Redistricting and Gerrymandering in North Carolina: Battlelines in the Tar Heel State (Palgrave Studies in US Elections) 3030807460, 9783030807467

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PALGRAVE STUDIES IN US ELECTIONS SERIES EDITOR: LUKE PERRY

Redistricting and Gerrymandering in North Carolina Battlelines in the Tar Heel State J. Michael Bitzer

Palgrave Studies in US Elections

Series Editor Luke Perry, Utica College, Utica, NY, USA

This Pivot series, established in collaboration with the Utica College Center of Public Affairs and Election Research, brings together cuttingedge work in US Politics focused on trends and issues surrounding local, state, and federal elections. Books in this series may cover but are not limited to topics such as voting behavior, campaign management, policy considerations, electoral social movements, and analysis of significant races. While welcoming all projects on US elections within and across all three levels of government, this series proceeds from the truism that all politics is fundamentally local. As such, we are especially interested in research on state and local elections such as mayoral races, gubernatorial races, and congressional elections, with particular focus on how state/local electoral trends influence national electoral politics, and vice versa. This series is open to any relevant scholar and all methodological approaches.

More information about this series at http://www.palgrave.com/gp/series/16164

J. Michael Bitzer

Redistricting and Gerrymandering in North Carolina Battlelines in the Tar Heel State

J. Michael Bitzer Department of Politics Catawba College Salisbury, NC, USA

Palgrave Studies in US Elections ISBN 978-3-030-80746-7 ISBN 978-3-030-80747-4 (eBook) https://doi.org/10.1007/978-3-030-80747-4 © The Editor(s) (if applicable) and The Author(s), under exclusive license to Springer Nature Switzerland AG 2021 This work is subject to copyright. All rights are solely and exclusively licensed by the Publisher, whether the whole or part of the material is concerned, specifically the rights of translation, reprinting, reuse of illustrations, recitation, broadcasting, reproduction on microfilms or in any other physical way, and transmission or information storage and retrieval, electronic adaptation, computer software, or by similar or dissimilar methodology now known or hereafter developed. The use of general descriptive names, registered names, trademarks, service marks, etc. in this publication does not imply, even in the absence of a specific statement, that such names are exempt from the relevant protective laws and regulations and therefore free for general use. The publisher, the authors and the editors are safe to assume that the advice and information in this book are believed to be true and accurate at the date of publication. Neither the publisher nor the authors or the editors give a warranty, expressed or implied, with respect to the material contained herein or for any errors or omissions that may have been made. The publisher remains neutral with regard to jurisdictional claims in published maps and institutional affiliations. This Palgrave Pivot imprint is published by the registered company Springer Nature Switzerland AG The registered company address is: Gewerbestrasse 11, 6330 Cham, Switzerland

This work is dedicated to the memory and life of my brother, David Kinsley Bitzer (1971–2020)

Acknowledgments

Writing a book in the midst of a global pandemic and the 2020 election has been a challenge. However, were it not for the support of my family and friends, this project would not have been possible. Dr. Gary Freeze read drafts of the chapters and offered invaluable insight and thoughts on strengthening the work. His expertise in North Carolina history, his constructive criticism, and his constant support made this work better than originally envisioned. I want to thank Dr. Luke Perry, editor of Palgrave’s series, for inviting me to submit this topic. The reviewers of this work also offered significant input and thoughts as to its development. Drs. Charles S. Bullock, III (University of Georgia), Christopher Cooper (Western Carolina University), and Thomas Eamon (East Carolina University) encouraged this project, and for that I will always be grateful. Any errors remain the author’s fault and not of the reviewers. Finally, I share my deep thanks and love to my family, to my parents Gerald and Dianne Bitzer, my mother-in-law Joy Anders, and most importantly, to my wife Andrea Anders and my son Drew Bitzer. I could not have taken over the dining room table nor endured the early mornings, late nights, and weekends consumed with writing and researching without their love and support.

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Contents

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Introduction An Overview Redistricting’s Basic Principles Outline of the Book

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History of Redistricting Through the 1980s in the United States and North Carolina North Carolina’s Redistricting Up to World War II U.S. Supreme Court Initiates the Redistricting Revolution Congress Enters the Redistricting Fray Expanding Voting Rights in the 1970s and 1980s The Redistricting Revolution and VRA Comes to North Carolina The 1980s Brings the Redistricting Fight to Black and White North Carolina North Carolina’s Gingles Case North Carolina’s Racial Redistricting Establishes the Nation’s Legal Authority

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Race-Based Redistricting in the 1990s North Carolina’s Political Dynamics in the 1990s NC Receives 12th Seat and the Race and Partisan Battle Begins DOJ’s Review

1 4 5 8 13 14 18 22 25 26 35 39 42 47 48 48 52

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NC General Assembly Goes for Round Two of Redistricting Legal Challenges Lead to Shaw v. Reno The U.S. Supreme Court Reviews Shaw Round Three of NC Redistricting and Cromartie v. Hunt The 1990s and North Carolina’s Role in Racial Gerrymandering 4

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Redistricting in the 2000s—The Battle Over Race Continues North Carolina’s Politics at the Start of the Twenty-First Century The 1990’s Battle Continues Into a New Decade: Cromartie v. Hunt Redistricting Shifts from Federal to State Judicial Oversight North Carolina’s “Whole County Provision” Pender County’s “Bright Line” The 2000s and North Carolina’s Continued Fight Over Racial Gerrymandering Racial Redistricting in the 2010s North Carolina’s Partisan Environment: The Sorting and Division Grows More Intense The GOP’s First Redistricting Racial Gerrymandering Claims: Dickson v. Rucho in State Court Harris v. McCrory/Cooper: Attacking the Congressional Districts as Racial Gerrymandering Covington v. NC: Attacking the State Legislative Districts as Racial Gerrymandering The Federal and State Battle Over Partisan Redistricting Round Two of Congressional Redistricting: Partisanship Rules Common Cause v. Rucho The Supreme Court Weighs In State Action on Partisan Gerrymandering and State Legislative Districts The General Assembly Redraws for the Third Time—With a Lottery Machine

54 57 65 67 70 75 76 77 81 83 87 91 95 96 97 99 104 107 117 118 121 127 131 135

CONTENTS

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State Action on Partisan Gerrymandering and Congressional Districts

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Conclusion

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Bibliography

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Index

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CHAPTER 1

Introduction

Abstract This chapter introduces the concept of redistricting, the redrawing of legislative district lines to create representative geographic areas, and the controversies of both race and partisanship when it comes to redrawing the lines. The chapter provides an overview of North Carolina’s role in redistricting controversies from the 1980s, particularly the aspects of racial and partisan gerrymandering, as well as covers redistricting’s basic principles including population allocation, equal population distribution, and other traditional redistricting criteria. Keywords Redistricting · North Carolina · Gerrymandering

Redistricting activities have fully embodied what one scholar calls “the most political activity in America.”1 By drawing lines to create defined areas, redistricting doesn’t denote just representative geographies, but also exemplifies a political party’s power and its possible enhancement, while potentially diminishing the opposition party’s chances of exercising governing power. This activity often determines who controls the levers of state legislative governance and power, allowing a political party to shape that state’s policies and actions. That state-level influence has a ripple effect on American politics by determining who may control the U.S. © The Author(s), under exclusive license to Springer Nature Switzerland AG 2021 J. M. Bitzer, Redistricting and Gerrymandering in North Carolina, Palgrave Studies in US Elections, https://doi.org/10.1007/978-3-030-80747-4_1

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House of Representatives. But the political world isn’t the only venue where redistricting has been fought over. Legal challenges have shaped and constructed redistricting’s constitutionally acceptable and infirmed activities. One state has exemplified redistricting’s political and legal dynamics over four decades. Following major federal action on redistricting in the 1960s, North Carolina has provided critical cases in American jurisprudence regarding redistricting since 1980. At both the federal and state levels, the courts have been influential players in redistricting, with North Carolina’s controversies often at center stage. North Carolina’s efforts have impacted two distinct aspects of redistricting: race and partisanship. In terms of what is acceptable, and what isn’t, when district lines are drawn, North Carolina has been a political and legal battle field over racial and partisan considerations in redistricting. These cases shaped national legal principles, and influenced the political dynamics, of how one can draw legislative lines. For most Americans, redistricting is a once-every-so-often word that they hear in the news. They may understand the concept as changing who they get to vote for as their elected representative, at the state legislative or congressional level. For those Americans with a higher political interest and engagement, they may know redistricting as a useful tool for their party, whether their party is in power or fighting for it. For elected officials, redistricting is a life and death struggle in the game of modern politics, the means of keeping legislative governing control or losing political influence. Ultimately, redistricting efforts uniquely and intricately shape and reshape the lines where voters are placed and how elections are determined. In modern American politics, redistricting has become a policy for ensuring political power. Thanks to elected officials, engaged citizens, and voters having sorted themselves into respective political camps and tribes, the job of a map drawer has become easier over time.2 This sorting can be reflected geographically, allowing map drawers to expertly assign likeminded and neighboring voters into districts that favor one political party. And often, the political behavior of these districts holds over time. Redistricting can pay dividends long past the initial election into subsequent contests until the next decade’s activities begin anew—or simply continue that same political power dynamic with new lines. Yet one should not focus just on the redrawing of lines as redistricting’s major influence. Redistricting can influence the tenor and tone of a state’s

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politics. The process can affect the policies adopted at both the state and national level. Redrawing district lines captures the partisan nature of our politics in geographic terms and influences policy initiatives and decisions that impact everyday Americans’ lives. To understand how those groundlevel partisan attitudes are best expressed, one must explore why the lines are drawn, how they are drawn, and what the legal controversies are in order to put one more piece into the puzzle of modern American politics. Since 1980, North Carolina has undergone major litigation every decade over the redrawing of district lines. These court cases have also led to multiple redistricting plans being created each decade. Many of these court cases have been settled by the nation’s highest court, the U.S. Supreme Court, producing binding legal principles for the other forty-nine states. Sometimes North Carolina cases provided the legal groundwork for legal battles fought over in other states. But as this single-state case study will demonstrate, two distinctive redistricting controversies have found a natural home in North Carolina. The battle over redistricting has often centered on the issue of race, most notably in resolving and rectifying historical racial discrimination against Black and African American citizens. The question regarding race and redistricting often boils down to whether representation should be based on descriptive or substantive representation. Namely, can minority groups only be represented by those who look like them, or can they be represented by individuals who share the same policy goals and aspirations, but may not be from their racial group? Once that question is considered, the next inquires can be even more difficult: if descriptive representation is the basis for electing minority officials, then how many minority voters does, or should, it take to successfully elect their preferred candidate? And if there is a quota-level for minority voters to elect one of their own, does that violate the idea of equal protection under the law? In the battle over redistricting and racial gerrymandering, it is this controversy of “how much race is enough or too much” that agitates redistricting efforts. Redistricting’s other major battle is over another simple yet difficult question: how much should partisanship influence district lines? Over the nation’s history, the art and science of gerrymandering has come to symbolize the ills of partisan behavior, namely entrenching one’s party in power and dividing and conquering the opposition. Both Democrats and Republicans have long histories of using partisan gerrymandering to their advantage.3 But with modern technological capabilities of drawing

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district lines (literally to the point where one could cross a city’s main intersection and be in another congressional district4 ), combined with high levels of partisan loyalty by voters who have often sorted themselves into like-minded communities, partisan gerrymandering intensifies one party’s power over the other. If you combine both partisanship with racial dynamics, then gerrymandering becomes the modern-day version of political trench warfare of American politics. This study examines the legal and political dynamics of how North Carolina’s redistricting activities have shaped national dynamics. The state provided fundamental case law regarding claims of racial gerrymandering in the 1980s and 1990s. The 2000s saw the advent of state courts, especially the courts of last resort, taking the reins to shape their own influences. And in the politically polarized environment of the 2010s, North Carolina continued its role of not just clarifying the role of race in redistricting, but shaping how the courts, both at the national and state levels, dealt with partisan gerrymandering.

An Overview This analysis begins with the principles of redistricting, most importantly what it is and what criteria has historically served as redistricting’s foundation. Following that overview, Chapter 2 presents a brief overview of North Carolina’s historic redistricting activities, followed by the 1960s redistricting revolution, when the U.S. Supreme Court handed down several landmark cases to guide state legislatures’ redistricting activities. The chapter also starts North Carolina’s jurisprudential journey into the 1980s legal controversies over redistricting, most notably focused on race. A 1986 North Carolina case established the legal test for when racial gerrymandering claims could be litigated. In doing so, North Carolina’s redistricting efforts instituted an important legal benchmark for determining when race and redistricting collided. Chapter 3 continues the legal battles over racial dynamics in redistricting into the 1990s, with another seminal case out of the Tar Heel State. In a landmark ruling based on North Carolina’s congressional redistricting efforts, the U.S. Supreme Court once again set legal precedent on how race could be handled within redistricting efforts. For some states, North Carolina included, the road to legal and constitutional usage of race in redistricting was not akin to a straight interstate highway, but rather the zigs-and-zags of what was acceptable and what wasn’t.

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After two decades of legal wrangling, it was thought that the notion of race within redistricting had been resolved. But as Chapter 4 will show, controversies in the 2000s merely shifted from the federal to the state courts, with an important North Carolina state case that shaped the following decade’s legal battles. To say the decade beginning with 2010 was consequential in North Carolina redistricting litigation is an understatement, as Chapter 5 will explore. The legal challenges and controversies in the first half of the 2010s brought into play not only continued controversies over racial gerrymandering claims, but then a battle over the most divisive aspect of redistricting. In covering the second half of the 2010-decade, Chapter 6’s coverage of partisan gerrymandering focuses on North Carolina’s controversy over partisanship’s influence within redistricting. With these decisions, the ground shifted from the federal to state judiciaries to address what some believe is a major deficiency within America’s governing system. The concluding chapter brings these different dynamics of redistricting, notably racial and political dynamics, together to create a sense of where things potentially stand for the 2021 redistricting efforts in North Carolina and beyond.

Redistricting’s Basic Principles Before entering redistricting’s political and legal dimensions, it is useful to have the ground rules as to what drives the process. Creating districts, and the subsequent changes to those districts (redistricting), serves as a necessary component when it comes to member-assigned systems of representative governance through democratic elections. It’s not just about who is elected, but who elects the representatives, and where the representative’s geographic constituency is defined, that makes redistricting an important component of the American democratic-republican experiment. How districts are ultimately drawn translates election results into representative seats, and thus a “districting scheme can make some votes worth more than others.”5 While redistricting may be viewed as “ultimately a technical task,” both politics and the law shapes how those technical aspects play out.6 Prior to redistricting, the process of reapportionment assigns an individual representative to a set number of citizens. Following the U.S. Census counting of citizens every ten years, reapportionment divides a legislative body’s membership among different geographic components. The most notable reapportionment in American politics is the division

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of the 435 seats in the U.S. House of Representatives. Utilizing the constitutional requirement that every state is entitled to at least one U.S. representative, the apportionment process allocates the remaining 385 seats based on the state’s population in the decennial census. That allocation process influences not just a state’s U.S. House delegation. Formulaic dimensions of national policies and, just as importantly, federal dollars are often tied to a state’s population totals. But when it comes to a state’s Congressional membership, there is one other influence to keep in mind. A state’s electoral votes for president are based on the number of Congressional members, both representatives and senators. Any increase, or worse decrease, in population has a direct consequence not just on a state’s influence in the U.S. House, but also in electoral votes for the nation’s elected executive. Controversies over which state gets how many U.S. representatives have been another source of legal and political controversies, and North Carolina, with the 2010 Census and reapportionment, was at the heart of the most recent battle over the 435th and last member.7 Once the U.S. House seats are reapportioned, states with more than one U.S representative must allocate each member to a defined geographic district. States also redistribute their own legislative bodies, typically both a house and senate, into districts to achieve one of redistricting’s most important conditions, that of equal population among the districts. Thanks to the 1960s redistricting revolution, the battle over apportioned legislative membership has intensified due to the “oneperson, one-vote” legal principle. For congressional districts, the U.S. Supreme Court requires that each district must be mathematically equal to the others (barring the fact that plus or minus one or two citizens is accepted for congressional districts). For state legislative districts, the court has allowed some population deviation, taking into account other redistricting criteria, principles, and constraints. Beyond population allocation and equal distribution, redistricting activities are based on other factors. Often cited as an important traditional redistricting criterion, compact districts should have a minimum distance between all parts of the geographic territory. Another factor related to geography is contiguity, that all parts of the district must connect at some point. All fifty states require their state legislative districts to be contiguous, while forty-one require contiguous congressional districts.8 However, one question regarding contiguity is, how much do the ‘points’ of a district need to be in actual geographic space?

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In several past North Carolina redistricting efforts, the idea of ‘point contiguity’ held sway by bringing a district lines to a singular, discrete point—but then expanding back out to continue its geographic coverage. Contiguity typically requires an actual amount of geographic space must be present to connect the district, although what that geographic space is can be up for debate (district lines utilizing water ways, for example). The next set of traditional redistricting principles is akin to what one U.S. Supreme Court justice once labeled as his test for whether something was pornographic or not: “I know it when I see it.”9 Considerations of local jurisdictions and “communities of interest” have been given weight in drawing legislative lines, but they are often afforded momentary acknowledgement and then sacrificed for other considerations. Grouping counties and other political subdivisions, such as cities or townships, attempts to preserve distinctive notions of local politics within a district, with citizens often having a localized notion of who their neighbors are and what their local communities’ important issues are. Connected to sub-state jurisdictions are “communities of interest.” For example, mountain areas may share common traits that a coastal community may not. Conversely, city neighborhoods, due to race, ethnicity, or socio-economics, could be determinative of communities of interest. But what are the “common interests” shared among different communities? While respecting county borderlines or city limits give map drawers easy reference points, respecting communities of interest can be harder to define. Finally, two traditional factors in redistricting denote the influence of partisanship outside the bounds of voter behavior and election results. Map drawers typically seek to preserve a district’s prior versions, or ‘cores.’ Respecting what has been done in the past, especially for the majority political party, helps to ensure future respect for continuity of representation. Most elected officials know their districts like the back of their hand. Moving their district lines (which inevitably happens) is akin to taking away their first born. Adhering as closely to a previous district’s shape helps incumbents preserve their name recognition and credit-claiming when it comes to ‘bringing home the bacon’ for the folks back in the district. And this traditional criterion is directly tied to the last principle: incumbent protection. Incumbents can have a distinct upper hand when it comes to election prospects.10 Name identification, credit-claiming, and constituency services allow elected officials to demonstrate their effectiveness with

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their voters. Redistricting allows parties to protect incumbents, both their congressional and state legislative office holders. Legislators thus avoid ‘double-bunking,’ or putting two or more incumbents (especially from their own party) into the same district, as a natural self-interest. While many think redistricting is just about ‘drawing the lines,’ all of these mandated and traditional criteria can conflict with one another, creating headaches for map drawers when actually constructing the lines. In addition, the past few years have seen new redistricting criteria introduced, further complicating the process. For example, Arizona requires that district lines be drawn to ensure ‘competitiveness’ between the two parties, “when there is no significant detriment to other goals.”11 This was done to avoid creating ‘safe’ districts where one party will overwhelmingly win that seat. However, competitiveness may come into conflict with compactness, due to some states experiencing their voters sorting themselves into discrete geographic areas.12 For example, in North Carolina’s 2008–2020 general elections, less than 20 percent of state’s precincts were considered “competitive.”13 Beyond the ‘one-person, one-vote’ principle, the U.S. Supreme Court generally refers to these other criteria as “traditional districting principles.” The U.S. Constitution makes no reference to these principles, but the nation’s highest court has recognized that these factors have a long history on redistricting efforts by state legislatures. Some states delineate criteria in their constitutions, forcing legislators to balance federal versus state law. North Carolina is one of those states. Two important redistricting criteria in federal law are the Voting Rights Act and the Fourteenth Amendment’s Equal Protection Clause. As developed in the discussion of racial gerrymandering, these two legal aspects to redistricting efforts create conflicting demands, leading to a no-win legal situation at times for map drawers.

Outline of the Book The following chapters present a common structure. First, to orient the reader, North Carolina’s partisan dimensions of that decade will be discussed. As a general theme, North Carolina’s politics have followed a fairly consistent pattern since the 1980s. As part the Southern realignment from the 1940s to the 1990s of White voters from the Democratic to Republican Party and Black voters wholly into the Democratic Party, North Carolina’s politics have been considered a bifurcated environment:

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in general, a Republican-federal state while Democratic at the state level. Unlike some other Southern states that moved solidly from Democratic to Republican majorities following the Solid Democratic South’s collapse, North Carolina’s political parties have been competitive.14 But over the past fifty years, and particularly since 2008 and 2010, North Carolina’s politics have become much more sorted and deeply divided.15 After reviewing the state’s politics, each chapter will discuss the partisan dynamics behind creating the new maps. In general, the most important governmental actor is North Carolina’s bi-cameral General Assembly, composed of the House of Representatives and Senate. North Carolina’s constitution gives exclusive redistricting power to the legislature; the governor has no authority over the legislative redistricting process and cannot veto redistricting legislation. Therefore, whichever political party holds the legislature’s majority wields redistricting’s power. In addition to the state players, each chapter will look at the federal government’s role, typically the U.S. Department of Justice (DOJ) and its decisions regarding the maps’ fates. While the state legislature has the power to create the maps, North Carolina has been under federal oversight of its election laws (including redistricting) from 1965 to 2013. The federal executive branch’s power to grant approval for the maps or send them back for revision has been utilized on several occasions. But that doesn’t necessarily mean that the legal challenges end with DOJ’s ‘preclearance’ or approval. Lawsuits challenging the maps, both congressional and state legislative, have become the norm in North Carolina politics, and each chapter will present the decade’s redistricting legal cases and holdings, either at the state or federal levels, by focusing on various court opinions. The 1980s through 2015 tended to focus on racial considerations and challenges to North Carolina’s legislative maps, but partisanship is always present behind these challenges, and partisanship comes to the judicial forefront from 2015 to 2020. The final chapter summarizes North Carolina’s redistricting dynamics since 1980 and the state’s impact on how redistricting is perceived nationally, both legally and politically. While many states have had political and legal controversies that shaped redistricting efforts over the past four decades, North Carolina has been one state that has never had a single set of either congressional or state legislative maps last the full ten years between 1990 and 2020. If there’s one thing that the past several decades have demonstrated when it comes to redistricting, it’s anybody’s call as to what is, and what isn’t, legal and political, especially in the Tar Heel state.

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Notes 1. Bullock III, Charles S. 2010. Redistricting: The Most Political Activity in America. Rowman & Littlefield. 2. For an introductory overview of the political science debates regarding partisan polarization, see: Abramowitz, Alan. 2018. The Great Alignment: Race, Party Transformation and the Rise of Donald Trump. New Haven, CT: Yale University Press; Fiorina, Morris. 2010. Culture War? The Myth of a Polarized America. New York: Longman; and Campbell, James E. 2018. Polarized: Making Sense of a Divided America. Princeton University Press. 3. For overviews, see Cox, Gary W., and Jonathan N. Katz. 2002. Elbridge Gerry’s Salamander: The Electoral Consequences of the Reapportionment Revolution. New York: Cambridge University Press; Mann, Thomas E. and Bruce E. Cain. 2005. Party Lines: Competition, Partisanship and Congressional Redistricting. Washington, DC: Brookings Institution Press; and McGann, Anthony J., Charles Anthony Smith, Michael Latner, and Alex Keena. 2016. Gerrymandering in America: The House of Representatives, the Supreme Court, and the Future of Popular Sovereignty. New York: Cambridge University Press. 4. In North Carolina’s 2011 congressional district plan, the north-west portion of the intersection of Innes Street and Main Street in Salisbury resided in the 5th Congressional District. Cross Main or Innes and you would then be in the 12th Congressional District. Travel east on Innes and in an approximately mile, you would then be in the 8th Congressional District. 5. Bullock, 2. 6. Mann and Cain, 4. 7. McGann et al., 25. 8. States that don’t required contiguous congressional districts are Arkansas, Connecticut, Illinois, Indiana, Maryland, New Hampshire, New Jersey, Tennessee, and Wisconsin. National Conference of State Legislatures. “Redistricting Criteria.” April 23, 2019. https://www.ncsl.org/research/ redistricting/redistricting-criteria.aspx. Accessed December 15, 2020. 9. Quotation in Justice Potter Stewart’s concurring opinion in Jacobellis v. Ohio (378 U.S. 184 (1964), at 197): “I shall not today attempt further to define the kinds of material I understand to be embraced within (hardcore pornography); and perhaps I could never succeed in intelligibly doing so. But I know it when I see it, and the motion picture involved in this case is not that” (emphasis added). 10. Fenno, Richard F., Jr. 1978. Home Style: House Members in Their Districts. Boston: Little, Brown; and Mayhew, David R. 1974. Congress: The Electoral Connection. New Haven, CT: Yale University Press. However, some

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11. 12. 13. 14.

