Federal Constitution. The NC Supreme Court has held that “in construing provisions of the Constitution of North Carolina is not bound by opinions of the Supreme Court of the United States construing even identical provisions in the Constitution of the United States.” The NC Supreme Court has further held that the North Carolina Constitution’s Free Speech Clause provides broader rights than does federal law. In particular, the Court has held that the North Carolina Constitution affords a direct cause of action for damages against government officers in their official capacity for speech violations, even though federal law does not. [pg. 318]
In 2017, the US Supreme Court wrote: “By packing and cracking Democratic voters to make it harder for them to translate votes into legislative seats, the 2017 Plans “single out a subset of messages for disfavor based on the views expressed. This is the essence of viewpoint discrimination.” Matal v. Tam, 137 S. Ct. 1744, 1766 (2017, Kennedy concurring). NC Republican legislators (defendants) drew the 2017 Plans in a way that deliberately minimized the effectiveness of the votes of citizens with whom they disagree (ie, Democrats). [pg. 326]
Question: Isn’t the historically accepted exercise of re-districting by the political party in power to “minimize the effectiveness of votes cast by citizens with whom they disagree”? I think everyone has come to accept this as the permissible consequence of election outcomes. “Elections have consequences.” How many times have we heard this? The Supreme Court itself has made this statement in its opinions.
In their opinion, and as they wrote, “it is the carefully-crafted maps, and not the will of the voters, that dictate the election outcomes in a significant number of legislative districts and, ultimately, the majority control of the General Assembly.”
The judges concluded that the 2017 Redistricting Plan violate the Freedom of Speech and Assembly Clauses by discriminating on the basis of viewpoint. They went on to conclude that the Plans violate the Clauses for an independent reason. “In addition to forbidding discrimination, those clauses also bar retaliation based on protected speech and expression.” [pg. 329]. Furthermore, they concluded that “partisan gerrymandering claims are justiciable under the North Carolina Constitution” (pg. 341).
They ultimately concluded and ruled: “There is no reasonable doubt the 2017 House and Senate Plans are unconstitutional under the North Carolina Constitution, and the Court enjoins their use in the 2020 primary and general elections…..” (pg. 347)
The ruling went on to require:
“The Court will require that Remedial Maps for the House and Senate legislative district maps for the 2020 election (hereinafter “Remedial Maps”) be drawn (within 2 weeks), and that the Remedial Maps comply with the criteria adopted by the General Assembly’s House and Senate Redistricting Committees on August 10, 2017, with several exceptions, including the following:
(1) In redrawing the relevant districts in the Remedial Maps, the invalidated 2017 districts may not be used as a starting point for drawing new districts.
(2) “Election Data” criteria shall not be permitted in the drafting of the Remedial Maps. In other words, partisan considerations and election results data shall not be used in the drawing of legislative districts in the Remedial Maps. The Court likewise will prohibit any intentional attempt to favor voters or candidates of one political party.
(3) The Court will require Legislative Defendants and their agents to conduct the entire remedial process in full public view. At a minimum, that would require all map drawing to occur at public hearings, with any relevant computer screen visible to legislators and public observers. Given what transpired in 2017, the Court will prohibit Legislative Defendants (ie, Republican legislators) and their agents from undertaking any steps to draw or revise the new districts outside of public view.”
**** Reference:: Opinion of the NC General Court of Justice, Superior Court Division, Raleigh (September 3, 2019), which is 348 pages in length – https://big.assets.huffingtonpost.com/athena/files/2019/09/03/5d6ec7bee4b0cdfe0576ee09.pdf
The new maps were drawn up on September 17. They were reviewed and ratified by a court-appointed referee the same day. The non-partisan house legislative plan and map was ratified as H.B. 1020 and the non-partisan senate legislative plan and map was ratified as S.B. 692.
(3) North Carolina’s House of Representatives comprises 120 districts; North Carolina’s State Senate comprises 50 districts. The responsibility for drawing both congressional and state legislative district lines lies with the state legislature (NC General Assembly). District maps cannot be vetoed by the governor.
