North Carolinians’ Guide to Redistricting

Elections should represent the will of the people. When politicians are allowed to draw their own maps, they manipulate the system to keep themselves in power. We need to make the process of drawing voting maps be fair and transparent, so that our government is “of, by and for the people.”

What is “Redistricting”?

Everybody in North Carolina lives in several different voting districts; including voting districts for US Congress, North Carolina State House, and North Carolina State Senate. 

Every 10 years, US congressional districts are redrawn in connection with the US Census. US Congressional district changes are related to reapportionment, the process of shifting the number of congressional seats per state due to population changes. When they redraw the lines, it is called redistricting.    Every state has its own laws about drawing voting district maps.   

Gerrymandering

Gerrymandering is intentionally manipulating voting maps to create an advantage for a political party or group, and with “big data” and sophisticated software, this manipulation can be done very precisely. 

Racial gerrymandering and partisan gerrymandering have historically been treated differently by the courts – but the function of each of them is essentially the same:  they are both tools used by politicians to manipulate the voting districts in such a way that it discriminates against one group of people in order to give an advantage to another group of people – and usually to the advantage of the politicians who draw the lines.  Both types of gerrymandering are part of a job protection plan for politicians.

How does gerrymandering work? 

Gerrymandering is accomplished by drawing the voting districts in a way that reduces the electoral power of the group disfavored by the mapmakers.  One tactic is to break up a group of people into several voting districts so that they do not have a majority of votes in any district, sometimes called “cracking”.   Another gerrymandering method is to “pack” a district full of members of a group,  in order to create a number of surrounding “safe” districts – sometimes called “packing”. 

The 2011 NC gerrymandered voting maps are examples of “packing[1].”   In private meetings behind closed doors, two state legislators and the private consultant drew districts which were “packed” with a large percentage of African-American voters in order to “bleach” the surrounding districts and create “safe” conservative seats.

Redistricting Law.

Redistricting is governed by both federal and state law.   Each state has its own laws that control how redistricting is done, and every state does it a little bit differently.   North Carolina is one of a handful of states in which the state legislature can do almost whatever it wants, and the governor cannot veto the voting district maps. NC does not have any sort of independent commission that signs off on the maps, as some states do.

The various laws that relate to redistricting are too complex to explain fully here, but it is still helpful to know some of the laws that apply.

NC State Constitution

The primary NC law is Art. II of the NC State Constitution, which gives the NCGA the authority to draw its own districts for state house and state senate.

In order to amend the state constitution, 3/5 of the House and 3/5 of the Senate must vote in favor of the constitutional amendment, which then goes on the ballot for ratification by the voters.

The Equal Protection Clause of the 14th Amendment.

The Equal Protection clause of the 14th Amendment to the US Constitution prohibits racial gerrymandering (when a state relies on race to draw districts) because it harms individuals based on racial classification.

“One Person, One Vote.”

Constitutional principle based on Article I, Section 2 and the 14th Amendment which holds that each person’s vote should count the same as every other person’s vote. Under this principle each district within a jurisdiction should have the same or substantially the same number of people.

First Amendment of US Constitution.

 Some partisan gerrymandering cases argue that partisan gerrymandering violates the First Amendment, by burdening and retaliating against individuals who voted for a political party on the basis of their political beliefs (“viewpoint discrimination”) and infringes upon freedom of association (“First amendment retaliation”).

Voting Rights Act of 1965.

The Voting Rights Act is Federal legislation that prohibits racial discrimination in voting.  The VRA was enacted to ensure minorities that their right to vote, as guaranteed by the Fifteenth Amendment, would not be abridged by state and local governments through the use of literacy tests, poll taxes, and other discriminatory electoral devices. 

Section 2 of the VRA prohibits electoral practices that result in the election process not being equally open to participation by the members of a minority group.  Section 2 creates a remedy for when, based on the totality of the circumstances, a cohesive group of minority voters are usually unable to elect the representative of their choice.  

The VRA originally required jurisdictions with a history of discrimination to get “pre-clearance” of election changes. However, even though the VRA had been working, in 2013 the US Supreme Court ruled in a 5-4 decision along ideological lines to overturn the formula used to determine VRA “pre-clearance” in the Shelby Co. vs Holder case.  Chief Justice Roberts said that America had “changed.”