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believe that the incumbency advantage has diminished in recent times. See Jacobson, Gary C. 2015. “It’s Nothing Personal: The Decline of Incumbency Advantage in US House Elections.” The Journal of Politics. 77: 3 (July): 861–873. https://azredistricting.org/about-irc/FAQ.asp. Accessed December 17, 2020. https://www.ncsl.org/research/redistricting/redistricting-criteria-legisb rief.aspx. Accessed December 17, 2020. Author’s computations of precinct election results; ‘competitive’ is defined as being two-party results between 45 and 55 percent. Several works detail North Carolina’s political history: Christensen, Rob. 2008. The Paradox of Tar Heel Politics: The Personalities, Elections, and Events That Shaped Modern North Carolina. Chapel Hill: University of North Carolina Press; Cooper, Christopher and H. Gibbs Knotts, eds. 2008. The New Politics of North Carolina. Chapel Hill: University of North Carolina Press; Eamon, Tom. 2014. The Making of a Southern Democracy: North Carolina Politics from Kerr Scott to Pat McCrory. Chapel Hill, NC: University of North Carolina Press; Luebke, Paul. 1998. Tar Heel Politics. Chapel Hill: University of North Carolina Press. For general overviews of the state’s history: Powell, William S. 1989. North Carolina Through Four Centuries. Chapel Hill: University of North Carolina Press; Ready, Milton. 2005. The Tar Heel State: A History of North Carolina. Columbia, SC: University of South Carolina Press. Bitzer, J. Michael. 2021. “North Carolina: A Deeply Polarized State.” In The New Politics of the Old South: An Introduction to Southern Politics, ed. by Charles S. Bullock III and Mark J. Rozell. 7th Ed. Lanham, MD: Rowman & Littlefield.

CHAPTER 2

History of Redistricting Through the 1980s in the United States and North Carolina

Abstract This chapter presents a brief history of North Carolina’s redistricting up to World War II, followed by the U.S. Supreme Court’s redistricting revolution and the major cases impacting redistricting activities in the state. Congress enters the redistricting arena with the 1965 Voting Rights Act. North Carolina enacts new redistricting efforts following these congressional and judicial actions, leading to the 1985 Gingles case that presents the first major U.S. Supreme Court analysis of redistricting based on race. Keywords Redistricting revolution · North Carolina · Gerrymandering · 1965 Voting Rights Act · U.S. Supreme Court · Thornburg v. Gingles

Unlike other states, North Carolina’s early redistricting efforts were more organic in design, rather than focused on partisan gerrymandering. Guided by Jeffersonian democracy, the state’s initial history of being the Rip Van Winkle of the early 1800s made redistricting a fairly benign effort. Once the state awoke and became politically competitive in the 1840s, redistricting rose to its traditional partisan divisions. Yet it wouldn’t be until the middle of the twentieth century that national

© The Author(s), under exclusive license to Springer Nature Switzerland AG 2021 J. M. Bitzer, Redistricting and Gerrymandering in North Carolina, Palgrave Studies in US Elections, https://doi.org/10.1007/978-3-030-80747-4_2

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dynamics impacted North Carolina’s, and other states’, redistricting activities. Beginning in the midst of the 1960s civil rights movement, a series of federal decisions significantly reshaped redistricting practices and processes. This chapter briefly reviews the history of redistricting, focusing on the ‘redistricting revolution’ that emerged from the U.S. Supreme Court in the mid-1960s, along with the Voting Rights Act of 1965 and the changes brought to the act through the 1980s. Finally, the chapter examines North Carolina’s resulting redistricting process, both from a legal and political viewpoint, as well as the state’s emerging role in defining the jurisprudence of the Voting Rights Act in the 1980s.

North Carolina’s Redistricting Up to World War II Following independence, North Carolina’s redistricting efforts generally followed a geography dynamic to creating districts. In the first state constitution, each county received one senator and two members of the house.1 This county-based representation system for the state’s General Assembly lasted until the 1980s. For congressional districts, North Carolina’s initially populated eastern section of the tidewater and coastal plains allowed for creating congressional districts by simply combining counties, with subsequent districts proceeding inland into the modern Piedmont and eventually the western/mountains regions (see Map 2.1). Often the

Wilkes

Stokes

Yadkin

Forsyth

Guilford

Madison

Iredell

Yancey Burke

Buncombe

McDowell

Catawba

Rutherford Jackson

Clay

Wilson

Chatham

Randolph

Tyrell

Edgecombe

Johnston

Rowan

Martin

Pitt

Polk

Dare

Washington

Beaufort

Hyde

Greene Wayne

Harnett

Cabbarus

Lenoir

Moore

Cleveland

Gaston Cumberland Richmond

Macon

Cherokee

Nash Durham

Craven Pamlico

Stanly

Henderson

Graham

Bertie Orange

Lee Lincoln

Haywood Swain

Halifax

Wake Davidson

Hertford

Warren

Franklin

Davie

Caldwell

Mountains

Person Granville

Rockingham Caswell

Avery

Gates

Northhampton Vance

Surry

Alamance

Alleghany Ashe Watauga

Tide Line

Fall Line

Piedmont

Ridge Line

Union

Jones Sampson Duplin

Hoke

Onslow

Anson

Carteret

Scotland Robeson

Bladen

Pender

New Hanover

Columbus

Coastal Plain

Tide Water

Brunswick

Map 2.1 North Carolina counties and geographic regions (Based on: https:// www.ncpedia.org/our-state-geography-snap-three)

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eastern districts were centered on a port city and followed the tributary streams inland, bringing in the counties surrounding those rivers. The coastal cities of New Bern and Wilmington often anchored the eastern districts, while inland districts focused on trading cities such as Raleigh, Greensboro, Salisbury, and Fayetteville (see Maps 2.2, 2.3, and 2.4). In the first half of the nineteenth century, North Carolina laid dormant in its “Rip Van Winkle” Jeffersonian state, due to the eastern section, being

Roanoke Yadkin Cape Fear

Edenston & Newbern

Map 2.2 North Carolina congressional divisions, enacted 1789, used 1789 elections (Source https://github.com/JeffreyBLewis/congressional-district-bou ndaries/blob/master/North_Carolina_1_to_1.geojson; Congressional Division Names: Cheney, John J., Jr. 1975. North Carolina Government: 1585–1974. Raleigh, NC: North Carolina Department of the Secretary of State. Page 660)

Centre Roanoke Albemarle

Yadkin

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Map 2.3 North Carolina congressional divisions, enacted 1790, used 1790 elections (Source https://github.com/JeffreyBLewis/congressional-district-bou ndaries/blob/master/North_Carolina_2_to_2.geojson; Congressional Division Names: Cheney, John J., Jr. 1975. North Carolina Government: 1585–1974. Raleigh, NC: North Carolina Department of the Secretary of State. Page 662)

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Map 2.4 North Carolina congressional districts, enacted 1792, used 1792– 1802 elections (Source https://github.com/JeffreyBLewis/congressional-dis trict-boundaries/blob/master/North_Carolina_2_to_2.geojson; Congressional District Numbers: Cheney, John J., Jr. 1975. North Carolina Government: 1585–1974. Raleigh, NC: North Carolina Department of the Secretary of State. Page 664)

mostly content with their privileged lives and able to politically control the state, believing that little government activity was the best. In doing so, no redistricting of congressional districts occurred between 1812 and 1843. With the second party system of Jacksonian Democrats and Whigs, counties began to divide into partisan loyalty, and often congressional districts reflected those pairings and the partisan divide. Congressional districts were redrawn in 1843, and then again in 1847 until 1852. The Civil War broke that partisan pairing approach to North Carolina’s congressional redistricting. With the North Carolina Republican Party’s rise, composed of Black voters in the east paired with White transplants in the western foothills, conservative Democrats sought to minimize Republican chances by packing eastern Black votes into the state’s northeastern corner, which became known as the “Black Second.” Meandering over ten counties, the Black Second sent the nation’s second African American U.S. Representative to Congress, and would send three Black Republicans until the 1900 disenfranchising constitutional amendment that denied Blacks voting rights.2

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By packing Black Republican votes into the Second, White conservative Democrats effectively cracked White Republican votes in the foothills and Piedmont, thereby dominating the congressional delegations. This cracking continued into the age of White Democratic supremacy in the first half of the twentieth century, with Democrats isolating and neutralizing Republicans in the Piedmont and mountains by pairing those region’s counties with Democratic-leaning counties into ‘bacon-strip’ districts. The Eighth’s 1911 configuration best representing this ‘slicing’ as a single-county wide district that stretched more than 150 miles (see Map 2.5), followed by the Ninth drawn in 1931 (see Map 2.6). With Black voters effectively removed and North Carolina joining the rest of the solid White Democratic South, Tar Heel Republicans won only two congressional contests between 1908 and 1948.

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Map 2.5 North Carolina congressional districts, enacted 1911, used 1912– 1930 elections (Source https://github.com/JeffreyBLewis/congressional-dis trict-boundaries/blob/master/North_Carolina_2_to_2.geojson; Congressional District Numbers: Cheney, John J., Jr. 1975. North Carolina Government: 1585–1974. Raleigh, NC: North Carolina Department of the Secretary of State. Page 712)

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Map 2.6 North Carolina congressional districts, enacted 1931, used 1932– 1940 elections (Source https://github.com/JeffreyBLewis/congressional-dis trict-boundaries/blob/master/North_Carolina_2_to_2.geojson; Congressional District Numbers: Cheney, John J., Jr. 1975. North Carolina Government: 1585–1974. Raleigh, NC: North Carolina Department of the Secretary of State. Page 718)

U.S. Supreme Court Initiates the Redistricting Revolution In the mid-twentieth century, the U.S. Supreme Court entered the political fray and exerted its authority over state redistricting practices. At first, in the 1946 case of Colegrove v. Green, the high court decided that state redistricting issues were a political thicket the judiciary could not resolve.3 The court based this avoidance on justiciability, or the conditions in which the courts can resolve a legal dispute. One condition is the ‘political question,’ when the courts will not engage in a politically-charged controversy that should be resolved by the elected branches. In Colegrove, the court invoked the political questions doctrine that Congress should resolve redistricting controversies under Article I, Section 4’s ‘guarantee clause’ of the U.S. Constitution. However, in 1962s Baker v. Carr, the high court held that Tennessee’s state legislature, which had not been reapportioned since 1900, represented “a denial of equal protection” under the U.S. Constitution’s Fourteenth Amendment.4 Over those sixty years, Tennessee’s population grew from a little over 2 million to over 3.5 million, yet the state’s general assembly failed to reapportion and redraw to account for

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the population increases and shifts. Justice William Brennan’s majority opinion brought Tennessee’s lack of apportionment and districting action under federal government oversight by overturning Colegrove. In Baker, Brennan noted that “the question here is the consistency of state action” with the federal constitution’s Fourteenth Amendment, and thus opened state redistricting and reapportionment action to federal judicial review.5 Supreme Court action on redistricting continued in 1963 with a unique case regarding counties and legislative representation, which solidified the high court’s interventions to ensure voting based on population equality. In 1917, Georgia created the county unit system, which delegated a specific number of state representatives to each county. Acting as a state version of the Electoral College, the system awarded rural counties more power by designating eight counties as urban (each assigned six-unit votes), another thirty counties as town (assigned four-unit votes each), and 121 counties as rural (assigned two-unit votes). The system’s rural county advantage held sway in primary elections, the only meaningful election at the time. Following the 1960 census, rural counties accounted for less than a third of Georgia’s population, yet they controlled 59 percent of the unit votes.6 The least populous of state’s 159 counties, Echols County, had 1876 residents, compared to the state’s largest county, Fulton, with 556,326. A legal challenge to the system ended up in the nation’s highest court in 1963s Gray v. Sanders.7 Justice William O. Douglas wrote that “one resident in Echols County had an influence in the nomination of candidates equivalent to 99 residents of Fulton County.”8 This urban–rural imbalance violated the Fourteenth Amendment’s equal protection clause, along with the fact that the federal constitution “implied nothing about the use of” a comparable federal analogous to the Electoral College for the states.9 Douglas went on to question the unit’s power: How then can one person be given twice or 10 times the voting power of another person in a statewide election merely because he lives in a rural area or because he lives in the smallest rural county? Once the geographical unit for which a representative is to be chosen is designated, all who participate in the election are to have an equal vote—whatever their race, whatever their sex, whatever their occupation, whatever their income, and wherever their home may be in that geographical unit. This is required by the Equal Protection Clause of the Fourteenth Amendment. The concept of ‘we the people’ under the Constitution visualizes no preferred class of voters but

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equality among those who meet the basic qualifications. The idea that every voter is equal to every other voter in his State, when he casts his ballot in favor of one of several competing candidates, underlies many of our decisions.10

As a result, the U.S. Supreme Court pronounced that a variety of American political thinking and action—from the “Declaration of Independence, to Lincoln’s Gettysburg Address, to the Fifteenth, Seventeenth, and Nineteenth Amendments”—equated to a core principle: one person, one vote.11 In 1964, the U.S. Supreme Court handed down two opinions implementing this core principle. In February, the Court decided another Georgia case, Wesberry v. Sanders, regarding the unequal population of its congressional districts.12 Created in 1931 and centered in Atlanta and across three counties, the Fifth eventually grew to a population of over 823,000 residents in the 1960 census, the largest in Georgia. The state’s other ten congressional districts had an average of slightly under 400,000 residents, with the Ninth at 272,000, or less than one-third of the Fifth. Justice Hugo Black held Georgia’s malapportionment “contracts the values of some votes and expands that of others,” and that “one man’s vote in a congressional election is to be worth as much as another’s.”13 Black ended his opinion with this observation: While it may not be possible to draw congressional districts with mathematical precision, that is no excuse for ignoring our Constitution’s plain objective of making equal representation for equal numbers of people the fundamental goal for the House of Representatives. That is the high standard of justice and common sense which the Founders set for us.14

Subsequent Supreme Court rulings (1969’s Kirkpatrick v. Presiler 15 ) held that congressional districts must meet a strict ‘one person, one vote’ equal population standard, but that state legislative districts could deviate in population (1973’s Mahan v. Howell 16 ). The second malapportionment case of 1964 dealt with Alabama’s state legislature. Like Tennessee, Alabama had failed to reapportion its state legislative districts since 1900, even though its state constitution required members of the bicameral legislature be apportioned “among the several counties” following each census year. The state constitution also said that no Alabama county “shall be divided between two districts, and no district

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shall be made up of two or more counties not contiguous to each other.” The case of Reynolds v. Sims alleged that not only had Alabama refused to reapportion its legislature since 1900, but a 1962 stop-gap reapportionment aggravated the unequal population distribution by counties serving as legislative districts.17 The district court determined that 37 percent of the state’s population could elect a majority of Alabama’s state house, while a little over 19 percent could control the state senate. The trial declared the House apportionment plan unconstitutional and, following submission of new plans by the state legislature, issued its own temporary redistricting plan. On appeal, the U.S. Supreme Court upheld the lower court’s ruling, with Chief Justice Earl Warren holding: The right to vote freely for the candidate of one’s choice is of the essence of a democratic society, and any restrictions on that right strike at the heart of representative government. And the right of suffrage can be denied by a debasement of dilution of the weight of a citizen’s vote just as effectively as by wholly prohibiting the free exercise of the franchise.18

Warren noted that “Legislators represent people, not trees or acres. Legislators are elected by voters, not farms or cities or economic interests.”19 Because state legislatures are “the fountainhead of representative government in this country,” the principle of equal protection extends to these bodies, “which are collectively responsive to the popular will.”20 Warren held that equal protection “demands no less than substantially equal state legislative representation for all citizens, of all places as well as of all races.”21 Dismissing the argument that states could internally apportion themselves in a manner akin to the U.S. Senate’s two-member representation, Warren held that “subdivisions of States—counties, cities, or whatever—never were and never have been considered as sovereign entities,” but rather administrative and subordinate bodies.22 Warren did recognize the uniqueness of the states and laid out “flexibility” for reapportioning and redistricting their legislative bodies: A State may legitimately desire to maintain the integrity of various political subdivisions, insofar as possible, and provide for compact districts of contiguous territory in designing a legislative apportionment scheme. Valid considerations may underlie such aims. Indiscriminate districting, without any regard for political subdivision or natural or historical boundary lines, may be little more than an open invitation to partisan gerrymandering.

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Single-member districts may be the rule in one State, while another State might desire to achieve some flexibility by creating multi-member or floterial districts.23

Warren held that “deviations from the equal population principle” may be allowed, so long as states advanced a “rational state policy.”24 The U.S. Supreme Court’s lineage of redistricting cases from the 1960s marks a significant shift in the power of federal courts over the states when it comes to apportionment and districting. That influence continued over time, with different swings back and forth related to redistricting and on numerous other aspects, beyond just the numbers in districts. But the nation’s highest court wasn’t the only branch of the federal government to have a say in how states draw their legislative districts. The federal government’s other branches would have their own input on redistricting activities as well.

Congress Enters the Redistricting Fray With 1960’s America in the midst of the Second Reconstruction, Congress and the president joined the Supreme Court in addressing voting and redistricting, notably by the 1965 Voting Rights Act (VRA). One of the most consequential pieces of legislation of the twentieth century,25 the act reshaped how southern states could affect their election laws and voting requirements.26 Designed to address the region’s segregationist election and voting laws, the VRA preempted state laws denying African Americans the right to vote. Enacted following Reconstruction, Jim Crow laws and policies allowed Southern whites to deny black citizens their right to vote through literacy tests, poll taxes, white primaries, and grandfather clauses. In implementing these policies, Southern states effectively disenfranchised their black citizens.27 In the first half of the twentieth century, Black participation in voting and Southern politics dropped significantly. Their denial of civic participation led to the U.S. Commission on Civil Rights finding that in 1959, only a quarter of nearly five million Black Americans of voting age were registered in the South. While voter registration improved somewhat over the subsequent decade, Congress responded with a Second Reconstruction effort by passing civil rights acts in 1957, 1960, and, most importantly, 1964, along with a constitutional amendment ratified that same year banning poll taxes.

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However, Southern intransigence continued in the form of massive resistance.28 These denials often led to violent responses, especially on “Bloody Sunday,” March 7, 1965, in Selma, Alabama. Following national televised coverage of White police officers beating and trampling civil rights advocates marching across the Edmund Pettus Bridge for the right to vote, President Lyndon Johnson sought “the goddamndest, toughest voting rights act” from his attorney general and the Democraticallycontrolled Congress.29 On March 15, President Johnson outlined the bill’s tenants before Congress, calling the Selma beatings “a turning point in man’s unending search for freedom.” In doing so, the Southern-born and raised president made the legislation not just about civil rights for black Americans, “but really it is all of us, who must overcome the crippling legacy of bigotry and injustice. And we shall overcome.”30 Within four months, Congress passed the 1965 Voting Rights Act. In Section 2, Congress restated the Fifteenth Amendment and banned discriminatory tactics as literacy tests, understanding tests, and ‘good character’ tests, which Southern local election officials had used, often in arbitrary fashion. Section 4 targeted Southern states with histories of using such tactics—Alabama, Georgia, Louisiana, Mississippi, South Carolina, and Virginia—along with thirty-nine counties in North Carolina (an additional county would be covered in 1975). Section 4 created a ‘trigger’ formula with two components: whether a jurisdiction utilized a test or device that was required prior to registering to vote, and where less than half of the voting-age population had either registered or cast ballots in the 1964 presidential election.31 If the trigger was met, a jurisdiction was considered covered by the VRA. Once covered by Section 4, the VRA’s Section 5 froze those states and jurisdictions’ ability to adopt new requirements or change their existing election laws without federal approval. Known as federal preclearance, Section 5 denied changes to electoral practices, such as rules or laws under which an election would be administered, relocating of a voting location, or implementing a new districting plan.32 States could obtain federal approval from two different venues: the U.S. Attorney General or from the federal District Court for the District of Columbia. If a state sought the judicial route, the U.S. Attorney General served as the defendant in the case against the state.33 The VRA also allowed federal officials to registered citizens who had been denied by local election officers, as well as have federal observers monitor Election Day operations.34

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In order to gain federal approval, the covered jurisdiction had to prove that any changes would not negatively impact African American citizens. Once a jurisdiction submitted changes, the attorney general, typically via the assistant attorney general for civil rights, could review the plan for up to 60 days. If no action was taken, the plan was considered approved. If DOJ believed the proposed changes had a discriminatory purpose or effect, it would interpose an objection, effectively rejecting the changes, with a letter sent to the jurisdiction outlining the issues and concerns. A jurisdiction could appeal to the District Court for the District of Columbia and seek the court’s approval. One other congressional action from the 1960s impacted state redistricting processes. In 1967, Congress passed Public Law 90-196, which mandated single-member districts and disallowed at-large congressional representation.35 Prior to this act, Congress had stipulated a series of conditions for House districts. In 1842’s apportionment act, representatives had to be elected “by districts composed of contiguous territory equal in number to the number of Representatives” apportioned in singlemember districts. The 1872 apportionment act included the previous requirements, along with equal population “as nearly as practicable,” while in the 1880 and 1900 apportionment acts, Congress required states to draw districts “composed of contiguous territory, and containing as nearly as practicable an equal number of inhabitants, and equal in number to the Representatives to which such State may be entitled in Congress, no one District electing more than one Representative.”36 Congress deleted these conditions in the 1929 Permanent Apportionment Act, allowing the states to devise congressional districts as they saw fit, without concerns about compactness, contiguousness, and equal population requirements. A 1941 law did provide for contingencies if a state failed to redistrict, including representation at-large. However, the 1967 law’s requirement that House candidates run in single-member districts, rather than at-large contests, posed a potential conflict with the 1941 law. The 1967 legislation was crafted in an unusual manner, having been attached to a private immigration act, with no hearings or testimony provided. Thus, the 1941 and 1967 laws conflicted over the manner in which representatives should ‘represent’: either a single member district or, potentially, at-large.37

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Expanding Voting Rights in the 1970s and 1980s The 1965 Voting Rights Act served as a powerful tool in reshaping the federal government’s relationship with the states and its citizens. Recognizing the extraordinary power shift, Congress initially limited Section 5 coverage to five years. However, nearing the end of the first five years, Congress extended coverage in 1970 for another five years, and added new requirements expanding the act’s coverage beyond the South. The 1970 triggering provision covered any jurisdiction where less than half of the adult population had been registered or voted in the 1968 presidential election. It also banned on all forms of literacy tests and extended coverage to 1975. The subsequent 1975 extension of the VRA included a longer extension—seven years—to cover the redistricting process following the 1980 Census, along with a third ‘trigger’ provision that focused on Hispanic, Native American, and Alaskan native citizens. Coverage now included jurisdictions with a single-language minority group that was 5 percent of the population, that had Englishonly language election materials in 1972, and that contained less than half of the voting-age population registered or voting in the 1972 presidential election.38 In 1982, when the act was up for renewal, Congress did not add any new trigger provisions, but extended coverage for twenty-five years. However, a ‘bail-out’ provision was added that allowed covered jurisdictions to be removed from federal oversight. In 2006, before the twentyfive-year extension expired, Congress debated and renewed Section 5 for another twenty-five years. During this reauthorization debate, Republican U.S. Representative Charlie Norwood of Georgia offered an amendment to update the ‘trigger’ provisions regarding the data from the 1964, 1968, and 1972 elections. Norwood’s “dynamic trigger” would use the most recent three presidential elections. If a jurisdiction had less than half of its voting-age population in any of those elections, coverage would commence. While the amendment failed, concerns were raised regarding the use of data from the mid-twentieth century for coverage purposes. That concern over using 1960s and 1970s data would come to fruition in a 2013 U.S. Supreme Court case with major ramifications of the Voting Rights Act and on redistricting activities, especially in North Carolina.