II. THE LEGAL REQUIREMENTS FOR DRAWING UP DISTRICT MAPS FOR ELECTIONS
As we all know, there are two general types of elections in our country – federal elections and state elections. The US Constitution and federal law provide the legal guidelines and requirements for drawing up districts for federal elections (ie, for US congressional districts). The state constitution and state laws provide the legal guidelines and requirements for state elections (for state house and senate districts).
A. FEDERAL ELECTIONS & FEDERAL LEGISLATIVE REDISTRICTING —
According to Article I, Section 4 of the US Constitution, the states and their legislatures have primary authority in determining the “times, places, and manner” of congressional elections. Congress may also pass laws regulating congressional elections.
The US Constitution provides:
“The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of choosing Snators.” [Article I, Section 4]
Article I, Section 2 of the United States Constitution stipulates that congressional representatives be apportioned to the states on the basis of population. There are 435 seats in the United States House of Representatives. Each state is allotted a portion of these seats based on the size of its population relative to the other states. Consequently, a state may gain seats in the House if its population grows or lose seats if its population decreases, relative to populations in other states.
In 1964, the US Supreme Court ruled in Wesberry v. Sanders that the populations of House districts must be equal “as nearly as practicable.” This is where we get the general rule “One Person, One Vote.” In fact, the equal population requirement for congressional districts is strict. Any district with more or fewer people than the average, representing even a 1 percent deviation, will most likely be unconstitutional.
B. STATE LEGISLATIVE REDISTRICTING —
The US Constitution is silent on the issue of state legislative redistricting. However, in the mid-1960s, the US Supreme Court issued a series of rulings in an effort to clarify standards for state legislative redistricting. In Reynolds v. Sims, the court ruled that “the Equal Protection Clause [of the 14th Amendment] demands no less than substantially equal state legislative representation for all citizens, of all places as well as of all races.”
The following is a list of recent redistricting bills that have been introduced in or passed by the North Carolina state legislature.
NC H717 – Judicial Elections Changes. “An Act to revise the judicial divisions; to make certain adjustments to the assignment of counties to the superior court, district court, and prosecutorial districts; to clarify listing of judicial seats on the ballot; and to limit rotation of superior… “ 6/28/2018: Ch. SL 2018-121
NC S209 – Nonpartisan Redistricting Commission. “An Act to establish a nonpartisan redistricting process……” 6/21/2018: Re-ref Com On Rules and Operations of the Senate
NC H927 – 2017 House Redistricting Plan A2. “An Act to realign the districts for the election of the members of the North Carolina house of representatives…..” 8/31/2017: Ch. SL 2017-208
NC S691 – 2017 Senate Floor Redistricting Plan (4th Ed.) “An Act to realign the districts for the election of the members of the North Carolina Senate…..” 8/31/2017: Ch. SL 2017-207
NC S692 – Adjourn August Redistricting Session & Reconvene. “A JOINT RESOLUTION adjourning the session reconvened pursuant to Section 2.1 of Resolution 2017-12, as amended by resolution 2017-14, and further amending RESOLUTION 2017-12.” 8/31/2017: Ch. Res 2017-15
NC H677 – Amend Who Can Serve on Three-Judge Panel. “An Act to provide that district court judges may be appointed to serve on three-judge panels for actions challenging the validity of Acts of the General Assembly…..” 4/21/2017: Passed 1st Reading
NC H735 – Redistricting by Computer. “An Act to amend the North Carolina constitution to establish an independent redistricting commission to redistrict via computer software programs utilizing politically neutral criteria to district….. “ 4/13/2017: Ref To Com On Rules, Calendar, and Operations of the House
NC H674 – Independent Redistricting Commission. “An Act to amend the constitution to establish an independent redistricting commission…..” 4/11/2017: Ref To Com On Rules, Calendar, and Operations of the House
NC H714 – Fair Redistricting Study Committee. “An Act to create the Joint Legislative Study Committee on Fair Redistricting……” 4/11/2017: Ref To Com On Rules, Calendar, and Operations of the House
NC S554 – Fair Redistricting/Postmark & Absentee Ballots. “An Act to create the Joint Legislative Study Committee on Fair Redistricting and to provide that absentee ballots received by a county board of elections by mail on the day after the election that are not postmarked are deemed to have been postmarked……” 4/3/2017: Ref To Com On Rules and Operations of the Senate
NC H200 – Nonpartisan Redistricting Commission. “An Act to establish a nonpartisan redistricting process…..” 2/28/2017: Ref To Com On Rules, Calendar, and Operations of the House
Up until the case Common Cause v. David Lewis, no mention had been made of any state constitutional requirements to the process of state legislative redistricting. Litigation using this approach is just another desperate act of a dying political party to protect any power possible at the ballot box (power denied to Republicans for over 110 years). The Common Cause case, being unanimous in its opinion, opens a whole new line of litigation in the national battle over partisan gerrymanders.