History of Gerrymandering in North Carolina. 

North Carolina is infamous for gerrymanering.  We have had gerrymandering in North Carolina since at least the 1870s

After the Civil War, North Carolina enacted a new constitution that granted Black men the right to vote.  For a period of time, black and white men started voting together, and this coalition won seats in the legislature.  

The elite white opponents who wanted to reserve power for themselves attempted to break the coalition with messaging targeted at less wealthy Whites: “‘Conservatives’ said all Whites shared an interest in the debasement of the Negro. Racism was a ‘tool to split’ a democratic revolution.”[2]

The affluent white oligarchy repeatedly enacted voting laws that, without explicitly mentioning race, made it more difficult for blacks to vote.  

The 1877 legislature also gerrymandered legislative districts so as to minimize black and white coalition voting.  

The anti-coalition party, which was then the Democratic Party, swept into power and held onto the NC state legislature for over 100 years.  Democrats were in control of the NC State Legislature for all of the 20th century.

North Carolina lawmakers gerrymandered voting districts several times through the later part of the 20thCentury.  Federal courts struck down various NC electoral district maps in the 1980s and 1990s for violating the VRA and/or Equal Protection, or both, in major landmark federal cases so famous that legal standards are named after them[3].

The 1990s also saw coalitions of black and white voters in North Carolina voting for many of the same candidates.

In the 2008 election, there was historic voter turnout in North Carolina. The VRA had been working.  In 2008, African Americans registered and voted at a higher rate than whites for the first time in North Carolina history, helping America elect its first African American president. 

In response to the 2008 election, a national conservative group called “Project RedMap” launched a project “to solidify conservative policy making at the State level and maintain a Republican stronghold House of Representatives for the next decade.” [4]

They would do this by controlling WHO would draw the voting district lines after the next census.   These out-of-state groups poured money into states where the state legislature have “primary control” over the redistricting process, like NC. 

In 2010, in time for the census, Republicans gained control of NC General Assembly (NCGA) after 112 years. The NCGA went on to create the most gerrymandered electoral districts in the country (both for themselves and for NC’s US Congress seats).  The maps they drew rank among the worst in the world for unfair voting districts, according to the Election Integrity Project.  

Federal courts have held that all 3 voting maps drawn by the NCGA in 2011 were unconstitutional racial gerrymanders in violation of the Equal Protection Clause.  

2020 – the Next Redistricting Cycle.

After the 2020 census, it will be time to redraw NC voting districts again.  Gerrymandering lawsuits are still going on from the last redistricting cycle, and there are pending court orders to redraw NC’s congressional districts and some of NC’s state house districts.  That means NC voting districts from the current cycle are still gerrymandered (both congressional and state legislative voting district maps), and it is almost time to draw new voting districts.  

After 2020, NC will be likely to gain a seat in the US House because of population growth.  Because of North Carolina state law, whichever party controls the North Carolina state legislature in 2020 will draw the voting district maps almost however they want after the 2020 census – unless we change things.  Remember, under NC law, voting maps may be drawn in secret, and the Governor cannot veto them.

Pending NC Gerrymandering Cases.

North Carolina has suffered more major redistricting court cases than any other state.  Over half a dozen major gerrymandering cases have been filed since 2011.  Two of the outstanding cases are:

  • NC League of Women Voters & Common Cause v. Rucho:  A federal three-judge panel held that North Carolina’s redrawn congressional map (adopted in 2016 after the Court struck down the earlier map) was an unconstitutional partisan gerrymander.   It has been appealed to the US Supreme Court, which is scheduled to hear arguments later this term.
  • Common Cause v. Lewis:  This state case was filed in North Carolina Superior Court and challenges NC’s redrawn state legislative districts (redrawn in 2017 after courts struck down the prior map as a racial gerrymander) on partisan gerrymandering grounds under the NC state constitution. 

Will the US Supreme Court save us?

No matter how the US Supreme Court rules – it is not the end of the story. Constitutional law just sets a minimum standard.  People often say the Constitution is “a floor not a ceiling”. 

