OPINION: Reading The Redistricting Tea Leaves

Empty chairs at the N.C. Supreme Court. Photo by Maya Reagan, Carolina Journal

By Dallas Woodhouse
The Woodshed
Carolina Journal

Since the Friday night massacre, in which a partisan Democrat state Supreme Court threw out GOP-enacted congressional and legislative districts, legislators and political observers have been trying to figure out what happens next and what it means for the General Assembly as they return to Raleigh next week to revise maps.

First, we address what we know. Then we address what we think.

We have stated for the record that only an extremely partisan Supreme Court could throw out the districts with no text in the state constitution that addresses how districts must be drawn. At a minimum, as John Locke Foundation political analyst Mitch Kokai wrote, the court and election map critics greatly stretched the N.C. Constitution to reach a political goal for Democrats.

Does it sound reasonable to you that partisan considerations in map-making took place for 200 years, but now a Democrat-majority Supreme Court finds the practice violated four sections of the state constitution, including the right to free speech, assembly, and equal protection? Does it sound reasonable that political parties are afforded the same rights against discrimination as members of a racial minority? That is what the court did.

With that said, the court has spoken for now. Until a future court overturns this court’s political bastardization of the state constitution, we are stuck with the ruling.

Republican legislative leaders have said they will redraw legislative and congressional maps while still examining other options after Democrats on the state Supreme Court found for the first time that partisan considerations in map-drawing can violate the state constitution.

House Speaker Tim Moore, R-Cleveland, has said Republicans have not ruled out an appeal to the U.S. Supreme Court. However, unlike a recent case in which the U.S. Supreme Court reversed a lower federal court ruling that had blocked Alabama’s new congressional districts, this is a state case dealing with state constitutional issues. An appeal to the U.S. Supreme Court might be premature at this time. Should the court reject the GOP’s revised congressional districts and adopt one of the plaintiff’s maps, an appeal to the U.S. Supreme Court becomes likely.

It may not come to that.

In a joint statement, Senate Republican leader Phil Berger, R-Rockingham, and Democratic leader Dan Blue, D-Wake, stated they are working on a “negotiated end product” that will take them through next week.

As the state Senate took the lead on the original congressional map, Berger and Blue will attempt to negotiate a deal on the congressional districts as well as the state Senate map.  House GOP and Democrat leaders are expected to work with Berger and Blue on the congressional map.

The court’s Democratic majority ordered the General Assembly to submit new congressional and legislative district maps for consideration by Feb. 18. In submitting the new maps, the court is requiring the legislature to identify a series of tests passed to ensure a sense of “partisan fairness.”

However, the court has not defined what that means.

But we have some indications of what that could mean in the congressional map.

The court labeled the enacted congressional map that COULD and MIGHT elect 10 Republicans as an extreme partisan outlier in violation of the state constitution. That’s despite the fact the plaintiff’s lead witness produced computer-generated “fair” redistricting maps that would produce a 9-5 Republican majority within North Carolina’s congressional delegation 73% of the time. In another 9% of the “fair map” simulations, Republicans would gain a 10-4 edge. In comparison, the Democrat experts’ computer simulations would produce an even 7-7 map just 1.3% of the time.

With the vast majority of nonpartisan computer simulations resulting in a map likely to elect nine GOP members of Congress and five Democrat members most of the time, that will be the starting point for both sides.

Democrats are insistent that a Greensboro area congressional (N.C.-7) that was drawn to elect a Republican be altered to be a Democratic-leaning district for incumbent Congresswoman Kathy Manning.  Democrats will get this in the redraw.

Former Congressman Mark Walker considered dropping out of the U.S. Senate race and running in the newly enacted district, but this district will be altered specifically for Manning, joining districts 9 (Charlotte), 6 (Orange and Durham counties), and 5 (Wake County) as solid Democrat districts. The northeastern district that runs from Nash County to the coast along the Virginia border is a Democrat-leaning swing district.

One option will be to turn the new N.C.-13 into a swing district winnable by either party.

We speculate the final agreed-to map will include eight GOP seats, four Democrat seats, and two swing seats.

Over the last decade, Republicans averaged 31.6 state Senate seats and 72 state House seats.

Republicans could point to a test suggested by Gov. Roy Cooper and Attorney General Josh Stein. In a pretrial friend-of-the-court brief, Cooper and Stein wrote:

“[A]dvances in computer modeling make it possible to easily compare enacted districting plans with other alternative plans, to assess how much the enacted plans deviate from median neutral plans that were drawn based on nonpartisan redistricting criteria.”

“Thanks to those advances, this Court could adopt a rule that is similar to the one the U.S. Supreme Court has developed to govern allowable population deviations,” they added. “Under that rule, an enacted plan would be subject to strict scrutiny unless the plan stays within 5% of the median outcome, measured by seat count, at a statewide level across a range of electoral circumstances.”

Our research indicates that the Cooper/Stein formula would lead to a median N.C. House map with a 68-52 Republican advantage, with an allowable variance of +/- 3 seats.

The median N.C. Senate map would have a 28-22 Republican advantage, +/- 1 seat.

So the maximum number of Republican seats allowed per Cooper & Stein would be nine in Congress, 71 in the state House, and 29 in the state Senate. However, 69 Republicans in the House would be more in the normal range of House seats. They don’t seem to be asking to overturn the state’s 20-year-old Stephenson court ruling.

Exactly what range of outcomes is permissible in the legislative maps and the measures to certify “partisan fairness” will be greatly debated within each political party and with each other over the next week.

Other questions will have to be answered. Will there be an effort to keep cities and towns whole within districts when possible? Will the courts’ mandates result in fewer competitive seats in the General Assembly? The Democratic-aligned plaintiffs argued in essence that because the GOP is so strong in rural areas and drawing swing districts is not possible in many areas, it is unconstitutional for the GOP to draw competitive swing seats in some urban areas including Wake, Mecklenburg, and Buncombe counties.

The legislature has been handed a nearly impossible task under an extremely short timeframe. Draw new districts that meet all traditional redistricting criteria of equal population and compactness while complying with the unclear court instructions to ensure “partisan fairness,” whatever that means.

It is not a task I would want. You?

The Woodshed, by investigative political analyst Dallas Woodhouse, is a unique blend of news and opinion based on his expertise and years of experience in North Carolina’s political trenches. For more follow him on Twitter at @DallasWoodhouse