NC judges won’t block primary election preparation over redistricting cases

·5 min read

North Carolina can proceed with its filing period and preparations for the March primary after a three-judge panel refused to block new congressional and legislative maps approved by state lawmakers last month.

The plaintiffs in the case have already filed notice that they will appeal the judges’ decision.

Democratic groups filed two challenges to the maps, arguing Friday that they represent unconstitutional partisan gerrymanders designed to entrench Republican majorities among the state’s U.S. House delegation and in the General Assembly.

The state judges heard both cases Friday at the Wake County Courthouse. Candidate filing opens Monday.

In their opinion, they said the state constitution leaves redistricting to an inherently political body — the state legislature — and that citizens have not changed that through the years despite recognizing “it results in an ill that has affected this county and state since Colonial times.”

And, citing the Supreme Court’s 2002 decision in Stevenson, the judges said that “partisan advantage can be taken into account” when redrawing districts.

“Given the inherent political nature of redistricting, we cannot read that permission by Stevenson as narrowly as the plaintiffs would have us do so. To the extent the plaintiffs have proven extreme partisan gerrymandering, our ruling should not be construed as condoning such, only that we have a reasonable doubt on these facts as to whether these acts of the General Assembly are unconstitutional,” Judge A. Graham Shirley said.

The Stevenson ruling says “the General Assembly may consider partisan advantage and incumbency protection in the application of its discretionary redistricting decisions.”

The plaintiffs, led in one case by the North Carolina League of Conservation Voters, argued that the maps were drawn to entrench Republican majorities in the congressional delegation and statehouse regardless of any realistic statewide election results.

They said the maps approved this year — on party-line votes — fall outside the standard established in the 2002 case and are more in line with later cases, including a 2019 case that led to redraw for the 2020 elections.

“When partisan actors are specifically systematically designing, manipulating the contours of election districts for partisan gains or to preserve power that elections aren’t free under that circumstance, elections aren’t free in clearly ascertaining the will of the people,” said attorney Elizabeth Theodore, who argued in the second challenge named for plaintiff Rebecca Harper.

Outside analysis of the new U.S. House districts indicate that Republicans hold the edge in 10 of the 14 districts with one being a pure toss-up. Similar analysis of the state’s House and Senate districts indicate they are expected to produce strong Republican majorities in most cycles with a clear path to super majorities.

Republican Donald Trump carried the state with 49.9% of the vote to Democrat Joe Biden’s 48.5% of the vote in the 2020 presidential election. Republican Sen. Thom Tillis won re-election with 48.6% of the vote, while Democratic Gov. Roy Cooper won re-election with 51.5% of the vote. The results are consistent with recent statewide elections which show North Carolina as an evenly divided state.

The race for chief justice of the Supreme Court was decided by 401 votes. Republicans hold solid majorities — though not super majorities capable of overriding gubernatorial vetoes — in both chambers of the state legislature.

“It’s most implausible to think that they drew those maps with those effects and didn’t understand what they were doing.” said Zach Schauf, an attorney for the plaintiffs in the League of Conservation Voters case.

Under questioning, defense attorney Phil Strach said he was not aware of any analysis that indicated Democrats would win the majorities of seats. He said political realities, candidates and circumstances — not districts — determine who wins elections.

“The district obviously has something to do with it, but it’s not fair to lay it all at the feet of the districts. And that’s particularly true when the districts are drawn transparently, openly, without election data and full explanations are provided to the public as to why they’re drawn the way they’re drawn,” said Strach, who was representing top Republican lawmakers from the House and Senate.

Strach and Katherine McKnight centered their defense on the process used by lawmakers to draw the maps and the state’s political geography, which they said advantages Republican candidates because of the tendency of Democratic voters to live in tight clusters around larger urban areas.

Shirley, Nathaniel J. Poovey and Dawn M. Layton were the three judges on the panel, assigned by Republican Chief Justice Paul Newby. Shirley and Poovey are Republicans, and Layton is a Democrat.

Earlier this week, Shirley rejected a challenge to the process lawmakers used in drawing the maps, though he did not weigh in on the maps themselves.

Shirley asked the majority of questions Friday, often quizzing attorneys on what constitutes an “extreme partisan gerrymander” and how much, if any, partisan consideration should be allowed by state lawmakers, who draw the districts without any role for the governor in North Carolina.

The North Carolina League of Conversation Voters said late Friday that it had filed a notice of appeal that will seek to reverse the judges’ decision.

“The three-judge court unanimously recognized that extreme partisan gerrymandering has harmed North Carolina’s voters for too long and should never be condoned, but expressed what it called a ‘reasonable doubt’ about whether the General Assembly’s new maps violate our state constitution,” executive director Carrie Clark said in a statement.

“The people of North Carolina deserve fair maps, and we will continue our fight to protect the voting rights of millions of North Carolina citizens,” Clark said.

The case on the merits will move forward. The hearing Friday was simply about whether to issue a preliminary injunction and halt preparation for the March primary.

House Speaker Tim Moore, one of the defendants named in the cases, said he was very pleased with the ruling.

“It is good news for North Carolina, and now it is time to move forward so that the election process can begin and the people of North Carolina can make their voices heard,” he said in a statement.

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