Even if the court cases strike down the maps as unconstitutionally partisan, it will still be up to the North Carolina General Assembly to interpret and apply the Court decisions.  Under current law, even if the NCGA has to re-draw the maps, they may still draw them more or less however they want, so long as the maps comply with the minimal standard set by the US Constitution. 

In addition, the NCGA has learned that even if they get it wrong, it is unlikely that anything will happen for many years. NC has had gerrymandered maps since 2011.

In NC, the state legislature is not required to be impartial or evenhanded, and there are not enforceable ways to include citizen involvement in the redistricting process. There is not a way to place a citizen-led initiative on the ballot in NC, so if we want the law to change we have to bring political pressure on the NCGA to change it. 

What now?

We cannot wait and hope that the Supreme Court will solve all of our problems. In order to have fair voting maps in NC, we need to change the state laws that govern redistricting.   

Voting districts should be drawn with the primary goal of ensuring that all people in NC have a representative in government to look out for the interests of their community when it comes to writing the laws and making the decisions that affect their everyday lives.

Drawing fair voting maps requires: 1) an open, unbiased process with citizen participation and access at all levels and steps of the process; and 2) impartial, measurable criteria that do NOT include considering the address or location of incumbents.   

There are several models of redistricting reform that have been adopted by various states. Every state has its own unique geography and history, as well as unique current state laws. Successful redistricting reform in North Carolina will likely be different from other states. 

Take Action

North Carolina voters must play an active role in redistricting reform if we are to have fair voting maps in North Carolina. The only path for redistricting reform goes through the North Carolina state legislature – which means NC voters must demand fair districts   

Contact your representatives in the NC General Assembly, and ask them to support an open, unbiased redistricting process using impartial, fair redistricting criteria that exclude the use of partisan data (and that specifically do not allow using the address of incumbents).   

Tell your representatives that successful redistricting reform in North Carolina must include provisions to ensure racial equity, and not rely on the prospect of federal litigation to protect the interests of African-American voters and other racial, ethnic, or religious minorities. 

You can find your NC legislators here: https://www.ncleg.gov/RnR/Representation

For more information and resources about redistricting, see:


References:

[1]In “Harris v. McCrory” and “Covington v. North Carolina” courts held that the 2011 maps violated the Equal Protection Clause of the Fourteenth Amendment to the US Constitution because of impermissible racial gerrymandering.  Harrisconcerned North Carolina’s US Congressional Districts. Covingtonconcerned the North Carolina General Assembly districts (both the NC State House of Representatives and the NC State Senate).  Both cases were based on electoral district maps drawn after the 2010 census by Tom Hofeller, a private consultant hired by State Senator Rucho and State Representative Lewis.   In each case, United States District Courts ruled that the 2011 maps drawn by Dr. Hofeller at the behest of Rucho and Lewis were unconstitutional. 

[2]  See: Curtis, Michael, “Race as a Tool in the Struggle for Political Mastery: North Carolina’s “Redemption” Revisited 1870–1905 and 2011–2013 Law and Inequality, Vol. 33. Posted: 3 Nov 2016. https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2863155

[3]The “Gingles Test” and the “Shaw Doctrine.” The “Shaw Doctrine” is “a redistricting plan that is so bizarre on its face that it is unexplainable on grounds other than race demands the same strict scrutiny given to other state laws that classify citizens by race.” The “Gingles Test” is a framework for evaluating whether redistricting plans violate Section 2 of the Voting Rights Act by diminishing the ability of a minority group to elect candidates of its choice.

[4]Project RedMap report, “2010 State Elections: REDMAP’s Execution” on its website  http://www.redistrictingmajorityproject.com; see also David Daley’s article, “The House the GOP Built: How Republicans Used Soft Money, Big Data, and High-Tech Mapping to Take Control of Congress and Increase Partisanship.” New York Magazine.  April 14, 2016.  http://nymag.com/intelligencer/2016/04/gops-house-seats-are-safe-heres-why.html


Acknowledgements:

Some of this post was developed from notes and information presented at the “Common Cause Redistricting Reform: Mapping our Future Conference”   at Duke University’s POLIS Center on February 28, 2017.

Much of the research and earlier drafts that formed the basis for this Guide to Redistricting came out of collaborative research done as part of the Wake County League of Women Voters Redistricting Committee.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google+ photo

You are commenting using your Google+ account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s