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The Redistricting Revolution and VRA Comes to North Carolina During the Supreme Court’s redistricting revolution, a September 1965 lawsuit, Drum v. Seawell, challenged North Carolina’s redistricting plans for both the state legislative and congressional maps, not just on federal constitutional issues, but also state constitutional provisions.39 In the 1836 and 1868 North Carolina Constitutions, each county had one representative in the 120-member state house of representatives, with the remainder apportioned to the largest populated counties. The provisions were written when there were 65 counties; in 1961, the state had 100 counties. In the upper chamber, the 50-member state senate was divided into thirty-six districts, with twelve districts having multimembers assigned to them (either two or three members). Having failed to redistrict between 1942 and 1961 (see Map 2.7), the legislature reapportioned the state house and congressional districts, but failed to redistrict the state senate.40 The congressional map dealt with significant population issues, primarily driven by the growing Piedmont section against the decreasing eastern section. But eastern Democrats controlled redistricting and targeted the first Republican congressman elected from

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Map 2.7 North Carolina congressional districts, enacted 1941, used 1942– 1960 elections (Source https://github.com/JeffreyBLewis/congressional-dis trict-boundaries/blob/master/North_Carolina_2_to_2.geojson; Congressional District Numbers: Cheney, John J., Jr. 1975. North Carolina Government: 1585–1974. Raleigh, NC: North Carolina Department of the Secretary of State. Page 722)

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the Piedmont since 1928, Charles Jonas of the Eighth District.41 The resulting dragon-like district double-bunked Jonas with Democrat Paul Kitchen, whose old district served as the core of the new Eighth. But sometimes partisan gerrymandering can backfire, as it did when Jonas “sounded defeated Kitchen in the 1962 election.” The mischievous redrawing also elected the state’s second twentieth century Republican representative in the adjoining Ninth District.42 Two months after Drum was filed, a federal district court declared the three maps invalid and ordered new maps drawn by January 31, 1966. Noting the recent precedents of both Baker and Reynolds , Judge J. Spencer Bell wrote that the federal Fourteenth Amendment’s equal protection clause required equal representation in state legislative chambers, but that “mechanical exactness is not required.” While political subdivisions such as counties and cities could be recognized in redistricting efforts, they could not override population equality. Neither could historic groupings or economic interests dominate equal population.43 The court utilized two analytical methods: a population variance ratio, or the ratio between the most and least populous districts, and a minimum controlling percentage, or the percentage of the population residing in the least populous districts that could elect a majority of either state chamber. Based on the population variance ratio, only two of the eleven congressional districts were within 5 percent of the state’s ideal population; six districts varied by more than 10 percent, four more than 15 percent. The First Congressional District held 136,000 fewer citizens than the ideal population, while the Eighth District was 77,265 more, creating a population variance of 1.8 to 1. The court held “Such a variance cannot be justified.”44 Regarding the state legislative districts, while the proportional representation of the state house was 37,968 citizens to each member, the population variance was 18.2 to 1, with counties like Tyrrell having only 4520 for its member while Wayne had slightly over 82,000 for its member. Out of 4.5 million residents in the 1960 Census, 1.2 million North Carolinians in sixty-one counties could elect a majority of the state house, a 27 percent minimum controlling ratio. In the state senate, the minimum controlling percentage was 47, while the population variance ratio was 2.3 to 1. The court noted that the ideal representation for each senate district was 91,123, yet the populations ranged from 65,722 to 148,418. Even though the senate was seen as “far more nearly equitable than that of the House,” the court invalidated both chambers’ districts.45

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Noting that North Carolina had no initiative or referendum process and that the governor lacked veto power over legislation, including redistricting bills, the court held that “the people of the State have no practical means by which to rectify an imbalance of representation in one of the most powerful legislative bodies in America” and voided the constitutional provisions regarding state legislative apportionment, based on the U.S. Constitution’s Fourteenth Amendment and the equal protection clause.46 The court allowed the state legislature to redistrict itself, but said that the court “will regretfully undertake to fashion a scheme of apportionment” before the 1966 elections, in order to create a “just and equitable” apportionment.47 The U.S. Supreme Court affirmed the ruling on April 4, 1966.48 In December 1965, Democratic Governor Dan Moore called his party’s General Assembly into special session for January 10, 1966, to redraw the state legislative and congressional districts. A joint committee on congressional districts (which included Republicans when the previous redistricting had not) devised five redistricting rules. First, of the statewide average of 414,196 people per district, the districts could deviate in population at least 5 percent, and no more than 10 percent, though the court had not indicated what parameters would be constitutional. Second, counties would be kept whole (based on the state’s history of not dividing counties in previous redistricting efforts) and that “communities of interests have grown among the residents of several counties” and for the ease of election administration. Next, congressmen would be required to reside in a single-member district. Fourth, with nine incumbent Democrats who held high levels of congressional seniority, no incumbent would necessarily be placed with another sitting representative (this did not necessarily apply to the two Republican incumbent representatives). Finally, districts would be contiguous and compact as possible, though the likelihood that compactness would be the first standard to be discarded due to three Democratic incumbents residing in three adjacent counties.49 When the final congressional map was released, it wasn’t just the standard of compactness that had been disregarded (compare Maps 2.8 and 2.9). The revised map “upset several traditional county alliances” that had been formed over time, especially among Piedmont legislators. For example, the Fifth District connected Forsyth and Orange counties by skipping over three different counties between them, and instead used counties to the north that ran along the Virginia border. If pulled out to

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Map 2.8 North Carolina congressional districts, enacted 1961, used 1962– 1964 elections (Source https://github.com/JeffreyBLewis/congressional-dis trict-boundaries/blob/master/North_Carolina_2_to_2.geojson; Congressional District Numbers: Cheney, John J., Jr. 1975. North Carolina Government: 1585–1974. Raleigh, NC: North Carolina Department of the Secretary of State. Page 730)

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Map 2.9 North Carolina congressional districts, enacted 1966, used 1966 elections (Source https://github.com/JeffreyBLewis/congressional-district-bou ndaries/blob/master/North_Carolina_2_to_2.geojson; Congressional District Numbers: Cheney, John J., Jr. 1975. North Carolina Government: 1585–1974. Raleigh, NC: North Carolina Department of the Secretary of State. Page 732)

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stand alone, the Fifth resembled a highway overpass. Even though they controlled the process, not all Democrats were happy with the changes. Regarding the new Ninth, which became more Republican than its earlier version, a Democratic state senator from Rowan County remarked that the plan “created a district in which the Apostle Paul couldn’t be elected on the Democratic ticket,” while a Caldwell County Democratic colleague observed that “if you paint a worm red and turn him loose, he couldn’t make a bigger mess.”50 Even with Democratic objections, the plan was adopted, with two significant changes. Bladen County, historically part of the Seventh District as one of the Cape Fear River counties, was moved back to the Seventh District from the Third District, and Warren County was moved from the Second Congressional District to the First Congressional District, which prompted a state representative to observe, “This proposal reminds me of a new kind of stereo deodorant—it doesn’t stop the smell, you just can’t tell where it comes from.”51 With these changes, the population equity standard was sacrificed for traditional county groupings, presumably based on keeping communities of interest intact. The final plans also tested the principles of compactness and contiguity, most notably the new Fourth, which stretched from the middle of the Piedmont to Nash County, east of Wake County and barely joined by the intersection of Wake, Nash, and Johnston counties. While a Republican legislator called the new plan a “gerrymander of the other gerrymander,” the map saw a population average deviation of −8.91 to +8.39% and a population variance ration of 1.19 to 1.52 Despite these issues, Democrats easily passed the plan for judicial review. The state house and senate revisions continued the whole county principle and used multi-member districts in the populous urban counties. The state house redistricting involved grouping many of the lowest population counties into one district, resulting in “the most significant and painful political consequence of the whole apportionment process.”53 Ultimately, the state house proposal created forty-nine representative districts, holding between one and six counties, with one to seven representatives allocated to each district. The minimum controlling percentage resulted at 48, the population variance ratio at 1.33 to 1, and the range of deviation from an average population of a little under 38,000 was −13 to +14 percent. For the state senate, thirty-three districts, containing from one to ten counties and electing from one to three senators, had fewer

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changes than the house, due to revisions made in a 1963 extra legislative session. Statistically, the senate districts saw a minimum controlling percentage of 49, population variance ratio of 1.32 to 1, and a range of population deviation off the average of 91,123 of between −14 and +12 percent.54 Upon review in 1966, the district court found the new state legislative districts met federal constitutional standards, namely due to the variations “taking the peculiar interests of the State and its geographic composition into consideration” and that, even with the whole county provision, both the state house and senate districts “appear to be reasonably compact.”55 However, the court objected to the congressional plan, due to the “over-emphasis on factors other than population” that “created excessive deviation.”56 Due to the focus on incumbency protection that created oddities in the Ninth and Tenth districts, the court held the population deviations unconstitutional: The tortuous lines which delineate the boundaries of many of the congressional districts under the proposed plan, the resulting lack of compactness and contiguity, and the failure to achieve equal representation for equal numbers of people as nearly as practicable compels us to hold that the congressional apportionment is constitutionally invalid.57

Interestingly, this was the first instance of a court focusing on “lack of compactness and contiguity” as a factor in determining a district’s constitutionality.58 The legislature returned to congressional redistricting in 1967, with redistricting guidelines of no more than 5 percent deviation from the 1960 census ideal population. While ensuring a level of ‘compactness,’ the legislature ‘double-bunked’ four incumbent congressmen, creating two districts with two sitting members in each. However, one Republican incumbent, James Gardner, decided not to run for the Second and sought the governorship instead, while another Republican, James Broyhill, was paired with Democratic Basil Lee Whitener in the new Tenth. Democrats believed Whitener could win in the Tenth, which cracked Republican voters. The Tenth, along with the Ninth, were among the most oddlydrawn districts in the map, utilizing county lines but seeking to break up the growing GOP base (see Map 2.10). The maps did represent some elements of homogeneity. For example, the western most district,

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Map 2.10 North Carolina congressional districts, enacted 1967, used 1968– 1970 elections (Source https://github.com/JeffreyBLewis/congressional-dis trict-boundaries/blob/master/North_Carolina_2_to_2.geojson; Congressional District Numbers: Cheney, John J., Jr. 1975. North Carolina Government: 1585–1974. Raleigh, NC: North Carolina Department of the Secretary of State. Page 734)

the Eleventh, held “the strongest historical basis” of all the redrawn lines, while the most eastern counties, drawn as the First, “maintain an unbroken record of being grouped in the same district through the state’s history.”59 However, no such historical ties were observed for the state’s center region. Each Piedmont district had its own “economic distinctiveness,” transportation patterns, and diversification of urban and rural populations.60 In addition, the districts’ contiguity was “better than that of the 1966 districts,” since there was “no county joined to the rest of a district by ‘mere touching’.” The use of county lines served as the map’s basis, which one analyst observed “may have to change in order the achieve the Supreme Court’s new demands for population equality.”61 Ultimately, despite the issue of tortuous lines, that same analyst wrote that the 1967 congressional map was “worthy of consideration as the best the state has ever experienced,” and noted that redistricting, “if performed by adhering to the multi-faceted standards as closely as possible, is by no means a simple task.”62 While North Carolina was redrawing its congressional map in 1967, Missouri did the same under a court order as well. In a challenge to Missouri’s new maps, the U.S. Supreme Court returned to congressional redistricting and the population principle in 1969s Kirkpatrick

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v. Presiler.63 Missouri’s 1967 congressional districts deviated from the population ideal from +3.2 to −2.8 percent.64 An alternative plan would have smaller deviations, and a lower court ruled the redistricting plan violated the standards set forth in both Wesberry and Reynolds . Upon review, the U.S. Supreme Court, in an opinion written by Justice William Brennan, held that states must justify any deviations from the mathematical ideal, “no matter how small.”65 “Equal representation for equal numbers of people is a principle designed to prevent debasement of voting power and diminution of access to elected representatives,” Brennan wrote, adding that “[t]oleration of even small deviations detracts from these purposes.”66 A state could not use “history or economic interests” in determining a district’s shape. Brennan also addressed the issue splitting political subdivisions “by drawing congressional district lines along existing county, municipal, or other political subdivision boundaries.” Missouri contended that doing so would “minimize the opportunities for partisan gerrymandering.” However, Brennan countered that: an argument that deviations from equality are justified in order to inhibit legislators from engaging in partisan gerrymandering is no more than a variant of the argument, already rejected, that considerations of practical politics can justify population disparities.67

Interestingly, Brennan inserted a footnote regarding “partisan gerrymandering” that foreshadowed the practice’s possible future: It is dubious in any event that the temptation to gerrymander would be much inhibited, since the legislature would still be free to choose which of several subdivisions, all with their own political complexion, to include in a particular congressional district. Besides, opportunities for gerrymandering are greatest when there is freedom to construct unequally populated districts. ‘(T)he artistry of the political cartographer is put to its highest test when he must work with constituencies of equal population. At such times, his skills can be compared to those of a surgeon, for both work under fixed and arduous rules. However, if the mapmaker is free to allocate varying populations to different districts, then the butcher’s cleaver replaces the scalpel; and the results reflect sharply the difference in the method of operation.’68

Missouri argued that “to ensure effective representation for sparsely settled areas and to prevent legislative districts from becoming so large

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5 10 11

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Map 2.11 North Carolina congressional districts, enacted 1971, used 1972– 1980 elections (Source https://github.com/JeffreyBLewis/congressional-dis trict-boundaries/blob/master/North_Carolina_2_to_2.geojson; Congressional District Numbers: Cheney, John J., Jr. 1975. North Carolina Government: 1585–1974. Raleigh, NC: North Carolina Department of the Secretary of State. Page 734)

that” citizens would not be able to access their representatives. Citing modern transportation and communication, Brennan held the argument was “for the most part, unconvincing.”69 Equal populations among congressional districts was now a fundamental redistricting component: “The ‘as nearly as practicable’ standard requires that the State make a good-faith effort to achieve precise mathematical equality.”70 As the Missouri case worked its way to the high court, North Carolina’s General Assembly submitted a constitutional amendment to voters in 1968 regarding a “whole county” provision as a criterion for redistricting state legislative districts. In doing so, the amendment required that each member represent “as nearly as may be, an equal number of inhabitants” for the districts, while not dividing any of the one hundred counties. When North Carolina voters adopted the amendment, it was not submitted to the federal government for “preclearance” under the 1965 Voting Rights Act until 1981. At that time, the U.S. Department of Justice rendered the constitutional provision unenforceable by not granting preclearance. When the whole county provision was used as a legal challenge in the 1980s against district maps that split counties, a federal district court held that the state law had no force or effect due to DOJ’s refusal to preclear the amendment.71

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Following the 1970 Census, the general assembly redrew the congressional (see Map 2.11) and state legislative districts, again without splitting counties. The U.S. Department of Justice precleared the maps for use, and those maps held until the subsequent 1980 Census.72 These maps would be the last unchallenged set that North Carolina’s General Assembly would draw for the next forty years.

The 1980s Brings the Redistricting Fight to Black and White North Carolina The 1980 Census brought not just the issue of redistricting, but the growing power of African American voters and their desire for representation, into the forefront of the redistricting process. North Carolina’s 1981 redistricting is notable in distinct ways. White Democrats, especially the state’s White Democratic congressmen, “openly manipulated redistricting to buttress their positions against candidates who might appeal to black voters.” Secondly, the interaction among the state’s racial, political, and incumbent-protection dynamics were greatly impacted whenever a slight “ripple effect” resulted from moving district lines. Finally, as interpreted by the DOJ, the VRA “constrained racially discriminatory legislative actions—but not very much.”73 Control by White Democratic congressman over the legislative process was challenged by Black Democrats with growing aspirations for political office and power.74 Although North Carolina’s black population was 23 percent in 1970, only one of the 170-member General Assembly was African-American. By 1980, Black members held just four seats.75 Black participation didn’t suffer in legislative representation alone. In 1972, compared to 60 percent of voting-age Whites, only 44 percent of votingage Blacks were registered to vote, the lowest of any Southern state.76 Ten years later, barely 53 percent of voting-age Black North Carolinians were registered, compared to two-thirds of White North Carolinians.77 Democrats began the 1981 redistricting process under unified legislative control, but lacked party unity. North Carolina was one of seventeen states, and the only southern state, that used multi-member districts for both legislative chambers.78 Black Democrats and White Republicans argued against this technique that they felt deprived each of greater opportunities for representation. Since legislative districts were based on county lines, the most populous counties typically garnered more than

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one member in both chambers. Black Democrats and White Republicans advocated for single-member districts where there were significant Black populations.79 Due to segregated housing patterns in cities like Charlotte, Winston-Salem, and Greensboro, Black voters could elect one of their own if single-member districts were drawn, as well as Black voters concentrated in majority-minority eastern rural counties. In turn, the surrounding districts would be ‘bleached’ once Black (reliably Democratic) voters were removed, thus giving Republican candidates an advantage among White voters. This left White Democrats potential ‘losers’ who feared it could jeopardize the party’s legislative control. Concerned about giving up too many districts to Republicans by drawing Black-populated districts, Democrats drew the first maps with majority Black, single-member districts in VRA-covered counties. These districts elected new Black representatives, doubling their numbers to eight in the 1982 elections. Blacks, however, were still disappointed by white Democrats’ refusal to draw majority-minority districts in noncovered counties.80 The 1980’s first redistricting maps led to a lawsuit challenging the use of multi-member districts and the whole-county constitutional provision. In September 1981, four black plaintiffs, led by Ralph Gingles, filed a federal lawsuit against the state challenging that year’s redistricting efforts, specifically the 20 percent population deviations among the districts, the use of multi-member districts to submerge black voters, and the failure by the state to seek approval of the 1968 whole counties constitutional amendment. In response, the state submitted the constitutional amendment for preclearance. The state also submitted the redistricting maps to the Justice Department. In reviewing a covered jurisdiction’s proposed changes, the DOJ based their preclearance policy on comments made in 1980 by the U.S. assistant attorney general for civil rights: (C)onsideration given to minorities and the role played by minorities in shaping a redistricting or reapportionment plan goes further than any other single factor in assisting (DOJ) in determining whether minorities have a fair opportunity for an effective vote the plan.

In addition, Assistant A.G. Drew S. Days III laid out other factors used in DOJ’s review process:

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(T)he reasons that are stated as being responsible for the particular shape and location of the districts that were adopted; the nature of problems and conditions that affect minorities and the extent to which those concerns are shared by others in the geographical area; the success of minorities’ past efforts both to elect candidates of their choice under other apportionment plans, and to influence the legislative process; the history of discrimination against minorities in the electoral process and in legislative decisions that have been made; and, the extent to which minorities’ view were solicited and incorporated into the apportionment plan that was adopted.81

In November 1981, DOJ interposed North Carolina’s 1968 constitutional amendment regarding whole counties. By using the whole county provision, DOJ reasoned that North Carolina would then use large multi-member districts that “necessarily submerges cognizable minority population concentrations into larger white electorates,” thereby denying black voters an opportunity elect their preferred candidates.82 DOJ also objected to the state legislative and congressional maps in December 198183 and January 1982.84 Prior to DOJ’s objection to the whole county provision, the legislature reconvened in October 1981 to redraw the state house map. In this second version, the population deviations fell from 20 to 16 percent, but continued multi-member districts and kept counties whole.85 Following DOJ’s objections, the legislature convened again in February 1982. For the first time in the state’s history, the legislature split twentyfour counties in the state house map and eight counties in the state senate. The maps created the potential for four black single-member house districts and two black single-members districts in the state senate.86 For the congressional map, Democrats transferred Durham County, with its significant minority population, into the Second Congressional District, increasing the district’s black population to 40 percent. The revised congressional map also divided four counties (see Map 2.12). DOJ precleared the congressional map but objected to the state house and senate maps. In enacting the next set of state legislative maps in April 1982, the legislature split twenty-four counties in the house map and created four majority-minority single-member districts. In the senate map, seven counties were split and two northeastern senate districts were given increased minority populations. Both maps split Section 5 covered counties and non-covered counties.87 The DOJ precleared the state senate plan, but

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Map 2.12 North Carolina congressional districts, enacted 1981, used 1982–1990 elections (Source https://github.com/JeffreyBLewis/congressionaldistrict-boundaries/blob/master/North_Carolina_98_to_102.geojson)

objected to the state house plan, which was then redrawn a fourth time and incorporated a two-member district around Fort Bragg in the state’s eastern portion that was populated by Black citizens. The DOJ granted preclearance to the fourth state house plan, and the maps went into effect for the 1982 elections.88 In those elections, eleven Black candidates were elected to the state house, including five from multi-member districts, but no Black candidates won any senate races. While the 1982 rounds of redistricting were underway, Congress considered amendments to the 1965 Voting Rights Act, following the U.S. Supreme Court’s ruling in City of Mobile v. Bolden.89 Mobile’s city commissioners were elected at-large, and after the district court found the practice unconstitutional, the U.S. Supreme Court reversed. The court’s majority held that the plaintiffs bore the burden of proving “purposeful” discrimination to prove a violation of the Fourteenth Amendment’s equal protection clause, thus shifting the burden of discriminatory proof from those defending the electoral changes to those challenging the changes.90 Congress subsequently modified the VRA to clarify that proof of discriminatory intent was not necessarily required to establish a claim under Section 2. The 1982 VRA amendments had a significant impact on reviewing electoral changes in the covered jurisdictions, namely focusing on the “totality of circumstances” where a racial minority would have less opportunity to politically participate and elect representatives of their

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choice in comparison to other members of the electorate.91 In clarifying the law, Congress annunciated several factors to create ‘totality’: whether the socioeconomic status of Blacks were lower than Whites in a jurisdiction; whether a history of racial discrimination and/or discriminatory voting practices or procedures were used in the jurisdiction; whether overt or subtle racial appeals were used in electoral campaigns; the use of candidate slating process and the denial of minority groups to access in that process; the electoral success rate of minority candidates in comparison to their population percentages; and whether racially-polarized voting existed, namely, “how much evidence was there that whites would support a qualified black candidate?”92 In addition, the 1982 VRA amendments extended Section 5 for another fifteen years and created the new bail-out option. These VRA changes created a substantially new environment for legal challenges, and North Carolina would soon be at the forefront of judicial interpretation regarding these changes.