Bob Phillips, executive director of Common Cause of North Carolina had this to say about the court ruling: “The court has made clear that partisan gerrymandering violates our state’s constitution and is unacceptable. Thanks to the court’s landmark decision, politicians in Raleigh will no longer be able to rig our elections through partisan gerrymandering.”
Here is an interesting question: If the NC state constitution requires non-partisan state legislative districts, as Common Cause and Democrats allege, why did the NC General Assembly feel the need to pass the 2017 law, NC H674. NC H674 (“Independent Redistricting Commission”) was intended to amend the NC constitution to establish an independent redistricting commission in order to guide the Senate Redistricting Committee in designing redistricting plans to ensure they are as non-partisan as possible.
III. THE STATUS OF NC HOUSE and SENATE REMEDIAL DISTRICT MAPS —
Pursuant to the Common Cause v. David Lewis ruling of September 3 and its order to draw up new, non-partisan maps, the NC General Assembly, under the watchful eye and subject to approval of a court-appointed referee, adopted remedial maps on September 17. The non-partisan house legislative plan/map was ratified as H.B. 1020 and the non-partisan senate legislative plan/map was ratified as S.B. 692.
Republican leaders declined to challenge and appeal the ruling.
Speaking for the Republican members of the General Assembly, Senate leader Phil Berger said in a statement to Charlotte-based station WBTV: “The decision contradicts the Constitution and binding legal precedent…. Nearly a decade of relentless litigation has strained the legitimacy of this state’s institutions, and the relationship between its leaders, to the breaking point. It’s time to move on. To end this matter once and for all, we will follow the court’s instruction and move forward with adoption of a nonpartisan map.”
The reason for the decision not to challenge the ruling may be two-fold: First, under the new maps, the Republican party will continue to control a majority of both chambers of the General Assembly. And second, if Republicans had decided to appeal, there is really a good chance that the ruling would stand, given that Democrats control North Carolina’s Supreme Court.
Voters are urged to contact their county Boards of Election, or to review the maps provided by the General Assembly (online, see the Reference section for the links) to confirm which state districts they have been assigned to for the 2020 primaries and the 2020 general election.
IV. POTENTIAL LEGAL CHALLENGE to the VOTING RIGHTS ACT of 1965 —
I think the climate is ripe for a legal challenge to Section 2 of the Voting Rights Act of 1965. Essentially, Section 2 mandates that district lines cannot be drawn in such a manner as to “improperly dilute minorities’ voting power.”
Section 2 of the Voting Rights Act of 1965 reads:
SEC. 2. No voting qualification or prerequisite to voting, or standard, practice, or procedure shall be imposed or applied by any State or political subdivision to deny or abridge the right of any citizen of the United States to vote on account of race or color.
In 1982, Congress examined the history of litigation under Section 2 since the bill’s passage and concluded that Section 2 should be amended to provide that a plaintiff could establish a violation of the section if the evidence established that, in the context of the “totality of the circumstance of the local electoral process,” the standard, practice, or procedure being challenged had the result of denying a racial or language minority an equal opportunity to participate in the political process.
First of all, the language of Section 2 is constitutionally vague, and has been so, under our political system. The truth is that African-Americans have been, and continue to be, almost completely identified with the Democratic Party. It is said that approximately 90% of African-Americans identify with the Democratic Party, if not higher. And so I say that the language of Section 2 is constitutionally vague because it assumes that any standard, practice, or procedure related to voting that affects African-Americans does so specifically and only because of the color of their skin. It makes no room for the possibility that a particular law, practice, procedure, standard, etc that affects them has the goal of addressing a political party or political views, just as it would affect others of the same political persuasion, and NOT to affect them because of their skin color. A “just” law must make room for legitimate reasons for its passage.
And so, I believe Section 2 should be amended accordingly.
Section 2 should be amended to provide that a plaintiff could establish a violation of the section if the evidence established that, in the context of the “totality of the circumstance of the local electoral process,” the standard, practice, or procedure being challenged had the primary or sole purpose, as well as the intended objective, to deny a racial or language minority an equal opportunity to participate in the political process.
Second of all, Section 2 provides a strong incentive to perpetuate racial stereotypes and racial victimization (ie, the “race card”) in voting.
Third, it offers a tremendous legal protection to the Democratic Party.
Here is my concern. The Voting Rights Act was drafted and passed to protect the voting rights of African-Americans. This was the piece of legislation specifically designed to address the many violations of African-American voting rights, as recognized and secured by the 15th Amendment. In fact, in 1980, the Supreme Court held that Section 2, as originally enacted by Congress in 1964, was a restatement of the protections afforded by the 15th amendment. [See Mobile v. Bolden, 446 U.S. 55 (1980)]. Under that standard, a plaintiff had to prove that the standard, practice, or procedure was enacted or maintained, at least in part, by an invidious purpose.
As mentioned earlier, at least approximately 90% of African-Americans identify with the Democratic Party. So in effect, because Section 2 protects African-Americans unconditionally, it protects the interests of the Democratic Party outright. Now, the over-all goal of re-districting, at least in our current time, is NOT to suppress black voting OR to give blacks special protection. It is race-neutral. It is concerned with party affiliation only. Only a moron would think otherwise. Yet that’s the position that Democrats and African-Americans routinely take. They take the position not because they know it to be true but because it’s politically expedient. They know that race matters; they know that racial challenges are taken seriously. They know that lawyers being turned out of today’s liberal law schools are indoctrinated in social justice and see it everywhere – even when it doesn’t exist. The true goal of re-districting is to draw up district maps in a way that favors the election of the reigning political party. “Elections Have Consequences.” Maps can be re-drawn by Republicans to disfavor registered Democrats and to favor Republicans, and that would theoretically be allowed. Similarly, if Democrats have the majority in General Assembly, they too can re-district to favor their party. And they have, when they were in power. This practice has been an accepted one since the end of the 1700’s.
But look at the situation through the lens of Section 2. If Republicans re-district and the group of voters (registered Democrats) affected happen to be white, then no harm no foul. The re-districting is permissible. The disgruntled white Democrats have no recourse. But if those same registered Democrats just happen to have black skin, then it’s a whole different ballgame, right? Suddenly they have a cause of action under Section 2. They immediately have a cause of action. They can sue the government body; they can challenge the restricted maps as being impermissible gerrymandering, And chances are that they will be successful in court.
But the truth is this: Republicans are not looking at skin color at all – only political party affiliation. Democrats are Democrats. A white vote for a Democratic candidate is no different from a black vote for a Democratic candidate. And so Section 2 of the Voting Rights Act, although passed for an honorable and a neutral purpose, as applied since the 1960s it is a strong legal tool that benefits only one political party – the Democratic Party. And so it is used exactly as such – as a legal tool to advance party interests.
Regarding Section 2 of the Voting Rights Act, I believe it is ripe for a legal challenge. In the alternative, the US Congress can alter its language, as suggested above. The purpose of the challenge or the amending of language must be to get rid of Section 2 as a political tool of the Democratic Party and to get rid of the baseless claims made for no other reason than to undermine the Republican Party or to perpetuate the false notion that racism exists insidiously in our country today.