North Carolina’s Gingles Case The next critical action to confront North Carolina’s 1980 redistricting process would be this new judicial interpretation. While the state sought DOJ preclearance for the maps, the Gingles v. Edmisten suit worked its way through the court system. The state argued that the 1982 elections, with the revised districts, showed proof that black participation was increasing in terms of representation in the state legislature. However, the plaintiffs provided evidence for the new “totality of circumstances” factors regarding North Carolina’s electoral and political practices, especially focusing on six multi-member districts and six single-member districts and the issue of racial vote dilution and racially-polarized voting patterns.93 The plaintiffs pointed to the state’s discriminatory history between 1900 to the 1960s, along with the use of racial appeals as late as 1983 in the U.S. Senate contest between Republican Jesse Helms and Democrat Jim Hunt.94 In January 1984, a three-judge federal panel ruled the maps violated the VRA’s amended criteria and ordered the legislature to redistrict without multi-member districts. The legislature then drew seven Black house districts and two in the senate.95 Following the fifth round of state house and fourth round of state senate maps, the court cleared the way for the 1984 elections to be held. With these new districts, a record fourteen Black candidates won legislative seats. Yet white Democrats’ fears were

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realized in the surrounding districts, with Republicans in the state senate doubling from six to twelve and twenty new Republicans (from eighteen to thirty-eight) in the state house. This would be the highest number of GOP representatives up to that point in the twentieth century.96 North Carolina appealed the ruling to the U.S. Supreme Court, which rendered its first opinion on the 1982 VRA amendments in Thornburg v. Gingles .97 Justice William Brennan’s splintered majority opinion ultimately held that while multi-member districts can be utilized, such a district can show that it “operates to minimize or cancel out (a minority’s) ability to elect their preferred candidates.”98 “Stated succinctly, a bloc voting majority must usually be able to defeat candidates supported by a politically cohesive, geographically insular minority group.”99 Brennan laid out a three-prong test to prove a Section 2 violation: First, the minority group must be able to demonstrate that it is sufficiently large and geographically compact to constitute a majority in a single-member district. If it is not, as would be the case in a substantially integrated district, the multi-member form of the district cannot be responsible for minority voters’ inability to elect its candidates. … Second, the minority group must be able to show that it is political cohesive. If the minority group is not politically cohesive, it cannot be said that the selection of a multimember electoral structure thwarts distinctive minority group interests. … Third, the minority must be able to demonstrate that the white majority votes sufficiently as a bloc to enable it—in the absence of special circumstances, such as the minority candidate running unopposed…—usually to defeat the minority’s preferred candidate. … In establishing this last circumstance, the minority group demonstrates that submergence in a white multimember district impedes its ability to elect its chosen representatives.100

The court explained its approach to racial bloc voting, noting that “there is no simple doctrinal test for [its] existence.” Brennan acknowledged two competing principles at play: “the necessity of invalidating election practices that deny minorities equal access to the political process” while at the same time recognizing that “the Constitution does not guarantee any group the right to proportional representation.”101 However, when racially-polarized voting extends over time, the courts should take note. In North Carolina’s case, when three separate elections in each of the multi-member districts demonstrated that “blacks strongly supported

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black candidates, while, to the black candidates’ usual detriment, whites rarely did,” racial bloc voting had been shown.102 Brennan introduced four key principles to demonstrate raciallypolarized voting patterns. First, a minority group had to establish political cohesiveness by voting for its preferred candidate. Next, a white voting bloc had to have sufficient numbers and political strength to defeat those minority candidates. Third, the first two political and voting dynamics had to be validated in several elections. Finally, where there has been a history of racially-polarized voting patterns, one election that was free of racial bloc voting would not indicate the jurisdiction was thus free of the practice. However, when it came to statistically demonstrating raciallypolarized voting, Brennan gained support from only three other justices. In this plurality section, Brennan held that “the race of voters correlates with the selection of certain candidate or candidates; that is, it refers to the situation where different races (or minority language groups) vote in blocs for different candidates.”103 On the same day as the Gingles opinion was announced, the court ruled on partisanship’s role in redistricting. In 1981, Indiana’s Republican legislature had drawn maps with triple-member, double-member, and single-member districts, all designed to benefit Republicans. In the November 1982 elections, Democrats received 52 percent of the votes cast statewide for the state house but garnered only 43 of the 100-seat chamber. In the upper chamber, Democrats received 53 percent of the votes cast statewide, but secured only thirteen out of fifty seats (or 26 percent). In Davis v. Bandemer, Indiana Democrats alleged Republicans had intentionally “stacked,” or packed, Democratic voters some areas and “splintered,” or cracked, Democrats in other areas.104 Even though they elected their own, Democrats argued they wasted their votes, while other Democrats were separated from other like-minded voters. In Justice Bryon White’s opinion, the court reversed previous decisions on partisan gerrymandering to review Indiana’s maps, based on the constitutional issue of representation. White cited Gaffney v. Cummings , which held: Politics and political considerations are inseparable from districting and apportionment. The political profile of a State, its party registration, and voting records are available precinct by precinct, ward by ward. These subdivisions may not be identical with census tracts, but, when overlaid on

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a census map, it requires no special genius to recognize the political consequences of drawing a district line along one street rather than another. It is not only obvious, but absolutely unavoidable, that the location and shape of districts may well determine the political complexion of the area. District lines are rarely neutral phenomena. They can well determine what district will be predominantly Democratic or predominantly Republican or make a close race likely.105

White, however, rejected the lower court’s findings that the redistricting effort violated the Fourteenth Amendment’s Equal Protection Clause. White reiterated that past Supreme Court cases “clearly foreclose any claim that the Constitution requires proportional representation or that legislatures in reapportioning must draw district lines to come as near as possible to allocating seats to the contending parties in proportion to what their anticipated statewide vote will be.”106 Due to district-based, winner-take-all system of elections in the United States, the winning party in a district—even if it secured a narrow or plurality victory—will secure all of that seat, thus creating a given imbalanced result. As such, the court would not find that “a reapportionment law would violate the Equal Protection Clause because the voters in the losing party do not have representation in the legislature in proportion to the statewide vote received by their party candidates.”107 Only when “discrimination occurs … when the electoral system is arranged in a manner that will consistently degrade a voter’s or a group of voters’ influence on the political process as a whole” would the court find the action unconstitutional.108 White did elaborate on what would entail a degradation: “evidence of continued frustration of the will of a majority of the voters or effective denial to a minority of voters of a fair chance to influence the political process.” Ultimately, White’s majority opinion recognized that “district-based elections hardly ever produce a perfect fit between votes and representation.”109

North Carolina’s Racial Redistricting Establishes the Nation’s Legal Authority With the increased political power of Black North Carolinians and Republicans, North Carolina’s 1980 redistricting efforts brought about not just the divisive nature of race and redistricting, but one of the authoritative cases regarding the revised Voting Rights Act. By establishing the three-part test for Section 2 review (known now as the Gingles test),

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the U.S. Supreme Court enunciated when challenges could be made to state actions regarding electoral practices. The damage to Black North Carolinians by diluting their collective voting strength constituted a Voting Rights Act violation, where Black citizens could not “participate equally in the political process and to elect candidates of their choice.”110 In doing so, Gingles opened a thirty-year lineage of Supreme Court redistricting decisions regarding the race and redistricting, some of which continued to arise out of North Carolina. These cases would have significant impacts on redistricting principles and approaches, first with racial considerations, and then with partisan considerations.

Notes 1. N.C. Constitution of 1776, Sections 2 and 3. In addition, seven towns elected one house member each. 2. Anderson, Eric. 1981. Race and Politics in North Carolina, 1872–1901: The Black Second. Baton Rouge: Louisiana State University Press. 3. 328 U.S. 549 (1946). 4. 369 U.S. 186 (1962). 5. Ibid., 226. 6. https://www.georgiaencyclopedia.org/articles/counties-cities-neighb orhoods/county-unit-system. Accessed December 19, 2020. 7. 372 U.S. 368 (1963). 8. Ibid., 371. 9. Ibid., 378. 10. Ibid., 379–380. 11. Ibid., 381. 12. 376 U.S. 1 (1964). 13. Ibid., 7. 14. Ibid., 18. 15. 394 U.S. 526 (1969). 16. 410 U.S. 315 (1973). 17. 377 U.S. 533 (1964). 18. Ibid., 556. 19. Ibid., 562. 20. Ibid., 565. 21. Ibid., 568. 22. Ibid., 575. 23. Ibid., 578–579. 24. Ibid., 580. 25. May, Gary. 2013. Bending Towards Justice: The Voting Rights Act and the Transformation of American Democracy. New York: Basic Books.

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26. Bullock and Gaddie. 27. Kousser, J. Morgan. 1974. The Shaping of Southern Politics: Suffrage Restriction and the Establishment of the One-Party South, 1880–1910. New Haven, CT: Yale University Press. 28. Webb, Clive, ed. 2005. Massive Resistance: Southern Opposition to the Second Reconstruction. New York: Oxford University Press. 29. Mann, Robert. 1996. The Walls of Jericho. San Diego: Harcourt, Brace and Co., 448. 30. Lyndon B. Johnson’s Special Message to the Congress: The American Promise. March 15, 1965. http://www.lbjlibrary.org/lyndon-bainesjohnson/speeches-films/president-johnsons-special-message-to-the-con gress-the-american-promise. Accessed December 2, 2020. 31. Bullock and Gaddie, 11. https://www.justice.gov/crt/section-4-votingrights-act. Accessed December 1, 2020. 32. In Allen v. State Board of Elections (393 U.S. 544 (1969)), the U.S. Supreme Court gave a broad interpretation to what constituted a change in practices or procedures and who brought about the proposed changes (state or local officials). 33. https://www.justice.gov/crt/about-section-5-voting-rights-act. Accessed December 1, 2020. 34. https://www.justice.gov/crt/about-federal-observers-and-election-mon itoring. Accessed December 1, 2020. 35. Huckabee, David C. and L. Paige Whitaker. 2003. “Congressional Redistricting: Is At-Large Representation Permitted in the House of Representatives?” Congressional Research Service. August 7. 36. https://www.census.gov/history/pdf/1880_Apportionment.pdf and https://www.census.gov/history/pdf/1900_Apportionment.pdf. Accessed December 1, 2020. 37. Huckabee and Whitaker, ibid. 38. Bullock and Gaddie, 14. 39. 249 F. Supp. 877 (M.D.N.C. 1965). 40. “2011 Legislator’s Redistricting Guide,” 25. 41. Jonas first won election in the Tenth District in 1952. Cheney, 727. 42. Orr, 14–18. 43. Drum v. Seawell, 879. 44. Ibid., 880. 45. Ibid., 881. 46. Ibid., 880. 47. Ibid., 881. 48. “2011 Legislator’s Redistricting Guide,” 25. 49. Orr, 20. 50. Orr, 23. 51. Ibid.

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52. Ibid. 53. Sanders, John L. 1966. “Legislative Representation in North Carolina: A Chapter Ends.” Popular Government. February, 4. 54. Drum v. Seawell, 250 F. Supp. 922 (M.D.N.C. 1966), 924. 55. Ibid., 924. 56. Ibid. 57. Ibid., 925. 58. Orr, 108. 59. Orr, 110. 60. Ibid. 61. Orr, 108. 62. Orr, 114. 63. 394 U.S. 526 (1969). 64. Ibid., 528–529. 65. Ibid., 531. 66. Ibid., 531. 67. Ibid., 534. 68. Ibid., 536. Footnote 4. 69. Ibid., 536. 70. Ibid., 530–531. 71. Cavanagh v. Brock, 577 F. Supp. 176 (E.D.N.C. 1983). 72. “Bartlett v. Stephenson,” North Carolina Reports: Cases Argued and determined in the Supreme Court of North Carolina, 367. 73. Kousser 1999, 247. 74. Crow, Jeffery J., Paul D. Escott, and Flora J. Hatley Wadelington. 2019. A History of African Americans in North Carolina. 2nd Ed. Raleigh: N.C. Office of Archives and History. 75. Luebke 1998, 147. 76. Lewis, John and Archie E. Allen. 1972. “Black Voter Registration Efforts in the South.” Notre Dame Law Review. 48: 105, 119. This slip in 1972 to the bottom stood in contrast to North Carolina’s 1960 percentages, when Black voter registration was at 40 percent, the highest in the South (Luebke 1998, 146). 77. Thornburg v. Gingles, 478 U.S. 30 (1986), 39. 78. O’Connor, Paul T. 1990. “Reapportionment and Redistricting: Redrawing the Political Landscape.” North Carolina Insights. December, 36. 79. Ibid. 80. Luebke 1998, 147. 81. “Reapportionment and Redistricting Materials.” 1981. North Carolina Legislative Services Office, 31–32.

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82. Letter to Alex Brock by Wm. Bradford Reynolds, Assistant Attorney General, Civil Rights Division, dated November 30, 1981. https:// www.justice.gov/sites/default/files/crt/legacy/2014/05/30/NC1150.pdf. Accessed December 5, 2020. 83. https://www.justice.gov/sites/default/files/crt/legacy/2014/05/30/ NC-1155.pdf. Accessed December 5, 2020. 84. https://www.justice.gov/sites/default/files/crt/legacy/2014/05/30/ NC-1160.pdf. Accessed December 5, 2020. 85. Gingles v. Edmisten, 590 F. Supp. 345 (E.D.N.C. 1984), 350. 86. “2011 Legislators Redistricting Guide,” 26–27. 87. Gingles v. Edmisten, 351. 88. “2011 Legislator’s Redistricting Guide,” 26–27. 89. 446 U.S. 55 (1980). 90. Ibid., 67. 91. Luebke 1998, 149. 92. Luebke 1998, 151. 93. Luebke 1990, 119. 94. Snider, William D. 1985. Helms and Hunt: The North Carolina Senate Race, 1984. Chapel Hill: University of North Carolina Press. 95. Luebke 1990, 117. 96. Author’s computation of legislative seats held by political parties. 97. Thornburg v. Gingles, 478 U.S. 30 (1986). The case was renamed following Rufus Edmisten’s resignation as the state’s attorney general. 98. Ibid., 38. 99. Ibid., emphasis in original, 39. 100. Ibid., emphasis in original, 39. 101. Kosterlitz, Mary J. 1987. “Thornburg v. Gingles: The Supreme Court’s New Test for Analyzing Minority Vote Dilution.” Catholic University Law Review. 36: 531. 102. Thornburg v. Gingles, 59. 103. Ibid., 62. 104. 478 U.S. 109 (1986). 105. Ibid., 128. 106. Ibid., 130. 107. Ibid., 130. 108. Ibid., 132. 109. Ibid., 133. 110. Thornburg v. Gingles, 80.

CHAPTER 3

Race-Based Redistricting in the 1990s

Abstract With the 1990’s redistricting efforts, North Carolina again becomes a test case for both executive and judicial review of its congressional and state legislative redistricting efforts. Due to U.S. Department of Justice oversight, North Carolina creates a majority-minority district that becomes the centerpiece of litigation over racial gerrymandering and elevates the legal and political tensions between White and Black North Carolinians over district lines. North Carolina’s redistricting culminates in the U.S. Supreme Court’s Shaw decision. Keywords Redistricting · North Carolina · Racial gerrymandering · Majority-minority district · Shaw v. Reno

With the beginning of the 1990s, North Carolina not only gained a twelfth congressional seat, but experienced a prolonged battle over redistricting and race. This contentious decade-long fight culminated in two significant U.S. Supreme Court decisions that impacted claims of racial gerrymandering—what it is or wasn’t. Redistricting litigation became a full-time cottage industry, thanks partly to North Carolina. One attorney described the 1990’s redistricting activities as the “lawyers’ full employment act,” while another predicted that redistricting “litigation will take © The Author(s), under exclusive license to Springer Nature Switzerland AG 2021 J. M. Bitzer, Redistricting and Gerrymandering in North Carolina, Palgrave Studies in US Elections, https://doi.org/10.1007/978-3-030-80747-4_3

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a long time… It may not be resolved until 1994 or 1995 with a Supreme Court decision. It is going to be a fiasco.”1 Little did both know how prescient their observations would be, and how much that fiasco would be based on North Carolina’s redistricting efforts.

North Carolina’s Political Dynamics in the 1990s The 1990s stabilized a bifurcated political dynamic in North Carolina. The state continued the 1980s trend of Republicans generally winning at the federal office-level while Democrats held on to state offices, demonstrating the state’s intense partisan rivalry and divergent political nature. By the 1990s, both parties had settled into parity following a gradual, or ‘secular,’ realignment of voter behavior.2 Race and partisanship continued to be closely aligned in terms of both party identification and vote choice. Black voters moved decisively into the Democratic Party, while Southern conservative White voters realigned themselves into Reagan’s Republican Party. Nonetheless, significant numbers of North Carolinians voted Republican at top of the ballot, but supported Democrats down the ballot, and were named “Jessecrats” due to their loyalty to conservative Republican U.S. Senator Jesse Helms. This ticket-splitting phenomenon represented a dealigned electorate that made both parties compete for voter support. In the 1990s “neither the Democratic nor the Republican party could lay claim to being North Carolina’s clear-majority party.”3 The closeness of party factionalism would be tested by the 1990s redistricting, but more importantly, it would be centered in the charged dynamic of racial politics.

NC Receives 12th Seat and the Race and Partisan Battle Begins When states redistrict, it becomes America’s most political activity,4 but when U.S. House seats are reapportioned and a state either gains or loses a seat, the politics become more combative. Following the 1990 census, North Carolina gained an additional congressional seat, bringing the delegation to twelve. Democrats, once again with legislative control, found themselves at logger-heads over the new seat. House speaker Joe Mavretic warned that those “who advocate partisanship over common sense will ensure that federal courts will intervene,” adding that it would be “embarrassing to keep making the same mistake over and over again.

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This will not advance either party.”5 Even though they held no real power, Republicans sought to influence the redistricting process. Along with advocating for “compact and completely contiguous” districts,6 NC Republican Party chair Jack Hawke supported a “black district,” for obvious partisan reasons. Hawke argued “If you try to draw a strong black district, you dilute the black vote in the eleven other districts, so if you look at the raw politics of it, it would be favorable to the Republican Party.”7 And Republicans needed some kind of favorability, because their numbers down North Carolina’s ballot didn’t match the party’s performance at the top of the ticket. National Republicans knew Democrats would politically gerrymandering congressional seats, especially in the realigning South, to continue their numerical advantage in the U.S. House. In 1991, Republican National Committee chief counsel Ben Ginsburg crafted what seemed to be an odd proposal. Republicans would join civil rights groups to call for majority-minority congressional districts, designed to elect a minority representative. Instead of allowing Democrats to create districts based on the “pizza pie” approach, which combined urban minority voters into suburban areas for a potential Democraticfavored congressional district, Ginsburg advocated the “donut hole” approach. This approach centered majority-minority districts in urban areas, packing reliable Democratic voters into one district, while leaving the surrounding “donut” ring of white suburban areas, typically more Republican, divided up for the remaining districts. Republicans, who were “traditionally reluctant to embrace the Voting Rights Act, (were) now using it as an instrument to advance its own agenda.”8 North Carolina Republicans, in particular, knew the electoral benefits of doing so. But Democrats had their own political designs for redistricting. They planned to pack Piedmont Republicans into a district in order to “drain enough Republican votes that incumbent Democrats in the Fourth, Fifth, and Eighth Districts might be safer,” along with potentially flipping an additional district, the historically Republican Ninth. But Democrats didn’t just have the opportunity to pack Republicans. They could also crack, or split, GOP voters amongst different districts, diluting their voting strength. For example, by ending the use of multi-member state legislative districts in several Republican Piedmont counties, Democrats believed they could break two legislative districts into four single-member districts and create one or two competitive districts, leaving the others as Republican seats. This strategy “could not have been made 10 years

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ago when Democrats worked to avoid drawing single-member (state legislative) districts.”9 Along with their partisan goals, Democrats faced continued pressure from Black officials to create a congressional district with a sufficient African-American population to elect one of their own. Carolyn Coleman, the National Association for the Advancement of Colored People’s (NAACP) Southern Voter Education director, believed that “with the increased number of congressmen (North Carolina) will be electing, that we (N.C. African Americans) should be able to elect at least one congressman.” Coleman felt that “57 to 62 percent of the population should be black,” but that “We don’t need an 80 percent majority. We’d like to include the additional people in other districts, so they can have some influence there.”10 Early speculation settled on the state’s northeastern portion, or Durham County and the surrounding area, for a single majority-minority district. Some also thought that Mecklenburg County could support such a district. Centering a majority-Black district in and around Durham County was met with concern, however, by incumbent Democratic congressman Tim Valentine, whose district included Durham. Democratic redistricting chairs noted that as they began their work, minority representation would have to be incorporated into the plans. State Representative Samuel Hunt, one of the three house’s redistricting committee chairs, noted that “anytime that minorities have a chance to be represented, it’s required that you pursue it, legally.”11 Republicans saw their opening. Republican state representative David Balmer of Mecklenburg County proposed a series of congressional maps with two minority-majority districts: one in the state’s northeastern portion and a “sprawling second district, running from Mecklenburg County (Charlotte), through the Lumbee Indian counties along the (South Carolina) border, all the way (east) to African American sections of Wilmington along the coast.” While this proposal was never seriously considered, Balmer drew another minority-majority district beginning in northern Mecklenburg County, using Interstate 85 to connect various urban areas, and ending near the Virginia border, literally cutting the state into two. The “Balmer 8-1” proposal had a black voting age population of 54 percent, nearly identical to the Northeastern district that most legislators had agreed upon, and a potential ‘normal Democratic vote percentage’ of 71 percent. Republicans knew that if enough Black voters were packed, the surrounding ‘bleached’ areas could potentially create a 7-5 Republican congressional delegation.12 Eventually, this

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“string of pearls” congressional district became the basis for the heavily litigated I-85 Twelfth Congressional District.13 Along with proposing majority-minority districts, Republicans wanted the George H.W. Bush administration involved. Four North Carolina Republican congressmen sent letters to both the Democratic state senate redistricting committee chair and the assistant attorney general for civil rights, asking for a two minority congressional districts and for DOJ to investigate the state’s redistricting process.14 North Carolina legislators began the redistricting efforts in the summer of 1991 aware of the racial dynamics they faced. For the first time in the state’s history, a Black Democrat, representative Milton F. “Toby” Fitch, served as a redistricting chair. The battle began over the criteria used to redraw the maps. A Republican amendment to “maintain the integrity of political units” was adopted, while in the state house committee’s consideration of redistricting criteria, an amendment by Republican representative Larry Justus to not favor incumbents nor dilute the voting strength of ‘any group’ was rejected. Republican state representative George Holmes presented an amendment not to split political units, to be compact, and to preserve communities of interest, but no vote was taken on his proposal.15 With the state’s African American population at 20 percent, Democrats soon agreed to a single majority-minority congressional district. The resulting First District encompassed the state’s northeastern counties that contained significant African American populations, while dipping south across the lower coastal plain. The proposed First had a black voting age population percentage of 52, with the other eleven districts ranged between 5 and 24 percent. To keep the congressional delegation Democratic, party leaders packed and cracked Republican voters among the remaining districts. Analysis using various elections from 1988 and 1990 showed that two districts—the minority-majority First and the Seventh in the east—would have been ‘solid Democratic,’ while two other districts— the new Twelfth and the Tenth in the west—would be ‘solid Republican’ districts. The remaining eight districts were considered competitive, with potential Democratic vote percentages between 45 and 54 percent.16 Most believed the map would be an 8–4 Democratic delegation.17 Among the state legislative districts, the state house map included 75 single-member districts, up from 42 in the previous version, and 20 multi-member districts, down from 30. The state senate went from 22

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single-member and 28 multi-member districts to 34 single-member and 8 multi-member districts.18 Democrats acknowledged the maps’ politics, especially within their own legislative caucuses and with Republican DOJ oversight. Fitch noted disapproval from all sides, especially directed at the state’s (and the South’s) first African American House Speaker, Dan Blue.19 “There was criticism toward the Speaker coming from the community and some of the leadership. Purely, from a political standpoint and looking at and anticipating what we thought the moves of [DOJ] would be,” along with “what we could get through the House or through the Senate, the real politics of it.” In fact, Fitch said he was told by Senate Democrats that they did not believe they had to pursue a “maximization” policy of creating a proportional number of majority-minority districts to the state’s population.20 Democrats, therefore, went with the best political strategy for their purposes: create a single minority-majority district and ensure the remaining districts would serve Democratic purposes as much as they could. As expected, Republicans decried the proposed congressional map. Republican Governor Jim Martin described one district as “a bug splattered on your windshield,” while GOP state party chair Hawke added his own descriptors of two districts: “one looks like an elephant going east, and another one like a bug going west.”21 Even congressional Democrats were amazed. Valentine described the new Second as a “dragon,” due to its formation including two full counties and parts of 15 other counties, while stretching north towards the Virginia state line and east down to the coast. The proposed Fifth and Sixth Congressional Districts encompassed a long swath of counties along the Virginia border, but intersected at the corner of Forsyth, Guilford, Stokes, and Rockingham counties (using point contiguity) to divide the growing Republicanism of the Piedmont region, thus making the districts politically competitive.

DOJ’s Review On July 9, 1991, the legislature adopted the congressional redistricting plan, and four days later, passed the state house and senate redistricting plans and submitted the maps to DOJ for Section 5 preclearance. On December 18, DOJ interposed objections to all three maps, denying approval for North Carolina’s first redistricting efforts. In explaining their denial, assistant attorney general for civil rights John Dunne sought to

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determine if the state created the maps “free of racially discriminatory purpose or retrogressive effect.” DOJ’s guidelines included whether the interest of incumbents overrode the “community of interest shared by insular minorities” or where “given the demographics and racial concentrations in the jurisdiction, (the plan) does not fairly reflect minority voting strength,” and whether those minority groups were either cracked or packed into “a minimal number of districts in which they can expect to elect candidates of their choice.”22 While noting that their review “does not require that any jurisdiction guarantee minority voters racial or ethnic proportional results,” DOJ considered “demographic changes” and “the options available to the legislature” in its review. Each plan had “particular problems which raise various concerns” under the Voting Rights Act.23 Regarding the congressional map, DOJ recognized the “unusually convoluted shape” of the proposed single majority-minority congressional district in the northeastern region, but that the “irregular configuration” did not minimize minority voting strength. However, DOJ cited the Balmer proposal for a second majority-minority district in the southcentral and eastern portion. The lack of such a district appeared to “minimize minority voting strength given the significant minority population” in those regions. “(T)he state chose not to give effect to black and Native American voting strength in this area, even though it seems that boundary lines that were no more irregular than found elsewhere in the proposed plan could have been drawn” to recognize these populations. DOJ also noted that North Carolina “was well aware of the significant interest (from the NAACP and the ACLU) on the part of the minority community in creating a second majority-minority congressional district,” with several plans and alternatives developed. Yet, a second minority-majority district was “dismissed for what appears to be pretextual reasons,” including the issue of keeping minority voters in key districts to ensure the “election of white incumbents while minimizing minority electoral strength,” thus resulting in the “submergence” of minority voting strength.24 In reviewing the state legislative districts, DOJ believed that the state house plan minimized black voting strength in the southeastern and northeastern sections of the state (the historic “Black Belt” region), along with Guilford County, home to Greensboro. In each, DOJ believed districts “could be drawn to recognize black population concentrations in each area … (to) more effectively provide to black voters an equal opportunity to participate … and elect candidates of their choice.” DOJ noted

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that by limiting the number of minority-majority state house districts, legislators decided to “manipulate black concentrations in a way calculated to protect white incumbents.” The department focused on Guilford County, where the state had argued that dividing black voters into the different districts “enhances black voting strength by providing black voters an opportunity to influence elections in additional districts.” In contrast, DOJ looked to a non-covered county, Mecklenburg, to reason that instead, the state divided black voters to “ensure the reelection of white incumbents.” Even though the legislature drew two minority state house districts in Mecklenburg, DOJ believed that three districts could have been designed to allow black voters to elect one of their own. In reviewing the state senate map, DOJ objected to the state’s southeastern districts, which put black voters into districts to reelect white incumbents: “our own analysis suggests that a number of different boundary line configurations may be possible which more fairly recognize black population concentrations and provide minority voters an opportunity to elect candidates of their choice in at least one additional district.”25 While DOJ gave the state the options of having the Attorney General reconsider, or seek a remedy from the court, the 1991 plans were declared legally unenforceable.

NC General Assembly Goes for Round Two of Redistricting Following DOJ’s denial, Governor Martin called a special legislative session at the end of December 1991. Prior to the session, Rep. Thomas Hardaway, a Black Democrat from Halifax, met with John Merritt, staff member to Democratic Congressman Charlie Rose, and presented a revised version of the Balmer plan with two minority-majority districts, this time one rural, in the northeastern portion, and one urban, in the Piedmont. Merritt circulated it among the state’s Democratic congressional members, and after revisions, the plan was presented to the public on January 8, 1992 by Mary Peeler, State Director of NAACP.26 In addition, many Democratic legislative leaders debated whether to appeal DOJ’s objections or draw new maps with two majority-minority congressional districts. This difference of opinion came down to “some patently honest sentiment, among both white and African-American legislators, that in view of the State’s long history of race discrimination in

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voting matters persisting down to the present time, simple racial justice warranted” creating two majority-minority districts.27 Within a month, the legislature created additional majority-minority districts for all three plans. The congressional map drew the most scrutiny, with the “I-85” Twelfth Congressional District that cut across the Piedmont (see Map 3.1). The district was Republican Balmer’s handiwork, who argued that a second majority-minority district could have “stretched from the black neighborhoods of Charlotte to the black neighborhoods of Durham,” and that’s what the second version did.28 As Map 3.2 shows, the Twelfth started west of Charlotte, in the Black neighborhoods of nearby Gastonia, traveled along Interstate Highway 85 into Charlotte’s Black precincts, and then ran up Interstate Highway 77 north into Iredell County to capture Black neighborhoods in Statesville. From Statesville, the district turned east into Rowan County, where it picked up Interstate 85 to go through Davidson County. Along I-85, an appendage veered off into Forsyth County to pick up Black precincts in WinstonSalem, while the main body continued into Greensboro to do the same. The district then skipped along northern parts of Alamance and Orange counties before dropping into Durham County to capture most of its Black precincts. Representative Mickey Michaux, a Black Democrat who would later seek the Twelfth, would joke about the district: “if you drove down the interstate with both car doors open, you’d kill most of the people in the district.”29 Ultimately, the Twelfth stretched 160 miles and incorporated ten counties.

Map 3.1 North Carolina congressional districts, enacted 1991, used 1992– 1996 elections (Source Shaw v. Reno, 509 U.S. 630 [1993], following page 658)

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Map 3.2 North Carolina’s twelfth congressional district, enacted 1991, used 1992–1996 elections

The other majority-minority district, the First, began at the Virginia border in the eastern portion and dropped tentacles down to almost the South Carolina border. Resembling a Rorschach octopus, the First was drawn from nineteen counties. For example, Pasquotank County was divided into four separate parts, two in the First and two in the Third, while Cumberland County would be represented by three different members of Congress. Its overall “sprawl” and “sheer volume” was due to several reasons: the historic “black sections” of various towns and small cities “scattered across the essentially rural, agricultural Coastal Plain; to preserve politically-critical areas in the districts of three politically-affected incumbent Congressmen (and to avoid double-bunking any of them); and in the process to maintain the territorial contiguity.”30 In fact, at one point, the First used a “double cross-over” with the Third: a single point of intersection, allowing for contiguity, between the two districts that allowed one district to effectively “cut across” another district and branch out to capture more territory. The First District stretched over

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200 miles, meandering across the coastal region from the northeastern end of Gates County to the south-central end in Columbus County. Racially, the First and Twelfth had an overall Black population at 57 percent with a 53 percent Black voting age population. The Twelfth had a slightly higher Black registered voter population, at 54 percent, to the First’s 51 percent. Using the 1990 U.S. Senate race between Republican incumbent Jesse Helms and Black Democrat Harvey Gantt, both the First and Twelfth were overwhelmingly Democratic: Gantt would have received nearly 60 percent in the First and 71 percent in the Twelfth. In the 1992 elections, Eva Clayton and Mel Watt—two African-American candidates—would win the Democratic nominations and the general election contests for the First and Twelfth respectively, becoming North Carolina’s first Black members of the U.S. House of Representatives since 1901. Both served throughout the 1990s. Regarding the state legislative districts, the house map created nineteen minority-majority districts, while the senate created seven minoritymajority districts. Multi-member districts were still used, with twenty-two seats allocated in the house and two in the senate. This would be the last redistricting effort to utilize multi-member districts in North Carolina’s maps.

Legal Challenges Lead to Shaw v. Reno With the second set of maps, the Department of Justice precleared all three plans. Democrats were pleased, but Democratic Speaker Dan Blue acknowledged some real oddities: “At first glance, the congressional redistricting plan … seems unreasonable and unnecessarily contorted. In short, it’s an ugly map. But it’s the only map we could draw and still satisfy the U.S. Justice Department’s interpretation of the Voting Rights Act.” Blue went on to add that the Republican-led DOJ “rails against quotas in the workplace (but) now wants to impose them in electoral politics.” But Democrats weren’t the only ones unhappy with the map, especially the 12th District’s configuration. Andy Wright, political director for the state’s Republican Party, said “how can somebody in Mecklenburg County share the interests of someone in Durham County. There is no community interest there—they’re connected by a highway.”31 This was despite the fact that a Republican legislator proposed such a map in the first place.

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DOJ’s approval didn’t stop legal challenges, with a federal lawsuit filed in 1992 by Republican state Representative Art Pope, the NC Republican Party, and Republican, Democratic, and unaffiliated registered voters. Pope v. Blue argued the congressional district plan was “the most egregiously convoluted and contorted (map) in the nation,” all designed around protecting Democratic incumbents.32 A three-judge federal panel dismissed the case in April 1992, ultimately for lack of a specific claim to base legal relief upon. The judges also held that the map “was designed with at least a partial purpose of disadvantaging a specific political group,” something that the U.S. Supreme Court recognized as “an inherently political process.”33 The nation’s highest court affirmed the dismissal. The next lawsuit, Shaw v. Barr (subsequently known as Shaw v. Reno), served as the major court case coming out of the 1990s redistricting. Its basic holding—that racial gerrymandering can be constitutionally suspect—served as a point of contention into the 2000s. One lawyer would have a significant impact on how the case developed and continued throughout the next decade. A North Carolina native, professor at Duke University’s Law School, and chief judge of the United States Court of Military Appeals, Robinson O. Everette labeled himself a “yellow dog Democrat—someone who would vote for a ‘yellow dog’ rather than a Republican.” But this avowed “loyal Democrat” was ‘incredulous’ at the congressional map’s lack of compactness and contiguousness. At the heart of his indignation was that race predominated in creating the First and Twelfth districts. Everett likened it to the issue that “race could not be the basis for peremptory challenges in court trials.” He found it “hard to understand why this rationale, designed to protect a citizen’s right to serve on a jury without regard to race, would not apply equally to a citizen’s important right to vote and to hold elective office without regard to race.”34 As a White Democrat, Everett believed his own party had engaged in racial stereotyping and quotas. He attacked DOJ’s basic premise to make North Carolina draw a second majority-minority district: “because twenty-two percent of North Carolina’s total population was African American, a corresponding percent of its congressional delegation should be black,” which he viewed as a “racial quota.”35 Everett wrote afterwards that he would have been “equally opposed to the creation of ‘bizarre’ majorityblack districts because their ultimate effect was to polarize Congress by making it more difficult for moderate white Democrats to be elected.”36

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In 1992, Everett filed a lawsuit on behalf of several plaintiffs, one of them being Ruth Shaw, a Durham county resident who had previously been a plaintiff in another case brought by Everett, Drum v. Seawell, the 1965 case regarding equal population. Everett alleged that DOJ had “coerced” North Carolina into adopting an unconstitutional redistricting plan, based on an “intentional concentration of majority populations of black voters in districts that are no way related to considerations of compactness, contiguousness, or jurisdictional communities of interest.”37 Everett asserted that the Voting Rights Act was unconstitutional and that DOJ’s power of preclearance was thus illegal. Turning to state issues, Everett argued that “any state legislative redistricting driven by considerations of race whatever the race, whatever the specific purpose, whatever the specific effect is unconstitutional.” Everette argued that if the Voting Rights Act advanced “any race-conscious legislative redistricting,” the act was unconstitutional. He also claimed that Article I, Section 4 of the U.S. Constitution gave the North Carolina legislature the right, free of federal control, to create congressional districts. Everett argued that Article I, Section 2 clause that the “House of Representatives shall be composed every second year by the people of the several states” equated to not having the people divided along racial lines. Finally, Everett claimed that the Fourteenth Amendment’s privileges and immunities and the equal protection clauses, along with the Fifteenth Amendment, supported a legal challenge to majority-minority districts.38 Ultimately, a three-judge panel dismissed all of Everett’s claims. Along with upholding the attorney general’s “discretionary decisions” making power, the judges did recognize that the Article I, Section 4 argument was “a novel claim in voting rights jurisprudence” but declined to recognize such a right.39 As to Article I, Section 2, the court cited precedent to say that this claim only applied to “districts of unequal population” and not to racial redistricting. Finally, the court rejected the equal protection claims, due to the court believing that the plaintiff’s assertion that all voters, “whether black, white, native American, or others,” were not legally injured and failed to provide a “legally cognizable claim” that the courts could provide relief for.40 The court summarily refuted various other challenges made by Everett, including the use of a previous Supreme Court opinion that “the Constitution does not prevent a state subject to the Voting Rights Act from deliberately creating or preserving black majorities in particular districts in order to ensure that its reapportionment plan complies with [the VRA].”41 The court held that the plaintiffs could

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not prove that the “redistricting plan was adopted with the purpose and effect of discriminating against white voters…on account of their race.”42 Even with the “grotesque” nature of the majority-minority districts, the judges held that the plan “demonstrably will not lead to proportional underrepresentation of white voters on a statewide basis.”43 Everett appealed to the U.S. Supreme Court, by-passing the normal route of the court of appeals due to the Voting Rights Act’s stipulations that rulings from three-judge panels went straight to the nation’s highest court.44 The high court agreed to hear the case on April 20, 1992. The central issue was whether the Twelfth Congressional District’s design raised a valid constitutional question under the Fourteenth Amendment’s Equal Protection Clause. In a 5-4 decision announced on June 28, 1993, Justice Sandra Day O’Connor, then the swing vote on the Rehnquist Court, answered yes: a fundamental constitutional question was raised by the Twelfth Congressional District, although not in regards to the federal government, but more so about the state’s actions.45 In their appeal, Everett invoked Justice John Marshall Harlan’s concept of a ‘color blind Constitution’ from the 1896 Plessy v. Ferguson case, but recognized that ‘race conscious redistricting’ may not always violate constitutional viability. O’Connor observed that their “concession is wise: This Court never has held that race conscious state decision making is impermissible in all circumstances.” Nonetheless, O’Connor wrote that it is “unsettling how closely the North Carolina plan resembles the most egregious racial gerrymanderings of the past.”46 O’Connor used the Fourteenth Amendment’s Equal Protection Clause as the cornerstone of her analysis in Shaw v. Reno. The amendment’s “central purposes is to prevent the States from purposefully discriminating between individuals on the basis of race,” and state laws “that explicitly distinguish between individuals on racial grounds fall within the core of that prohibition.” Such explicit racial classifications were “immediately suspect” and that when a government classifies citizens “solely on the basis of race (those classifications) ‘are by their very nature odious to a free people whose institutions are founded upon the doctrine of equality.’”47 In using racial classifications, legislation must be “narrowly tailored to further a compelling government interest,” even when a law that may seem to be “race neutral, are, on their face, ‘unexplainable on grounds other than race.’” This subjected future racial redistricting cases to “strict scrutiny,” a standard where the state had to meet the highest standard to

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justify using racial classifications and not to run afoul of ensuring equal protection. To justify racial distinctions, a state needed a “compelling government interest” to further a desired purpose. O’Connor recognized that in other cases, racial dynamics in redistricting could be easily identified and raised concerns about the decision’s impact. Race, along with other dynamics such as age, political affiliations, and numerous other demographic factors, were at legislators’ disposal when they redistricted. But as to the Twelfth, “we believe that reapportionment is one area in which appearances do matter.” She went on to add: A reapportionment plan that includes in one district individuals who belong to the same race, but who are otherwise widely separated by geographical and political boundaries, and who may have little in common with one another but the color of their skin, bears an uncomfortable resemblance to political apartheid. It reinforces the perception that members of the same racial group--regardless of their age, education, economic status, or the community in which the live--think alike, share the same political interests, and will prefer the same candidates at the polls. We have rejected such perceptions elsewhere as impermissible racial stereotypes.48

For O’Connor, racially-driven redistricting effects would “exacerbate the very patterns of racial bloc voting that majority minority districting is sometimes said to counteract,” along with sending a signal to representatives from such districts that “their primary obligation is to represent only the members of that group, rather than their (entire) constituency. This is altogether antithetical to our system of representative democracy.”49 She cited a dissent by Justice William O. Douglas regarding districts drawn on voter characteristics: When racial or religious lines are drawn by the State, the multiracial, multireligious communities that our Constitution seeks to weld together as one become separatist; antagonisms that relate to race or to religion rather than to political issues are generated; communities seek not the best representative but the best racial or religious partisan. Since that system is at war with the democratic ideal, it should find no footing here.50

O’Connor and the majority did not rule that the Twelfth was constitutionally invalid, rather that the legal challenge against the district could continue. Additionally, O’Connor was clear in announcing that

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“we express no view as to whether ‘the intentional creation of majority minority districts …’ always gives rise to an equal protection claim.”51 O’Connor noted that the Court held “political gerrymanders to be justiciable under the Equal Protection Clause,” but that racial gerrymandering can be considered legally different and held to a different standard. O’Connor ended her opinion with an expansive overview of what racial gerrymandering could bring to the nation: Racial classifications of any sort pose the risk of lasting harm to our society. They reinforce the belief, held by too many for too much of our history, that individuals should be judged by the color of their skin. Racial classifications with respect to voting carry particular dangers. Racial gerrymandering, even for remedial purposes, may balkanize us into competing racial factions; it threatens to carry us further from the goal of a political system in which race no longer matters—a goal that the Fourteenth and Fifteenth Amendments embody, and to which the Nation continues to aspire. It is for these reasons that race based districting by our state legislatures demands close judicial scrutiny.52

As a result, the Supreme Court returned the case back for trial, with a focus on the state’s actions under the case Shaw v. Hunt , known as Shaw II. While the trial was being held in the spring of 1994, that year’s elections were well underway, all under the questionable 1992 plans. In the May primaries, the incumbent U.S. representatives in the majority-minority districts of the First and Twelfth, Eva Clayton and Mel Watt, were re-nominated and ultimately re-elected in the general election. However, four of their Democratic colleagues were ousted in the 1994 Republican mid-term wave election. In the nineteen-state house majorityminority districts, fifteen Black candidates won Democratic nominations, with a Native American winning one and White candidates in the remaining three. In the seven majority-minority state senate districts, five Black candidates were nominated, with White candidates in two. Altogether, in November’s GOP wave election, twenty-five legislators of color won, down one from the 1992 election.53 Democrats lost control of the state house, with sixty-eight Republicans winning to fifty-two Democrats, a shift of twenty-six seats, bringing about the first Republican majority since the 1890’s Fusion coalition. Democrats retained a bare majority in the state senate, holding twenty-six to twenty-four seats due to a shift of thirteen seats to the Republicans.

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In August 1994, the district court ruled in Shaw v. Hunt .54 Two of the three judges held that while the 1992 redistricted congressional plan was a racial gerrymander, it was “narrowly tailored” to serve a compelling state interest of complying with the Voting Rights Act. While the plaintiffs argued that ‘race-based redistricting’ conflicted with compactness, contiguity, and respect for political subdivisions, the trial court held that these were “not themselves constitutionally-mandated districting principles” and that other principles, such as incumbent protection or the recognition of interests such as urban versus rural, could be prioritized. Ultimately, two judges contended that: It is one thing to tell the states that the Voting Rights Act does not give them license to engage in race-based redistricting, even with the “benign” purpose of giving effect to minority voting strength, unless they have a substantial basis for believing that such remedial action is required to comply with the Act; and that they must take care, even then, not to take race into account in drawing district lines any more than is reasonably necessary to provide minority voters the “equal political opportunity” … that the Voting Rights Act requires. That is the fundamental point of Shaw, and it is a point well worth making, if this nation is ever to attain the goal that the Voting Rights Act itself was designed to bring about — that is, to overcome its long history of racial discrimination in electoral politics and transform its political system into one in which the color of an individual’s skin has no bearing on his ability to participate effectively in the political process. But it is another thing entirely to tell a state which does have a substantial basis for concluding that it must engage in race-based redistricting to comply with the Voting Rights Act that it can do so only if it draws districts whose lines are sufficiently “regular” or “pleasing” in their appearance to satisfy the aesthetic sensibilities of a handful of unelected federal judges. Shaw itself holds no such thing, and we do not believe its reasoning compels us to do so here.55

Upon appeal, the U.S. Supreme Court agreed to review the second Shaw ruling in December 1995, along with a case from Texas regarding a Shaw-type controversy which invalidated that state’s congressional districts due to racial and ethnic gerrymandering. On the same day as granting these two appeals, the court announced Miller v. Johnson, a Georgia case that highlighted issues regarding racial gerrymandering as Shaw did and would have an important impact on the continuing North Carolina case.56

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In Miller, while Georgia’s state population in the 1990 census was 27 percent Black, its legislature constructed only one majority-minority congressional district. Following multiple maps—each one denied DOJ pre-clearance—the Georgia legislature finally gained pre-clearance on a map with three majority-minority districts, one of which (the Eleventh) extended from Atlanta to Augusta, ending in Savannah, and that stretched 260 miles. Challenged under the Fourteenth Amendment’s Equal Protection Clause, the U.S. Supreme Court, under a 5-4 opinion written by Justice Anthony Kennedy, held the Eleventh was racial gerrymandered, where the “social, political and economic makeup of the Eleventh District tells a tale of disparity, not community.”57 Kennedy wrote that when a state “assigns voters on the basis of race, it engages in the offensive and demeaning assumption that voters of a particular race, because of their race, ‘think alike, share the same political interests, and will prefer the same candidates at the polls.’”58 Kennedy further elaborated on Shaw’s jurisprudence by saying that a district’s shape “is relevant not because bizarreness is a necessary element of the constitutional wrong or a threshold requirement of proof, but because it may be persuasive circumstantial evidence that race for its own sake, and not other districting principles, was the legislature’s dominant and controlling rationale in drawing its district lines.”59 Kennedy expounded on how the courts should determine the evidence for racial gerrymandering, beyond the bizarreness factor: The distinction between being aware of racial considerations and being motivated by them may be difficult to make. This evidentiary difficulty, together with the sensitive nature of redistricting and the presumption of good faith that must be accorded legislative enactments, requires courts to exercise extraordinary caution in adjudicating claims that a State has drawn district lines on the basis of race. The plaintiff’s burden is to show, either through circumstantial evidence of a district’s shape and demographics or more direct evidence going to legislative purpose, that race was the predominant factor motivating the legislature’s decision to place a significant number of voters within or without a particular district. To make this showing, a plaintiff must prove that the legislature subordinated traditional race-neutral districting principles, including but not limited to compactness, contiguity, and respect for political subdivisions or communities defined by actual shared interests, to racial considerations. Where these

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or other race-neutral considerations are the basis for redistricting legislation, and are not subordinated to race, a State can “defeat a claim that a district has been gerrymandered on racial lines.”60 (emphasis added)

By clarifying when a racial gerrymandering created a constitutional violation, Kennedy made a more concrete approach to examining such claims. While finding Georgia’s redistricting unconstitutional, the court ultimately pointed to the U.S. Department of Justice’s “maximization” approach as the reason why “race was … the predominant, overriding factor explaining (Georgia’s) decision to attach to the Eleventh District various appendages containing dense majority-black populations.”61 Indeed, the court would not subsume its constitutional role by deferring to the executive branch regarding statutory interpretation. “When the Justice Department’s interpretation of the (Voting Rights) Act compels race-based districting, it by definition raises a serious constitutional question … and should not receive deference.”62 Kennedy took DOJ to task. “The Government was driven by its policy of maximizing majority-black districts,” and even though the government later recanted, one of the DOJ attorneys who oversaw Georgia’s preclearance process admitted “what we did and what I did specifically was to take a … map of (the state) shaded for race, shaded by minority concentration, and overlay the districts that were drawn … and see how well those lines adequately reflected black voting strength.” Kennedy held that the DOJ “expanded its authority under the statute beyond what Congress intended and we have upheld.”63