“Redistricting in North Carolina,” Ballotpedia. Referenced at: https://ballotpedia.org/Redistricting_in_North_Carolina
Rucho v. Common Cause (decision: June 27, 2019), Supreme Court Opinion. Referenced at: https://www.supremecourt.gov/opinions/18pdf/18-422_9ol1.pdf
Case Review, Rucho v. Common Cause (decision: June 27, 2019). Referenced at: https://ballotpedia.org/Rucho_v._Common_Cause
Rucho v. Common Cause (August 27, 2018), ruling from the District Court for the Middle District of North Carolina (lower federal court). Referenced at: https://electionlawblog.org/wp-content/uploads/MDNC-Opinion.pdf
Common Cause v. David Lewis (judgement, Sept. 3, 2019), NC General Court of Justice, Superior Court Division – Wake County. Court ruling referenced at: https://big.assets.huffingtonpost.com/athena/files/2019/09/03/5d6ec7bee4b0cdfe0576ee09.pdf
Brennan Center for Justice, “A Citizen’s Guide to Redistricting,” Brennan Center for Justice. Referenced at: http://www.brennancenter.org/sites/default/files/legacy/CGR%20Reprint%20Single%20Page.pdf
“Redistricting Cases Heard by the Supreme Court of the United States,” Ballopedia. Referenced at: https://ballotpedia.org/Redistricting_cases_heard_by_the_Supreme_Court_of_the_United_States
House Bill 1020 (H.B. 1020), “2019 House Remedial Plan.” (Ratified Sept. 17, 2019). Referenced at: https://ncleg.gov/BillLookUp/2019/H1020
Remedial House Map (Non-Partisan Map) of Sept. 17, 2019 – https://webservices.ncleg.net/ViewBillDocument/2019/6558/0/HB%201020,%202nd%20Edition%20-%20HB%201020%202nd%20Edition
Senate Bill 692 (S.B. 692), “2019 Senate Consensus Nonpartisan Map.” (Ratified Sept. 17, 2019). Referenced at: https://ncleg.gov/Sessions/2019/Bills/Senate/PDF/S692v4.pdf
Remedial Senate Map (Non-Partisan Map) of Sept. 17, 2019 – https://webservices.ncleg.net/ViewBillDocument/2019/6583/0/SB%20692,%202nd%20Edition%20-%20Senate%20Consensus%20Nonpartisan%20Map%20v3_11x17
APPENDIX I: GERRYMANDERING
The term “Gerrymandering” refers to the practice of drawing electoral district lines to favor one political party, individual, or constituency over another. When used in a rhetorical manner by opponents of a particular district map, the term has a negative connotation but does not necessarily address the legality of a challenged map. The term can also be used in legal documents; in this context, the term describes redistricting practices that violate federal or state laws.
The phrase “Racial Gerrymandering” refers to the practice of drawing electoral district lines to dilute the voting power of racial minority groups. Federal law prohibits racial gerrymandering and establishes that, to combat this practice and to ensure compliance with the Voting Rights Act, states and jurisdictions can create majority-minority electoral districts. A majority-minority district is one in which a racial group or groups comprise a majority of the district’s populations. Racial gerrymandering and majority-minority districts are discussed in greater detail in this article.
The phrase “Partisan Gerrymandering” refers to the practice of drawing electoral district maps with the intention of favoring one political party over another. In contrast with racial gerrymandering, on which the Supreme Court of the United States has issued rulings in the past affirming that such practices violate federal law, the high court had not, as of November 2017, issued a ruling establishing clear precedent on the question of partisan gerrymandering. Although the court has granted in past cases that partisan gerrymandering can violate the United States Constitution, it has never adopted a standard for identifying or measuring partisan gerrymanders.
There is more information on Gerrymandering at this link – https://ballotpedia.org/Gerrymandering#Partisan_gerrymandering