The U.S. Supreme Court Reviews Shaw Following the Miller ruling, the U.S. Supreme Court revisited the district court’s ruling in Shaw v. Hunt, and with another 5-4 decision in 1996, held that racial considerations were the key reasons for the two majorityminority North Carolina districts.64 The state’s “overriding purpose was to comply with the dictates of the Attorney General’s December 18, 1991 letter … to create two congressional districts with effective black voting majorities.”65 Chief Justice William Rehnquist’s majority opinion held that North Carolina had to show “its redistricting plan was in pursuit of a compelling state interest” and “also that ‘its districting legislation is narrowly tailored to achieve [that] compelling interest.’”66

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Rehnquist found no “identified discrimination” that needed remediation, since North Carolina’s interest in “ameliorating past discrimination did not actually precipitate the use of race in the redistricting plan.”67 Like Georgia’s majority-minority district, Rehnquist concluded that “the challenged congressional plan was not required by a correct reading of Section 5 and therefore compliance with that law could not justify racebased districting.”68 And like Kennedy, the conservative chief justice went after the then-Republican Department of Justice’s “maximization” policy of proportional Black representation, rejecting an “expansive interpretation” of Section 5. Finally, concerns about a potential Section 2 lawsuit could not justify the Twelfth’s creation. In the end, “the North Carolina plan does not survive strict scrutiny because the remedy…is not narrowly tailored to the asserted end.”69 The lack of ‘geographic compactness’ could not lead one to establish Section 2 liability, Rehnquist wrote, simply because the legislature drew the district anywhere it deemed appropriate to address a vote-dilution claim. Therefore, the Twelfth failed to be “narrowly tailored” to North Carolina’s asserted interest in Section 2 compliance. Pointedly, the Court neither remanded the case back for further proceedings nor suggested any remedies. Along with Shaw v. Hunt, the Court handed down their ruling in the Texas redistricting case, Bush v. Vera, that further defined racial redistricting’s jurisprudence. With three new congressional seats apportioned to Texas, its state legislature drew two new majority-minority districts, one for African-American and the other as a Hispanic-majority district, as well as reconfigured an existing African-American district to increase its Black population. Even with DOJ pre-clearance, a trial court ruled the three districts unconstitutional racial gerrymanders. O’Connor, writing for a plurality this time, upheld the lower court’s ruling. The court found that while Texas used other factors (such as protecting ‘functional incumbents,’ or those elected officials who resided in and intended to seek the newly created congressional seats), race was the “predominant factor” by the state’s own admissions. Texas’s submission for DOJ preclearance acknowledged a legislative agreement that the new districts “should be configured in such a way as to allow members of racial, ethnic, and language minorities to elect Congressional representatives.”70 In addition, Texas used a computer program that layered racial and other socioeconomic data on top of proposed district lines. “By providing uniquely detailed racial data, (the computer program) enabled districters to make more intricate refinements on the basis of race than on

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the basis of other demographic information.”71 Even though both courts believed that other traditional districting criteria was used (particularly incumbency protection), all three districts were based on race. O’Connor wrote that states could overcome strict scrutiny if the state provided a “strong basis in evidence” for a majority-minority district, especially in seeking compliance with Section 2 and fulfilling the Gingles considerations. But, when districts are “bizarrely shaped and far from compact, and that those characteristics are predominately attributable to gerrymandering that was racially motivated and/or achieved by the use of race as a proxy,” then redistricting, like the three Texas districts, “exhibit a level of racial manipulation that exceeds what Section 2 could justify.”72

Round Three of NC Redistricting and Cromartie v. Hunt Following the June 1996 decision in Shaw II, North Carolina’s legislature appointed congressional redistricting committees to begin anew, but under different political dynamics. Thanks to the 1994 elections, the General Assembly was politically divided, with a Republican house and Democratic senate. Democrat Roy Cooper, chair of state senate’s redistricting committee, informed the state’s Attorney General Mike Easley that it wasn’t feasible to redraw the districts in time for that year’s primaries and the general election.73 However, in the middle of July, Richard Morgan, Republican chair of the house redistricting committee, released a proposed map that included a majority-minority district in the northeast and a majority black and American Indian district in the southeast. At the end of July, a three-judge panel ordered the state not to conduct any congressional election after 1996 using the existing plan, thereby allowing the maps struck down in Shaw v. Hunt to be used. However, the court set a deadline of April 1, 1997, for the next set of congressional maps. Following 1996s election, the state legislature remained politically divided: Republicans with a slim 61-59 majority in the state house, while Democrats expanded their majority to 30-20 in the state senate. Senator Cooper retained his chairmanship, while Representative Ed McMahan led the house redistricting committee. Cooper announced that the senate would seek to use “geographic, racial, and partisan balance” for redrawing the district lines.74 Eventually Cooper and McMahan arrived at a compromise, which kept the U.S. House delegation split evenly, significantly

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reduced the First District’s sprawl across the eastern half of the state, and condensed the Twelfth District to encompass from Charlotte to Winston-Salem and Greensboro (see Map 3.3). After legislative approval, on June 9, 1997, the DOJ precleared the second attempt at congressional redistricting.75 But yet again, Everett challenged the 1997 redistricting plan in Cromartie v. Hunt ,76 contending that the Twelfth was the “fruit of the poisonous tree” because it was modeled on the previous configuration, except more tightly drawn. With this new configuration, however, the district was no longer ‘majority-minority.’ The Black overall population was approximately 47 percent, with a 43 percent Black voting age population and 46 percent Black registered voters. In April 1998, a three-judge panel declared the Twelfth unconstitutional in a summary judgment.77 The Twelfth was not compact and race had been a predominant factor in its creation, due to it picking up black communities throughout the Piedmont region. The same judges did not find the First to be constitutional infirmed. During the appeal, the state legislature went back to redraw the Twelfth for a third time. This time, it pruned and fattened the district to wholly include Rowan County, located halfway between Charlotte and Winston-Salem (see Map 3.4). It retained the southern base in Mecklenburg County, while its northern part reached only into Forsyth County,

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Map 3.3 North Carolina congressional districts, enacted 1997, used 2000 elections (Source https://github.com/JeffreyBLewis/congressional-districtboundaries/blob/master/North_Carolina_107_to_107.geojson, https://www. ncleg.gov/Files/GIS/Plans_Main/Congress_1997/mapSimple.pdf)

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Map 3.4 North Carolina congressional districts, enacted 1998, used 1998 elections (Source https://github.com/JeffreyBLewis/congressional-districtboundaries/blob/master/North_Carolina_106_to_106.geojson, https://www. ncleg.gov/Files/GIS/Plans_Main/Congress_1998/mapSimple.pdf)

thus dropping Guilford County and Greensboro out of the district. Slated for the 1998 mid-term election, the legislature inserted a clause that if the state’s appeal was successful, the 1997 contested maps would be used for the 2000 election, and not this third version. After the legislature finished, the Supreme Court reversed the threejudge panel’s ruling in 1999s Hunt v. Cromartie.78 In asking the lower court to reconsider, Justice Clarence Thomas spoke for a unanimous court in finding that the plan was more partisan in nature than racial. Thomas held that Everett had presenting only circumstantial evidence and failed to prove that the state had an “impermissible racial motive,” where “race was the ‘predominant factor’ motivating the legislature’s districting decision” while “subordinating traditional race-neutral districting principles” such as compactness, contiguity, and respect for local political interests.79 Yet while the Twelfth could be considered violating these redistricting principles (Thomas even admitted that the district’s shape “hardly could be contested”), the state’s reasoning for drawing the Twelfth hinged on the fact that race and politics were significantly tied together, especially Black North Carolinians’ voting behavior. The district tended to include “more heavily Democratic precincts much more often than the more heavily black precincts,” Thomas wrote, meaning that political identification could better explain the district’s configuration more than racial composition.80 When party preference aligns with race,

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Thomas believed, a district’s constitutional infirmity may not always be evident. In sending the case back for a trial, Thomas noted that perhaps “the evidence will support a finding that race was the State’s predominant motive.”81

The 1990s and North Carolina’s Role in Racial Gerrymandering The 1990s proved to be a critical decade for the development and understanding of the role of race within redistricting efforts. Along with Georgia and Texas, North Carolina’s redistricting efforts contributed significantly to the jurisprudence over racial gerrymandering as a legal concept. The 1993 case of Shaw v. Reno (often referred to as Shaw I) established that if race was a significant component in drawing legislative districts, especially if the districts were “bizarrely shaped,” then racial intent could be gleaned from the district’s construction. That intent would be a violation of the Equal Protection Clause. Shaw I initiated a long line of progeny nationally regarding the role of race and redistricting. Georgia’s Miller case built on Shaw to say that if race was the “predominant factor” and basis in the drawing of a district’s lines, that the district violated the U.S. Constitution’s Equal Protection Clause. Texas’s Vera case further confirmed Shaw’s “bizarreness” factor as a test for when race could be investigated as a predominant factor in redistricting efforts. Far from being compact, the Texas districts were found to have been drawn not just with politics in mind, but also race, and thus amounted to racially-motivated gerrymandering, again a violation of the Equal Protection Clause. For the second review of North Carolina’s Twelfth, the Supreme Court intimated that partisanship could be just as much an explanation as race was, leaving it for the lower court to determine that question. North Carolina’s 1990s round of redistricting would not conclude by the end of the decade, for one more case would be needed to resolve whether the now infamous Twelfth District could withstand a third challenge to it, or whether the district continued to violate the U.S. Constitution’s equal protection. However, in the next decade, the role of race would be joined by the role of politics in redistricting, and the 2000s would find a new source of legal controversy, starting from state grounds and working its way back up to an all-too-familiar legal review by the U.S. Supreme Court.

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Notes 1. O’Connor, 49. 2. Fleer, Jack D., Roger C. Lowery, and Charles L. Prsyby. 1989. “Political Change in North Carolina.” In The South’s New Politics: Realignment and Dealignment, ed. by Robert Swansbrough and David Brodsky. Columbia, SC: University of South Carolina Press. 3. Christensen, Rob and Jack D. Fleer. 1999. “North Carolina: Between Helms and Hunt No Majority Emerges.” In Southern Politics in the 1990s, ed. by Alexander P. Lamis. Baton Rouge, LO: Louisiana State University Press. 4. Bullock, Redistricting. 5. O’Connor, Paul T. 1990. “Reapportionment and Redistricting: Redrawing the Political Landscape.” North Carolina Insight. December, 30–49, 40. 6. Kietrich, Karen. 1991. “N.C. May Create Black-Majority 12th District.” The Daily Tar Heel, 4. March 25. 7. O’Connor, Paul T. 1990. “Reapportionment and Redistricting: Redrawing the Political Landscape.” North Carolina Insight. December: 30–49. 8. Clayton, Dewey M. 2000. African Americans and the Politics of Congressional Redistricting. New York: Garland Publishing, 42. 9. O’Connor, 47. 10. Dietrich, Karen. 1991. “N.C. May Create Black-Majority 12th District.” The Daily Tar Heel, 4. March 25. 11. Dietrich, 6. 12. Edsall, Thomas B. 1991. “North Carolina Voting Plan Rejected.” The Washington Post. December 20. https://www.washingtonpost.com/ archive/politics/1991/12/20/north-carolina-voting-plan-rejected/a25 98988-4a43-4f0a-a515-8f2b7a117909/. Accessed December 22, 2020. 13. Groke, Paul and J. Matthew Wilson. 1999. “Competing Redistricting Plans as Evidence of Political Motives: The North Carolina Case.” American Politics Quarterly. 27:2 (April): 147–176, 159, 164, 166. Clayton, Dewey M. 2000. African Americans and the Politics of Congressional Redistricting. New York: Garland Publishing, 51. 14. Clayton, 48. 15. 1990 Chronology. 16. Gronke and Wilson, 166. 17. Clayton, 95. 18. Letter to Tiare B. Smiley from John R. Dunne, Assistant Attorney General, Civil Rights Division, Department of Justice, dated December 18, 1991. https://www.justice.gov/sites/default/files/crt/legacy/ 2014/05/30/NC-1500.pdf. Accessed December 5, 2020.

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19. Clayton, 53; Christensen, 278. 20. Clayton, 53. 21. Lusk, Eric. 1991. “New Congressional Redistricting Plan Blasted by State’s Republicans.” The Daily Tar Heel, 4. September 3. 22. Letter to Tiare B. Smiley from John R. Dunne, assistant attorney general for civil rights, dated December 18, 1991. https://www.justice.gov/ sites/default/files/crt/legacy/2014/05/30/NC-1500.pdf. Accessed December 1, 2020. 23. Ibid. 24. Ibid. 25. Ibid. 26. “1990 Chronology,” 12. Found at: https://www.ncleg.gov/Files/GIS/ Maps_Reports/1990_Chronology.pdf. Accessed July 16, 2020. 27. Shaw v. Hunt, 861 F. Supp. 408 (E.D.N.C. 1994), 462–463. 28. Shaw v. Hunt, 466. 29. Biskupic, Joan. 1993. “N.C. Case to Pose Test of Racial Redistricting.” The Washington Post. April 20. https://www.washingtonpost.com/arc hive/politics/1993/04/20/nc-case-to-pose-test-of-racial-redistricting/ f73d6f3e-995c-4899-8096-bb7594a683e0/. Accessed July 27, 2020. 30. Shaw v. Hunt, 467–468. 31. “Redistricting Plans Receive Stamp of Approval,” by Eric Lusk. The Daily Tar Heel, 4. February 10, 1992. 32. “Supreme Court Rejects Redistricting Appeal.” The Daily Tar Heel, 4. March 12, 1992. 33. Pope v. Blue, 809 F. Suppl. 392 (W.D.N.C. 1992), 396. 34. Everett, Robinson O. 2001. “Redistricting in North Carolina—A Personal Perspective.” North Carolina Law Review. 79: 1309–1310. 35. Everett, 1310. 36. Everett, 1311. 37. Shaw v. Barr, 808 F. Supp. 461 (1992). 38. Ibid. 39. Ibid., 469. 40. Ibid., 470. 41. Barr v. Shaw, 471. 42. Ibid., 472. 43. Ibid., 473. 44. Allen v. State Board of Elections, 393 U.S. 544 (1969). 45. 509 U.S. 630 (1993). 46. Ibid., 641. 47. Ibid., 643. 48. Ibid., 647. 49. Ibid., 648. 50. Ibid., 648–649.

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Ibid., 649. Ibid., 657. 1990s Chronology, 23. 861 F. Supp. 408 (E.D.N.C. 1994). Ibid, 454. 515 U.S. 900 (1995). Ibid., 908. Ibid., 911–912. Ibid., 913. Ibid., 916. Ibid., 920. Ibid., 923. Ibid., 925. 517 U.S. 899 (1996). Ibid., 906. Ibid., 908. Ibid., 910. Ibid., 911. Ibid., 915. Ibid., 960. Ibid., 962. Ibid., 979, 981. Both Easley, in 2000, and Cooper, in 2016, would be elected governor. Cromartie v. Hunt, 133 F. Supp. 2d 407 (E.D.N.C. 2000), 412. 1990s Chronology. Cromartie v. Hunt, 34 F. Supp. 2nd 1029 (1998). Ibid. Summary judgment is a legal procedure for prompt and speed resolution of a case, often without a trial. 526 U.S. 541 (1999). Ibid., 547. Ibid., 550. Ibid., 554.

CHAPTER 4

Redistricting in the 2000s—The Battle Over Race Continues

Abstract In the period of 2000–2010, North Carolina redistricting controversies continued to center on racial gerrymandering claims. While the 1990 litigation ended in 2000 over race and redistricting, litigation efforts shifted from federal to state court action and an important case regarding state constitutional requirements for North Carolina redistricting. The decade ended with a North Carolina racial redistricting decision by the U.S. Supreme Court that demarked a bright-line for the use of race in drawing districts. Keywords Redistricting · North Carolina · Racial gerrymandering · Whole county provision · State constitutional law

North Carolina’s 1990s redistricting battles continued into 2000, thanks to the ongoing court battle over race in redistricting. After resolving the issue of race and politics in redistricting, the 2000s witnessed a state supreme court case that significantly impacted North Carolina’s redistricting again regarding race. Along with a tectonic political shift in 2008, this decade set the stage for 2010s redistricting that upended the state’s Democratic dominance and gave Republicans the opportunity to secure majority control, until a state court said otherwise. The 2000s saw the rise © The Author(s), under exclusive license to Springer Nature Switzerland AG 2021 J. M. Bitzer, Redistricting and Gerrymandering in North Carolina, Palgrave Studies in US Elections, https://doi.org/10.1007/978-3-030-80747-4_4

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not just of federal action, but of North Carolina’s judicial system asserting its authority, establishing another significant precedent on redistricting.

North Carolina’s Politics at the Start of the Twenty-First Century With the new decade and century, North Carolina’s overall political dynamics remained as they had been for the past twenty years: divided between Republican federal but Democratic state-level. In 2000 and 2004, George W. Bush won the Tar Heel state with 56 percent of the two-party vote, while in the same elections, Democrat Mike Easley won the governorship with 53 and 56 percent, respectively. By the decade’s end though, North Carolina became a truly competitive and increasingly “sorted” battleground, when a twelve-point Republican presidential state in 2004 flipped to a half-point Democratic victory in 2008. This Democratic win inflamed the reactive nature of the state’s politics, sorting voters into partisan camps. The state’s competitiveness extended down the ballot as well. When Senator Jesse Helms retired in 2002, Elizabeth Dole retained the open seat for the GOP, while Republican Richard Burr won the other seat in 2004. Then in 2008, Democrat Kay Hagan defeated Dole. In the state’s U.S. House delegation, the first half of the 2000s saw Republicans win seven of the thirteen seats, but they lost a seat in both the 2006 and 2008 elections. Within the General Assembly, Democrats maintained control of the state senate, while in the 2003–2004 legislative session, both parties shared power in the state house due to a 60–60 split following the 2002 elections. Democrats joined a small block of Republicans to alternate the speakership and power within the state house. Up to 2008, North Carolina’s competitive two-party state continued due to the pervasiveness of ticket-splitting voters. Significant numbers of North Carolinians would vote Republican for president but then vote Democratic for governor, and back and forth down the ballot. A reason for this divergent voting behavior was that North Carolina Democrats nominated candidates who could appeal to the moderate middle of the state’s swing electorates, while state Republicans tended to put forward much more conservative candidates than the national GOP.1 However, 2008s election marked a turning point in split ticket voting. With Barack Obama’s ground game flipping the state, and Democrats winning both

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the U.S. Senate and gubernatorial contests that year, North Carolina transitioned to a more ‘nationalized’ and sorted partisan environment. The 2010 election was an important reaction to 2008, fueled by a conservative Tea Party insurgency within the GOP. This Newtonian effect enabled the Republican Party to win complete legislative control for the 2010 redistricting. As to redistricting in the 2000s, North Carolina began the millennium with a continued battle over race in the state’s 1990s congressional maps. Once the U.S. Supreme Court weighed in by noting that race and politics can have a relationship, the judicial battles moved to state court. This state-level action resurfaced again at the U.S. Supreme Court, granting the nation’s highest court the opportunity to further refine its jurisprudence regarding the role of race within redistricting.

The 1990’s Battle Continues Into a New Decade: Cromartie v. Hunt Upon remand from the U.S. Supreme Court, a three-judge panel conducted a trial in Cromartie v. Hunt in November and December of 1999, and three months into the new year, issued a complex opinion regarding the First and Twelfth congressional districts.2 The court’s majority began by noting the state’s goals: curing the constitutional deficiencies “by assuring that race was not the predominant factor in the new plan” (a potential recognition of the Miller and Vera decisions) and “drawing the plan to maintain the existing partisan balance in the State’s congressional delegation.”3 However, two judges held that while racial dynamics played a role in both districts’ boundaries, one district failed to meet constitutionality. The court held that the state had a legitimate interest in creating the First District of gaining DOJ preclearance. The court cited an email between senate redistricting chair Roy Cooper and legislature’s head of bill drafting, Gerry Cohen, as establishing the state’s interest, to “boost the minority percentage in the first district” to create what Cooper believed was a “mandate” to satisfy DOJ. This triggered the strict scrutiny standard to the state’s actions, and while the court held that the evidence met the Gingles test, the state “did have a compelling reason to address race in the construction of the First District … the need to satisfy Section 2 of the (VRA) in order to ensure that the State’s AfricanAmerican population have equal access to the political process.”4 While

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the First District’s shape was akin to the “state of Florida,” the district achieved a majority-minority population while not engaging in county splitting as much as the Twelfth did, and was “not as irregular as District 12.”5 In analyzing the Twelfth, the court found that the legislature had brought primarily African-American, and thus Democratic, precincts, while excluding precincts that were heavily Democratic (in voter registration), but not African-American in population. A geographic analysis showed the district had the lowest dispersion and perimeter compactness measures, and thus was less ‘compact’ than other districts.6 The court characterized the Twelfth as a “racial archipelago” designed to stretch, bend, and weave between Charlotte and Winston-Salem “to pick up predominantly African-American regions while avoiding many closer and more obvious regions of high Democratic registration, but low AfricanAmerican population.”7 Although shorter than the previous version’s 160 miles in length, I-85 was still the district’s axis, which created a district “unusually shaped,” “winds in snake-like fashion,” and “gobbles in” African American populations.8 The state contended that politics drove the lines in order to create a “Democratic island in a Republican sea.”9 But relying on another e-mail between Cooper and Cohen, the court held that the 1997 plan continued the Twelfth’s racial divisions. In the e-mail, Cohen indicated that he had moved “Greensboro Black community into the 12th and now need to take (about) 60,000 out of the 12th ”, and it was this reference to “Black” areas of Greensboro the court took as evidence of racial gerrymandering. While not a majority-minority district, the court held that race was still ‘predominant’ in the Twelfth’s creation. “(U)sing a computer to achieve a district that is just under 50% minority is no less a predominant use of race than using it to achieve a district that is just over 50% minority.”10 Since the legislature “eschewed traditional districting criteria such as contiguity, geographical integrity, community of interest, and compactness” factors, the “General Assembly [had] utilized race as a predominate factor.” The district court did not believe the state had a “compelling interest” to use race, and thus the Twelfth was “an impermissible and unconstitutional racial gerrymander in violation of the Equal Protection Clause.”11 While the court gave the state legislature a fourth attempt, the state appealed to the U.S. Supreme Court, which ordered a stay of the district court’s order, allowing the 1997 plan to be used for the 2000 election. Following oral arguments in November 2000, the high court issued its

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opinion in April 2001 in Easley v. Cromartie, and in its fourth review of the Twelfth, ruled it was constitutional.12 Justice Stephen Breyer wrote that the lower court failed to focus on the evidentiary aspects of the Twelfth’s redrawing. Those challenging the map had to show that race was “the predominant factor” motivating the legislature to draw the district, one that was “unexplainable on grounds other than race.”13 Breyer noted that the discretionary power belongs to the legislature, and not the courts, who must “exercise extraordinary caution” (emphasis in the original) when reviewing legislative redistricting efforts.14 Breyer noted three core findings for the lower court’s ruling: “the district’s shape, its splitting of towns and counties, and its high African-American voting population.” However, Breyer held that political dynamics drove the district’s creation, even when “racial identification is highly correlated with political affiliation in North Carolina.”15 For example, in the 199216 and 199617 North Carolina exit polls, 91 percent of Black voters indicated support for Democratic presidential candidate Bill Clinton, with 89 percent supporting his re-election bid. In comparison, barely one-third of White North Carolina voters, and four years later, 45 percent, voted Democratic. Breyer discounted the court’s use of voter registration data rather than voter election data, due to white North Carolina voters’ historic legacy of registering Democratic but “crossing over” to vote Republican at higher rates than black registered Democrats. Breyer was blunt: A legislature trying to secure a safe Democratic seat is interested in Democratic voting behavior. Hence, a legislature may, by placing reliable Democratic precincts within a district without regard to race, end up with a district containing more heavily African-American precincts, but the reasons would be political rather than racial.18

The lower court also relied on numerous expert witnesses’ findings: the Twelfth was more than 60 percent Democratic; African-American precincts were highly reliable Democratic areas; if the legislature drew the Twelfth to include part of the Ninth, that two incumbents would have been ‘double-bunked’ against each other; and if a heavy African-American precinct in Mecklenburg County has been completely placed within the Twelfth, instead of being split between the Ninth and the Twelfth, the Ninth would have been “invaded” by that jutting precinct and divided. Breyer interpreted these findings as demonstrating not ‘racial’ dynamics

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at play, but rather political dynamics. Breyer compared the Twelfth, which was 63 percent Democratic, to the ‘safe’ Republican districts, which were 61 percent GOP. He noted that the African-American precincts included were ‘reliably Democratic’ voters and that the legislature “drew its plan to protect incumbents—a legitimate political goal.” Finally, it was a “conclusive nonracial reason for the legislature’s decision not to” keep the Mecklenburg precinct whole.19 Breyer dismissed the reasoning that alternative districts could have been drawn to avoid placing “so many primarily African-American” precincts, saying that “hypothetical alternative districts” do not “alone … show an improper legislative motive.” A legislature can use other motivations and still create “heavily, even majority, minority” populated districts. Only when “such districts (are drawn) for predominately racial, as opposed to political or traditional, districting motivations” will the Court look at such efforts with constitutional suspicion.20 Finally, Breyer pointed to Cooper’s statement regarding the plan’s “geographic, racial and partisan balance” and held that race was used in conjunction with partisanship and geography. While the Court agreed that Cohen’s move of “Greensboro Black community into the 12th ” could support a finding of racial consideration, it was “less persuasive than the kinds of direct evidence we have found significant in other redistricting cases.”21 Ultimately, the challengers needed to show that racial dynamics were “dominant and controlling,” and that the Twelfth did not meet the “‘demanding’ nature of that burden of proof.”22 The Supreme Court provided further clarification regarding majorityminority districts and the role of race and politics in redistricting: In a case … where majority-minority districts … are at issue and where racial identification correlates highly with political affiliation, the party attacking the legislatively drawn boundaries must show at the least that the legislature could have achieved its legitimate political objectives in alternative ways that are comparably consistent with traditional districting principles. That party must also show that these districting alternatives would have brought about significantly greater racial balance.23

The Cromartie case fine-tuned judicial evaluations regarding racial redistricting. When race and politics have a strong relationship, challengers must demonstrate that the legislature could have other means to create the districts, as well as show that alternative plans would have brought

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about more racial balance than what was proposed. It is constitutional for states to “draw districts with black or Latino majorities when these districts reflected real communities that shared common political interests,” thus “placing black voters together is acceptable if it reflects normal partisan politics.” Yet “conflicting principles” still remained, making it “impossible for state officials to know precisely how to weigh race among the many other factors that go into redistricting decisions.”24

Redistricting Shifts from Federal to State Judicial Oversight With the start of the 2000s round of redistricting, litigation challenges shifted from the congressional to state legislative districts and from federal to state courts. For this decade, it would be state constitutional law dictating the dynamics of North Carolina redistricting. Even with the change to state litigation, North Carolina would once again find itself back at the U.S. Supreme Court, this time regarding the influence of federal law on state law and yet another clarification of racial redistricting activities based on the state’s efforts. North Carolina continued to experience significant population growth, thanks to in-migration. The 1990 census showed the state’s population at 6.6 million. A decade later, the state had grown 22 percent, to eight million.25 Thanks to this population surge, North Carolina received a thirteenth congressional seat, and the legislative battle over the new seat would be added into the partisan mix. Following the Cromartie decision, the North Carolina legislature concluded its session in December 2001 by redrawing the state legislative and congressional maps. The congressional redistricting co-chairs, Democratic state senator Brad Miller and Republican state representative Ed McMahan, appeared to support a ‘status-quo’ districting plan, keeping seven districts Republican while giving the newest district to Democrats. But in September, that gentleman’s agreement dissolved. Miller indicated that he had drawn several maps prior to the formal start, “most of which have seven Democratic districts.” McMahan said “I do sense a different attitude in discussing (the partisan division of congressional seats) than I did in the spring,” while Miller added “I don’t think we ever shook hands and said, ‘Deal.’”26 The partisan rancor grew when a 72-48 Democratic state house map was made public. Republicans accused Democrats of packing GOP voters, and even instituted a pledge among

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their caucus to vote together on redistricting plans, or face expulsion from the caucus. Some Republicans rebelled at the pledge dictate, with Republican representative David Minor saying “I think it’s tacky.”27 The inter-partisan divide wasn’t the only roadblock to redistricting. In crafting a state house plan, Democrats again ran into opposition from within their own caucus, when five of eighteen Black Democratic representatives objected to reducing majority-minority state house districts from sixteen drawn in 1992 down to twelve. State representative Toby Fitch, a previous redistricting chair, believed that the reduction in majority-minority districts violated the VRA. After a six-week standoff within the Democratic caucus over the state house plan, Democrats mustered a slim majority to pass a revised version, which kept the number of majority-minority districts at twelve, but increased black strength in other districts.28 The congressional map turned into a battle as well. When designing the newest congressional district, state senator Brad Miller, chair of that body’s redistricting committee, drew a district that would be favorable to his run for the Democratic congressional nomination and eventual election as the state’s newest U.S. Representative (see Map 4.1). The new district started in northern Wake County, which included Miller’s state senate district, then moved north out of Wake to the Virginia line, and ran

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Map 4.1 North Carolina congressional districts, enacted 2001, used 2002– 2010 elections (Source https://github.com/JeffreyBLewis/congressional-dis trict-boundaries/blob/master/North_Carolina_108_to_112.geojson, https:// www.ncleg.gov/Files/GIS/Plans_Main/Congress_2001/mapSimple.pdf)

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westward before ending in Rockingham County and dipping into Democratic precincts in Guilford County. Another redistricting committee cochair, African American state senator Frank Balance, announced plans to run for the First District, following Representative Clayton’s retirement.29 But it wasn’t just Democratic self-ambitions that were at play. Democrats reconfigured the western-most Eleventh District held by Republican Charles Taylor, drawing GOP ire. “It’s theft with a pencil aimed at taking that which cannot be won by a vote,” said Henderson County Republican state representative Larry Justus.30 Democrats also targeted the Eighth District, held by Republican Robin Hayes, who noted the reconfigured district was “ugly.” Under the proposal, the Eighth shifted into downtown Charlotte and away from Republican suburban strongholds. A Democratic co-chair acknowledged as much. “I’m a Democrat, and I’m drawing a Democratic majority map here,” said state representative Thomas Wright.31 Using the 2000 gubernatorial election results, the congressional delegation could have six Democratically-favored districts (the AfricanAmerican First and Twelfth, along with the Second, Fourth, Seventh, and newly-added Thirteenth), four Republican-favored districts (the Fifth, Sixth, Ninth, and Tenth), and three competitive districts (the Third, Eighth, and Eleventh). The First and Twelfth districts continued their odd-shape. The Twelfth ran from Mecklenburg back up to WinstonSalem and Greensboro, while the bulk of the First was along the Virginia-North Carolina border in the east, with tentacles dropping down into the coastal plan region. With final passage coming in early December 2001, the U.S. Department of Justice precleared the state legislative maps on February 11, 2002, and the congressional maps four days later.32 On the same day that the congressional maps were precleared, legal challenges were filed against the state legislative districts. This state-level challenge ultimately landed in the U.S. Supreme Court to yet again clarify the role of race in redistricting.

North Carolina’s “Whole County Provision” Shortly after the General Assembly passed the state legislative maps, Republican officials and Ashley Stephenson, a Beaufort County voter, filed a November 2001 lawsuit against the state districts, based on North Carolina’s “Whole County Provision” (WCP) constitutional provision.33

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In Stephenson v. Bartlett, the plaintiffs argued that the state constitution’s Article II, Sections 3 and 5 prohibited the General Assembly from dividing non-VRA covered counties into separate legislative districts, unless required to comply with federal law. In the initial 2001 redistricting, the senate map divided 51 of the 100 counties into different districts, while the house map divided 70 counties. Mecklenburg County held six different senate districts, three of which stretched into five surrounding counties. Mecklenburg was also divided into thirteen house districts, four of which stretched over the county’s lines into five other counties. Pender County was divided into three separate senate districts that contained ten other counties among them.34 Pender was worse off in the house plan; five separate districts sliced the county, with a total of eight other counties composing those five districts. This balkanization led to the state constitutional challenge, but it also brought about a potential confrontation with the Voting Rights Act. Following the state’s unsuccessful attempt to move the case to federal court due to VRA coverage, state superior court judge Knox Jenkins ruled in February 2002 the state house and senate maps unconstitutional, due to the whole county provision (WCP). The state appealed to the North Carolina Supreme Court. Written by Republican Chief Justice I. Beverly Lake in April 2002, the state’s highest court not only found the 2001 maps violated the WCP, but ultimately specified the state’s constitutional principles regarding redistricting.35 Lake was clear about the state constitutional framing. This “instant action presents a state law question of first impression for this Court” in order to steer clear of any federal questions that could bring U.S. Supreme Court review.36 Lake acknowledged that state constitutional law took a backseat to preemptive federal statutory law, notably the Voting Rights Act; however, North Carolina was one of seven states partially covered under the VRA. This left sixty counties not under federal oversight and subject to state constitutional law. So long as state constitutional law “does not dilute minority voting strength in violation of federal law,” the state retains “significant discretion when formulating legislative districts.”37 Just as the U.S. Supreme Court recognized “traditional districting principles” such as “compactness, contiguity, and respect for political subdivisions,” or counties, Lake held those principles could not violate state constitutional requirements. In fact, “many North Carolina legislative districts have been increasingly gerrymandered to a degree

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inviting widespread contempt and ridicule,” and that national commentators remarked that “North Carolina [had been] long notorious for outrageous reapportionment.”38 Lake noted the importance of North Carolina counties. All three state constitutions provided representation based on counties, with the state’s latest constitution, ratified in 1971, containing the whole county provision: “No county shall be divided in the formation of a senate or representative district.” Several previous rounds of redistricting efforts complied with keeping counties whole, and that when Congress did not ‘preempt’ the “entire field of state legislative redistricting and reapportionment, state provisions in this area of law … must be accorded full force and effect.”39 In striking down the state district maps, Lake took a significant additional constitutional step. Drawing districts with both single- and multi-members violated the state’s equal protection clause and North Carolinians’ “right to vote on equal terms.”40 Voters in single-member districts “suffer electorate disadvantage because, at a minimum, they are not permitted to vote for the same number of legislators and may not enjoy the same representational influence of ‘clout’ as voters represented” by multi-member delegations. “Conversely,” the chief justice went on, “voters in multi-member districts invariably suffer the adverse consequences described by the [U.S.] Supreme Court: unwieldy, confusing, and unreasonably lengthy ballots; and minimization of minority voting strength.”41 Multi-member district voters could call upon “a contingent of responsive Senators and Representatives to press their interests,” giving them an advantage over single-member district voters and creating an unequal voting power. Citing an Iowa Supreme Court opinion that struck down that state’s use of single- and multi-member districts, Lake held that “the basic unfairness, inequality and lack of uniformity inherent in such a scheme of legislative apportionment” violated the principle of “(e)qual voting power for all citizens.”42 Unless the legislature demonstrated a compelling state interest, using multi-member and single-member districts violated the state’s equal protection clause. Lake delineated the state constitutional criteria for redistricting. To ensure compliance with federal law, districts required by the Voting Rights Act should be drawn first and that “to the maximum extent practicable, such VRA districts shall also comply” with the WCP. Second, any population deviation would be within plus or minus 5 percent. Third, any

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counties not under the VRA and that could, within the population deviation, support a legislative district, would have a district that did “not cross or traverse the exterior geographic line of” the county. Fourth, if two or more districts could be drawn (again, within the population deviation) within a county, those districts would be single-member districts and not cross county lines. Fifth, if non-VRA counties could not support a legislative district within their lines and within the population deviation, contiguous multi-county groupings could be created, but districts could cross county lines only to comply with the population deviation standard. Finally, Lake ordered that the “smallest number of counties necessary to comply” with the population standard combined, and that “communities of interest should be considered in the formation of compact and contiguous electoral districts.”43 Lake never specified what “communities of interest” were. Lake held that the whole county provision “was not an historical accident. Rather, we believe that this provision was inserted by the people of North Carolina as an objective limitation upon the authority of incumbent legislators to redistrict and reapportion in a manner inconsistent with the importance that North Carolinians traditionally have placed upon their respective county units in terms of their relationship to State government.”44 The General Assembly subsequently revised both chambers’ maps in May 2002 and submitted the revisions back to the trial court. In what has become known as Stephenson II,45 state judge Knox V. Jenkins, Jr., found that the plans not only ignored the chief justice’s requirements, but also violated the Voting Rights Act. First, VRA districts were not created in Wake, Forsyth, and Mecklenburg counties. Second, the legislature failed to form districts using the smallest number of counties. Third, geographically-based “communities of interest” were not applied consistently. Jenkins characterized the maps as “a crazy quilt of districts unrelated to a legitimate government interest.”46 With the 2002 election cycle already underway, Jenkins drew his own version of state legislative districts, which the state supreme court upheld. The U.S. Department of Justice precleared the state maps in March 2004. However, the state house map became the subject of yet another lawsuit—the third so far this decade—regarding how the legislature tried to anticipate a VRA potential lawsuit. The U.S. Supreme Court would take this case to clarify a previous ruling regarding when majority-minority districts should be created under Section 2, creating what was thought to be a “bright line” for future redistricting efforts.

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Pender County’s “Bright Line” Drawn as a majority-minority voting-age population district in 1991, NC House District 18 included part of Pender County. By the 2000 Census, Pender County’s overall population was not sufficient to form a single legislative district and its Black/African American population was down to 24 percent.47 Even though Pender was not a VRA-covered county, legislators realized that they could not create a majority-minority votingage population district. Instead, they opted for district with nearly 40 percent Black/African-American population, with the belief that enough supportive white voters would ‘cross-over’ to elect a black representative. Democratic legislators reasoned that it would protect the state from a potential Section 2 claim. In 2001, Pender was divided among five different house districts. In the second map and the court-ordered third map, all of Pender, along with northern portions of New Hanover, was included within a state house district. However, in the fourth map drawn in 2003 by the legislature, Pender was vertically cut in half, and both districts were joined with adjacent New Hanover County, which held over two times the ideal state house district population. One of the resulting districts, the 18th, was drawn with a black population of 42 percent, so that an African American candidate could be elected from the “effective black voting district” with potential cross-over white votes.48 However, several Pender County commissioners believed District 18 violated the Whole County Provision and challenged it in May 2004. In Pender County v. Bartlett ,49 a three-judge state panel reviewed the district in December 2005 to the Gingles ’ tripartite preconditions: that a minority population was sufficient in numbers and compact geographically to create a majority within a single-member district; that the minority population was political cohesive and voted as a bloc group; and, that the majority population voted as a bloc itself to “usually … defeat the minority’s preferred candidate.”50 The state argued all three conditions were present, and therefore subject to a VRA Section 2 challenge. The state judges held the first two Gingles ’ conditions satisfied, but could not determine if the third condition was met. In January 2006, both sides stipulated that Pender’s white majority voted sufficiently as a bloc to defeat a preferred candidate of the African American community, but disagreed over whether District 18 was required by the VRA’s Section 2. Ultimately, the court ruled that District 18 met the Gingles ’ conditions

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and that Section 2 required creating a “crossover” district, where “the minority group enjoys reliable support from members of the majority who ‘cross over’ racial or ethnic lines to vote with the minority and elect the minority’s candidate.”51 On appeal, North Carolina’s Supreme Court overruled the lower court in an August 2007 decision. Written by Republican Justice Robert H. Edmunds, the court held that the first Gingles ’ precondition was the only issue at hand, and that the “narrow question before us is whether this precondition …. requires that the minority group constitute a numeral majority of the relevant population, or whether a numerous minority can satisfy the precondition.”52 The core issue was whether the U.S. Supreme Court’s ruling in Gingles required a numerical majority or whether a minority group could be sufficiently large enough in population, with electoral assistance from another racial group, to see their preferred candidate win. First, the court held that the population of a ‘majority’ or ‘minority’ meant voting age population, based on previous U.S. Supreme Court rulings. Edmunds acknowledged there were different ‘types’ of legislative districts that could be constructed: ‘majority-minority’ districts, where the majority comes from a specific minority group; “coalition” districts, where two minority groups join together to elect a candidate; “crossover” districts, in which a minority group is a substantial, but not majority, population and needs “support from a limited but reliable white cross over vote”; and finally, “influence” districts, where a minority group may determine the election’s outcome, but can impact who gets elected.53 Edmunds noted the U.S. Supreme Court had not indicated which type was constitutionally acceptable. Lacking direction from the nation’s highest court, Edmunds found that a majority of federal circuit courts of appeals utilized the ‘majorityminority’ classification when dealing with Section 2. Therefore, when “a minority group lacks a numerical majority in a district, ‘the ability to elect candidates of their own choice was never within the [minority group’s] grasp’.”54 This “bright line rule” would distinguish when a Section 2 claim could be lodged and gave the courts the chance to apply Section 2 “fairly, equally, and consistently throughout the redistricting process.” The bright line rule provided an “ease of application without distorting the statute or (its) intent,” while giving state legislatures “a safe harbor for the redistricting process.” While some claims might not be recognized,

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the rule gave the judiciary a “gate-keeping mechanism” to make “ascertainable and objective standards” when it comes to dealing with Section 2 claims.55 With this rule, Edmunds wrote that a potential “Pandora’s box” effect would be limited for both the legislature and judiciary. When using a strict majority-minority designation, judges would not have to estimate what the ‘threshold minority group size’ would need to be for a coalition, crossover, or influence district. In addition, judges would not have to estimate whether the coalition partners would always be available and support a minority group’s candidate, nor would they have to determine whether one minority group’s claims outweighed another minority, or cross-over majority, group’s claims and support. Finally, if a district was created beyond the majority-minority classification, then the third Gingles ’ precondition would be at odds with the first: “When a minority group is able to accumulate sufficient crossover Caucasian votes that the minority candidate is successful, … the Gingles premise that the Caucasian majority votes as a bloc to defeat the minority group’s candidate is undermined.”56 Therefore, District 18 did not meet the ‘bright line’ test and thus was not a potential VRA Section 2 district. The court ordered the legislature to redraw the district to meet the state constitution’s whole county provision condition and the Stephenson I requirements. The state appealed the N.C. Supreme Court’s ruling directly to the U.S. Supreme Court in 2008 as Bartlett v. Strickland. As the decade was winding down, state officials were eager for a clear rule for future redistricting efforts when it came to potential Section 2 districts. Following oral arguments in October 2008, the high court handed down its opinion in March 2009.57 Writing for a 5-4 majority, Justice Anthony Kennedy affirmed the N.C. Supreme Court’s ruling regarding the 50 percent “bright line rule” for determining Section 2 claims. In doing so, however, Kennedy’s opinion was joined by only two other justices (Chief Justice Rehnquist and Justice O’Connor), while Justices Thomas and Antonin Scalia concurred with the judgement, but issued their own opinion (contending that Section 2 “does not authorize any vote dilution claim, regardless of the size of the minority population in a given district”).58 As the state supreme court did, Kennedy reviewed the various categories, with the District 18 being a “so-called crossover district,” designed to prevent a Section 2 lawsuit. If, as North Carolina claimed, Pender County had been kept whole and in compliance with the state constitution, it would have ‘cracked’ Black voters by dispersing them into

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“districts in which they constitute an ineffective minority of voters.” “We reject that claim,” Kennedy wrote, and held that the ‘pre-emptive’ drawing to avoid a Section 2 claim was “contrary to the mandate of Section 2,” which does not grant “special protection to a minority group’s right to form political coalitions.”59 Kennedy dismissed the notion that “vote dilution” equated to “vote maximization” efforts, and acknowledged, as the N.C. Supreme Court did, that doing so would create a paradox between the first and third Gingles conditions. Kennedy noted the ‘bright line’ 50 percent rule’s usefulness and clarity: it creates “workable standards and sound judicial and legislative administration,” while also “draws clear lines for courts and legislatures alike.” If a “less exacting standard that would mandate crossover districts” was adopted, the judiciary would be placed in an “untenable position” of predicting political dynamics, making race-based assumptions, and making “predictions or … premises that even experienced polling analysts and political experts could not assess with certainty.”60 Some of the issues the courts would have to resolve included: What percentage of white voters supported minority-preferred candidates in the past? How reliable would the crossover votes be in future elections? What types of candidates have white and minority voters supported together in the past and will those trends continue? Were past crossover votes based on incumbency and did that depend on race? What are the historical turnout rates among white and minority voters and will they stay the same? Those questions are speculative, and the answers (if they could be supposed) would prove elusive. A requirement to draw election districts on answers to these and like inquiries ought not to be inferred from the text or purpose of §2.61

In comparison, the “majority minority rule relies on an objective, numerical test: Do minorities make up more than 50 percent of the voting-age population in the relevant geographic area?”62 Kennedy repeated an important concept from Shaw: Racial classifications with respect to voting carry particular dangers. Racial gerrymandering, even for remedial purposes, may balkanize us into competing racial factions; it threatens to carry us further from the goal of a political system in which race no longer matters—a goal that the Fourteenth and Fifteenth Amendments embody, and to which the Nation continues to aspire.63

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Kennedy acknowledged that states can “choose their own method of complying with Voting Rights Act (through Section 5), and we have said that may include drawing crossover districts.”64 Ultimately, Kennedy held it should be judicial ‘avoidance’ rather than judicial ‘predictions’ that guide redistricting jurisprudence regarding race. “Given the consequences of extending racial considerations even further into the districting process, we must not interpret (Section) 2 to require crossover districts.”65 Justice David Souter dissented, contending that by denying the opportunity to elect representatives of their preference, Section 2 would be unavailable to seek relief “from a statewide districting scheme that dilutes minority voting rights.” Instead, Souter argued that unless a minorityopportunity district was allowed, the plurality’s opinion would require states “to pack black voters into additional majority-minority districts,” thus shifting the VRA’s goal to “promoting racial blocs.”66 Souter took exception that the Gingles ’ conditions were “the ultimate standard under Section 2.” Rather, each condition served as “a gatekeeper, ensuring that a plaintiff who proceeds to plenary review has a real chance to show a redressable violation.”67 Souter held Section 2 as being “the opportunity to elect a desired representative,” and thus crossover districts “vindicate (that) interest.”68 In Souter’s opinion, crossover districts would force “polarized factions to break out of the mold and form the coalitions that discourage racial divisions.”69 Ultimately, Souter believed the plurality “boiled Section 2 down to one option: the best way to avoid suit under Section 2, and the only way to comply with Section 2, is by drawing district lines in a way that packs minority voters into majorityminority districts.”70 The court’s end result, Souter concluded, “force(s) the States to perpetuate racially concentrated districts, the quintessential manifestations of race consciousness in American politics.”71

The 2000s and North Carolina’s Continued Fight Over Racial Gerrymandering North Carolina’s redistricting in the early twenty-first century produced more contentious litigation surrounding the role of race and district lines. Beginning with the Cromartie case, North Carolina’s Twelfth Congressional District finally saw a resolution to its continued legal controversy. But this time it was the issue of politics that saved the district lines, not race. The intertwining of partisanship and race in North Carolina redistricting was on full display, and the U.S. Supreme Court deferred

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to politics driving the district’s lines, even though race correlated with partisan behavior. It was also in this decade that North Carolina state courts established their interest in redistricting by not only resolving a critical state question when it came to the “whole county” constitutional provision, but what the whole of redistricting criteria would be for North Carolina moving forward. This state-level jurisprudence regarding redistricting set up the decade’s third major legal controversy, involving both state and federal courts and their role in redistricting law. In Bartlett v. Strickland, the nation’s highest court used a North Carolina state supreme court opinion to confirm that the Voting Rights Act required a majorityminority district, and not necessarily other redistricting creations by the state to avoid running afoul of the VRA’s Section 2. The following decade would see North Carolina once again at the forefront of redistricting litigation, both in terms of racial gerrymandering and partisan gerrymandering. The end of the 2010’s litigation would be the reverse of what ended with the 2000’s litigation. Instead of the federal judiciary confirming a state ruling, 2010 would see a state ruling that took the impetus from the federal judiciary to address what some described as the most frustrating aspect of redistricting in American history.

Notes 1. 2. 3. 4. 5. 6.

7. 8. 9. 10. 11. 12. 13.

Prysby 2007, 182. Cromartie v. Hunt, 133 F. Supp. 2d 407 (E.D.N.C. 2000). Ibid., 413. Ibid., 423. Ibid., 416. These measures calculate the geographic ‘dispersion’ of a district by a drawing a circle around the district, and reporting the proportion of the circle’s area needed to geographically encompass the district—the more expansive the district, the greater the circle and its perimeter calculation. Ibid., 415. Ibid., 418. Ibid., 419. Ibid., 420. Ibid. In 2000, Mike Easley won election as governor, and was the named state official for the case. Easley v. Cromartie, 532 U.S. 234 (2001). Citing Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 266 (1977).

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14. Easley v. Cromartie, 532 U.S. 234 (2001), 242. 15. Easley v. Cromartie, 243. 16. https://www.cnn.com/ELECTION/1998/states/CA/polls/CA92PH. html. Accessed 11/8/2020. 17. https://www.cnn.com/ELECTION/1998/states/CA/polls/CA96PH. html. Accessed 11/8/2020. 18. Ibid., 245. 19. Ibid., 248. 20. Ibid., 249. 21. Ibid., 254. 22. Ibid., 257. 23. Ibid., 258. 24. Karlan, Pamela S. 2001. “The Court Finds Room for Racial Candor.” The New York Times. April 23. 25. “Census Numbers Will Reflect Good, Bad for North Carolina.” Scott Mooneyham. Capitol Letter. December 30, 2000. 26. “North Carolina Dems Threaten GOP in Redistricting.” Associated Press. September 3, 2001. 27. Robertson, Gary D. 2001. “N.C. House GOPs Pledge to Vote Together on Redistricting.” Associated Press. October 16. 28. Robertson, Gary D. 2001. “N.C. House Tentatively Approves New District Maps for Chamber.” Associated Press. October 23. 29. Robertson October 23, 2001, ibid. 30. Fisher, Kerra. 2001. “Democrat Congressional Redistricting Plan Targets Taylor Stronghold.” The Asheville Citizen Times. November 7. 31. Mercurio, John. 2001. “N.C. Map Benefits Democrats; But Vinroot Drops Out of Senate Contest.” Roll Call. November 8. 32. Bonner, Lynn. 2002. “Maps Survive Legal Review.” News and Observer. February 12; and Mooneyham, Scott. 2002. “Justice Dept. OKs N.C. Districts.” February 15. 33. Two state representatives, Leo Daughtry and Art Pope, state senator Patrick Ballantine, and Bill Cobey, NC Republican Party Chair. 34. Five other counties were in the Fifth District besides Pender; three counties in the Fourth District; and two counties in the Seventh District. 35. Stephenson v. Bartlett, 562 S.E.2d 377 (N.C. 2002). 36. Ibid., 381. 37. Ibid., 389. 38. Ibid., 392. 39. Ibid., 388. 40. Ibid., 394. 41. Ibid., 393. 42. Ibid., 395. 43. Ibid., 397.

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44. Ibid., 398. 45. The case returned back to the N.C. Supreme Court as Stephenson v. Bartlett, 582 S.E.2d 247 (N.C. 2003). 46. Ibid., 251. 47. http://censusviewer.com/county/NC/Pender. Accessed November 29, 2020. 48. As summarized by the N.C. Supreme Court in Pender Cty v. Bartlett, 649 S.E. 2nd 364 (N.C. 2007), 367. 49. 649 S.E. 2nd 364 (N.C. 2007). 50. Ibid., 368. 51. Ibid., 368. 52. Ibid., 370. 53. Ibid., 371. 54. Ibid., 372. 55. Ibid., 373. 56. Ibid., 373–374. 57. Bartlett v. Strickland, 556 U.S. 1 (2009). 58. Ibid., 26. 59. Ibid., 14. 60. Ibid., 17. 61. Ibid., 17. 62. Ibid., 18. 63. Ibid., 21. 64. Ibid., 23. 65. Ibid., 23. 66. Ibid., 27. 67. Ibid., 31. 68. Ibid., 32. 69. Ibid., 35. 70. Ibid., 43. 71. Ibid., 44.

CHAPTER 5

Racial Redistricting in the 2010s

Abstract Following their 2010 electoral success, Republicans commanded complete control of North Carolina’s legislature and its redistricting efforts. Republicans drew district lines not just to solidify but insulate their legislative control. However, these maps representing the opposite dynamic of previous North Carolina redistricting litigation. Democrats challenged with a familiar refrain of racial gerrymandering against Republicans, first within state court, and then with federal litigation. The successful challenges to the maps as racial gerrymandering set up the focus on partisan gerrymandering claims. Keywords Redistricting · North Carolina · Racial gerrymandering · Republicans

The 2010s saw seven court cases filed over North Carolina’s state legislative and congressional redistricting issues, first over racial gerrymandering, followed by partisan gerrymandering, in both state and federal courts. During the first half of the decade, three different cases were under litigation at any one time, while between 2015 and 2020, state and federal courts dealt with six cases. The first set of cases dealt with controversies centered on how much race should be utilized in the drawing of © The Author(s), under exclusive license to Springer Nature Switzerland AG 2021 J. M. Bitzer, Redistricting and Gerrymandering in North Carolina, Palgrave Studies in US Elections, https://doi.org/10.1007/978-3-030-80747-4_5

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districts, and how to reconcile the competing demands when using race to assign voters to certain districts. Combined with other U.S. Supreme Court decisions, North Carolina was yet another center-point in the jurisprudence over race and redistricting. Following the resolution of racial gerrymandering claims, the partisan gerrymandering cases began their judicial journeys in 2016, to be covered in the next chapter. The federal case of Common Cause v. Rucho attacking the decade’s second version of North Carolina’s congressional maps, followed by the state cases of Common Cause v. Lewis , which dealt with the state legislative maps, and Harper v. Lewis, which challenged the congressional maps. The final state case, N .C. NAACP and League of Women Voters of NC v. Lewis , dealt with a little known, but important, state constitutional issue regarding when the legislature could redraw districts.1

North Carolina’s Partisan Environment: The Sorting and Division Grows More Intense The state’s politics of the 2010s began with the highly competitive 2008 election. Very few expected North Carolina to be a Democratic win for Barack Obama, but following his narrow half-point win, the subsequent Republican backlash created a period of intense partisan division and competitive elections. Echoing the trends from the 1980s, North Carolina’s federal state-wide races in the 2010s continued to be Republican favored. Mitt Romney and Donald Trump won the state’s electoral votes, but within close margins: Romney saw a 2.04 percentage win, followed by Trump’s 3.66 and 1.34 percentage wins in 2016 and 2020. In 2014, Republican Speaker of the North Carolina House Thom Tillis beat incumbent Democratic U.S. Senator Kay Hagan by a point-and-a-half. Six years later, Tillis won re-election, again by the narrowest of margins (1.75 percent). The largest margin of victory in a federal state-wide election came in 2010s Republican wave year, fueled by the Tea Party insurgency. Incumbent U.S. Senator Richard Burr won by 11.7 percentage points. If one added North Carolina’s Republican and Democratic presidential and U.S. Senate votes between 2008 and 2020, Republicans received 49.5 percent to Democrats’ 47.7 percent. Conversely, Democrats held the advantage when it came to the Council of State contests.2 From 2008 to 2020, Democrats secured 22 victories to 18 for Republicans. Among the Democratic wins, Roy Cooper’s 2008

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run for attorney general had the largest vote percentage (61 percent, not including his unopposed 2012 contest), while the GOP Commissioner of Agriculture secured the largest Republican vote in 2016, at 56 percent. Overall, adding the various executive statewide offices vote tallies between 2008 and 2020, Democrats garnered 51.5 percent to 48.9 percent for Republicans. While both analyses demonstrate North Carolina’s competitive intensity since 2008, congressional and state legislative district races tended to be fairly lop-sided events, thanks to Republican’s 2011 redistricting efforts.

The GOP’s First Redistricting Following the 2010 election and Republican’s legislative victories, Representative David Lewis and Senator Bob Rucho began work as their chamber’s committee chairs and as co-chairs for a bicameral congressional redistricting committee. In their first statement, they wrote that they were “committed to proposing fair and legal districts for all citizens of North Carolina, including our minority communities.”3 While never defining what a ‘fair’ district was, Rucho and Lewis focused on the districts they believed would be covered by the Voting Rights Act. Both stated that, under Bartlett v. Strickland, Section 2 VRA districts “must be created with a ‘Black Voting Age Population’ (‘BVAP’) … at the level of at least 50% plus one.”4 Rucho and Lewis announced a goal of “each plan (including) a sufficient number of majority African American districts to provide North Carolina’s African American citizens with a substantially proportional and equal opportunity (the state’s Black voting age population) to elect their preferred candidates of choice.”5 With the state’s 2010 Black population at 22 percent,6 a proportional allocation would have been twenty-six House seats and eleven Senate seats. Ultimately, the committees created twenty-four House and nine senate “majority African American” districts, along with two additional house districts where the total Black voting age population would be above 43 percent. These districts were based on the statewide Total Black Voting Age Population (TBVAP) figures. According to Rucho, proportionality required 10 majority-minority senate districts, but he was “unable to identify a reasonably compact majority African American population” to create the tenth district.7 Both chairs “rejected the possibility of any districts that would constitute the ‘cracking’ or ‘packing’ of any reasonably compact African

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American population” along with not “stacking” a minority population, or “the submergence of a less affluent, geographically compact, African American population capable of being a majority in a single member district, within a larger, more affluent majority white population.” They wanted to draw a majority Native American district for both chambers, and invited proposals for a majority Hispanic district in either chamber. Lewis and Rucho “recommend[ed] that any proposed state-wide plan contain a sufficient number of districts that will bring African American citizens as close as possible to substantially proportionality in the number of majority African American districts.”8 This served as a critical point regarding future judicial review of the districts’ legality and constitutionality. The Republican legislators retained a Raleigh law firm, and in December 2010, the firm hired Dr. Thomas Hofeller as a redistricting consultant. Hofeller worked on Republican state redistricting efforts since 1990 and served as Republican National Committee’s redistricting coordinator. Only Lewis and Rucho interacted with Hofeller through oral instructions on how they wanted districts drawn, as opposed to written documents.9 This was one of Hofeller’s “lessons learned” from his previous experience: “‘Emails are the tool of the devil.’ Use personal contact or a safe phone!” Hofeller believed that “a journey to legal HELL starts with but a single misstatement OR a stupid email!”.10 Hofeller’s work, with more than 38,000 files related to North Carolina’s redistricting activities, eventually came to light when his estranged daughter released data files following her father’s death in August 2018.11 Hofeller’s maps fulfilled the chairs’ goals for minority districts. Following the Stephenson ruling to create VRA districts with 50 percent BVAP populations, Hofeller isolated Black Democratic voters, leaving White voters in the surrounding districts, thus benefiting Republicans. Once the legislature adopted the maps in September 2011, Republicans submitted the maps to both Obama’s DOJ and to the District Court for the District of Columbia for review. DOJ precleared the maps on November 1 (see Map 5.1 for congressional districts).12 Hofeller’s efforts were quickly realized. Republican majorities within both state chambers increased and held in subsequent elections. Following the 2010 elections, Republicans held 56 percent of the house seats and 62 percent of the senate. After the redrawn maps went into effect with the 2012 election, Republican seats increased to 64 percent of the house and 66 percent in the senate. In 2016, the GOP house share

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Map 5.1 North Carolina congressional districts, enacted 2011, used 2012– 2014 elections (Source https://www.ncleg.gov/Files/GIS/Plans_Main/Con gress_2011/mapSimple.pdf)

would drop slightly to 62 percent, while the senate control would increase to 70 percent. Among the congressional districts, Republicans held a 103 advantage across the 2012–2016 elections. In effect, Republicans had purchased a political policy for legislative control. These numbers were critical when Republican governor Pat McCrory, elected in 2012, lost to Democrat Roy Cooper in 2016. With Republican super-majorities in both chambers, the GOP could override Cooper’s vetoes.

Racial Gerrymandering Claims: Dickson v. Rucho in State Court Following DOJ’s preclearance in November 2011, Dickson v. Rucho became the first of seven lawsuits filed over the decade. A consolidated case filed by several former and current elected officials, the North Carolina branch of the NAACP, and Robinson O. Everett Jr., this state lawsuit attacked multiple Voting Rights Act districts that contained BVAP of more than 50 percent as racial gerrymanders. Following a June 2013

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trial, a state three-judge panel unanimously ruled in July that the legislature applied core redistricting principles to ensure a partisan advantage, with no constitutional infirmities. In their opinion, the case focused on two legal issues. First, were twenty-six state legislative districts drawn under the Voting Rights Act created to either provide for a remedy, or avert a challenge, where racially-polarized voting could be claimed under Section 2? Second, in six specific districts, what served as the predominant factor in their creation? The state judges contended that Republican legislators were caught between two conflicting legal points, the Fourteenth Amendment’s equal protection clause prohibiting racial consideration during redistricting versus the Voting Rights Act implementing the Fifteenth Amendment’s protection of the right to vote on account of race. The trial court noted several factors that influence the legislature’s maps: compliance with the state’s Whole County Provision; creating VRA-compliant districts with a total Black voting age population above 50 percent; and creating a proportional number of VRA-compliant districts. The final two conditions reflected Republican’s compelling government interest, most notably to avoid VRA Section 2 liability and obtain Section 5 preclearance. Even under strict scrutiny, the trial court found that the state met a ‘compelling government interest,’ and thus racial considerations, driven by the VRA, could be used to draw majority-minority legislative and congressional districts, despite the Fourteenth Amendment’s prohibition of racial considerations.13 Upon appeal, the state’s highest court agreed in December 2015 that compliance with the VRA’s Sections 2 and 5 constituted a “compelling state interest.”14 Writing for the court, Republican Justice Robert H. Edmunds held that the General Assembly used Section 2 as a “shield,” rather than its traditional use by plaintiffs as a “sword.”15 The legislature noted the presence of racially-polarized voting, as documented by two experts at trial. Both the trial court and, later, the N.C. Supreme Court ruled that “before making its redistricting decision, (the state) had a strong basis in evidence on which to reach a conclusion that race-based remedial action was necessary” for each district, thus a compelling interest to avoid Section 2 liability. Edmunds reviewed the state’s interest under Section 5’s avoidance of ‘retrogression,’ i.e. the “diminishing (of) the ability of any citizens of the United States on account of race or color … to elect their preferred candidates of choice.”16 Republicans drew the 2011 districts to gain Section 5

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preclearance, due to forty of North Carolina’s 100 counties being “covered.” However, after the maps were passed, North Carolina found itself no longer under Section 5 oversight, due to the U.S. Supreme Court’s 2013 ruling in Shelby County (Alabama) v. Holder. In Shelby County, the nation’s highest court held that the VRA’s Section 4 coverage formula, utilizing 1960s and 1970s data, raised “serious constitutional questions” because of decades-old data. Section 4’s formula led to Section 5’s coverage of a jurisdiction for federal oversight. Written by Chief Justice John Roberts, the five conservative justices held that current conditions cannot be ignored when Congress wants to single out jurisdictions or states for ‘preclearance.’ Using 50year-old data to exert current federal oversight of state voting and election laws was unconstitutional.17 Thus, North Carolina, along with several other states, no longer had to seek federal approval for changes to their election laws, including redistricting. Before the Shelby County decision, Edmunds held North Carolina Republicans had a compelling interest to satisfy the VRA in the 2011 maps, with the state engaged in a narrowly tailored effort, based on the Pender County 50 percent ‘bright line rule.’ Edmunds sought to answer “whether the percentages of (BVAP) in each of (the) challenged districts are higher than ‘reasonably necessary’ to avoid the risk of vote dilution.”18 The state had created majority-minority districts within a range of BVAP of 50–57 percent, with an average of 52 percent. Edmund reasoned that the BVAP was one of several redistricting factors (along with the Whole County Provision, incumbent protection, one-person/one-vote, and partisan considerations). And because BVAP was one of many factors, the state had a “sufficiently narrowly tailored” rationale for the majorityminority districts, especially given that the districts “did not classify individuals based on race to an extent greater than reasonably necessarily to comply with the VRA, while simultaneously taking into account traditional districting principles.”19 The totality of considerations gave the state legislature a “safe harbor” to create such districts and therefore the legislature did not engage in racial gerrymandering. The state supreme court’s majority also held that the state used proportionality “as a means of inoculating the redistricting plans” against Section 2 claims under the “totality of the circumstances” test.20 In addition, the non-VRA challenged districts were not drawn with race as a “predominate factor,” but alongside other redistricting factors that served the state’s legitimate government interests.21

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Edmunds finally turned to the state issues, most notably the Whole County Provision. The state’s initial focus began with creating VRA districts, followed by creating single county-based districts, and single counties with multiple districts within. Beyond single county districts, the Stephenson case required that redrawing should focus on creating districts with two adjoining counties, before moving on to three contiguous counties, and so forth, and that the legislature had followed Stephenson’s requirements. Edmunds upheld the Republican’s approach to redistricting. Upon appeal, the U.S. Supreme Court sent the case back in April 2015 to the state supreme court to reconsider in light of their decision in Alabama Legislative Black Caucus versus Alabama. In Alabama’s 2011 redistricting efforts, legislators interpreted Section 5 to keep its majorityminority districts at the same African American population percentages to avoid retrogression claims. However, some districts saw their Black populations decrease over the decade. Therefore, the legislature incorporated new Black populations into the majority-minority districts in order to equalize population, which created disjointed district lines. The state’s Legislative Black Caucus and the Alabama Democratic Caucus attacked the maps as racial gerrymandering prohibited under Shaw. A three-judge panel, in a 2013 decision, analyzed the districts on a state-wide basis and held that the districts were not redrawn primarily on race. On March 25, 2015, the U.S. Supreme Court reversed the lower court’s decision in a 5-4 decision, finding that a “district-by-district” analysis of whether race predominated should have been conducted, rather than the state-wide analysis. Under Justice Stephen Breyer’s majority opinion, the equal population standard is not a ‘traditional’ redistricting factor when racial predominance is being determined, and that Alabama’s legislature and the lower court misinterpreted Section 5. Breyer held that Section 5 required only a minority’s ability to elect a preferred candidate of their choice. In dealing with potential retrogression, and thus a Section 5 violation, judges should consider whether new districts would likely deprive minority voters of their ability to elect their candidate of choice, and not on a mechanically-driven numerical percentage. Breyer acknowledged that this vagueness could complicate state redistricting efforts:

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In saying this, we do not insist that a legislature guess precisely what percentage reduction a court or the Justice Department might eventually find to be retrogressive. The law cannot insist that a state legislature, when redistricting, determine precisely what percent minority population (Section) 5 demands. The standards of Section 5 are complex; they often require evaluation of controverted claims about voting behavior; the evidence may be unclear; and, with respect to any particular district, judges may disagree about the proper outcome. The law cannot lay a trap for an unwary legislature, condemning its redistricting plan as either (1) unconstitutional racial gerrymandering should the legislature place a few too many minority voters in a district or (2) retrogressive under §5 should the legislature place a few too few. … Thus, … a court’s analysis of the narrow tailoring requirement insists only that the legislature have a “strong basis in evidence” in support of the (race-based) choice that it has made.22

This ‘district-by-district’ analysis served as the core question that North Carolina’s Supreme Court was tasked with reconsidering. Under an opinion written by Justice Paul Newby, the state’s high court found that the lower court had conducted a district-by-district analysis in its 188page findings, and subsequently upheld the districts as constitutional, again based on a compelling state interest regarding the VRA’s Section 2 obligations. On a second appeal to the U.S. Supreme Court, the challengers focused on whether the legislature’s proportionality factor was constitutional in light of the VRA. Specifically, were majority-black legislative districts, with BVAP of more than 50 percent, required to match the Black population’s state percentage? In May of 2017, the U.S. Supreme Court vacated the N.C. Supreme Court’s second reaffirming decision, but due to another North Carolina case that had made its way to the nation’s highest court, sent it back for a third review by the state’s high court in light of that decision. Ultimately, Dickson v. Rucho would be declared ‘moot’ (or no longer a case or controversy) due to the fact that the 2011 maps were declared unconstitutional in two other cases. The two cases that stripped Dickson of its legal status were working their way through the legal system at the same time: Covington v. North Carolina and Harris v. McCrory (subsequently known as Harris v. Cooper, due to Roy Cooper’s victory over Pat McCrory for governor in 2016).

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Harris v. McCrory/Cooper: Attacking the Congressional Districts as Racial Gerrymandering The decade’s second lawsuit was a federal case focusing on racial gerrymandering within the congressional maps. Following the 2013 Shelby County ruling, three North Carolina voters alleged in October that since forty counties were no longer covered under Section 5, the First and Twelfth congressional districts were drawn “with race as their predominant purpose,” and thus were unconstitutional. Following an October 2015 trial, a three-judge federal panel issued a February 2016 ruling that the two congressional districts violated the Fourteenth Amendment’s Equal Protection Clause. Written by Judge Roger L. Gregory, the court noted that prior to 2010, the First’s BVAP fell below 50 percent, and remained below 50 percent through 2010. In its initial form, the Twelfth saw a BVAP greater than 50 percent due to DOJ’s maximization policy, yet subsequent versions saw its BVAP drop to as low as 32 percent, before settling at 42 percent in 2001. However, African American candidates “easily and repeatedly won reelection” in both districts. The court reasoned that African American voters had “tremendous success in elected their preferred candidates … regardless of whether those districts contained a majority black voting age population…”.23 Nonetheless, with the expressed criteria of drawing 50 percent-plusone Black districts, including at the congressional level, Lewis and Rucho had Hofeller draw the 2011 First and Twelfth (which included Section 5 VRA Guilford County) at 50 percent BVAP. Hofeller’s final versions of the First held an overall Black population of 53 percent, with a BVAP of 52 percent, while the Twelfth held an overall Black population of 51 percent and a BVAP of just about 50 percent. Both districts retained their odd configurations. Gregory’s opinion noted the plaintiffs held the burden of demonstrating, through “circumstantial evidence of a district’s shape and demographics or more direct evidence going to legislative purpose, that race was the predominant factor motivating the legislature’s decision to place a significant number of voters within or without a particular district.” This evidence also had to show that racial consideration overrode other ‘traditional race-neutral redistricting principles,’ such as compactness, respect for political subdivisions, and contiguity, and could be proven by public

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statements and sworn testimony by officials overseeing redistricting. If the plaintiffs successfully showed that race predominated, the burden shifted to redistricting officials to demonstrate they drew the lines, under the strict scrutiny standard, to achieve a narrowly-tailored compelling government interest, based on the Miller case from Georgia. The federal court determined that race was “the only nonnegotiable criterion and that traditional redistricting principles were subordinate to race.” Gregory was blunt: “the overwhelming evidence … shows that a BVAP-percentage floor, or a racial quota, was established in both (congressional districts)” and “that floor could not be compromised.”24 However, unlike the state’s Dickson ruling, these federal judges were unpersuaded by the Republicans’ claims of protecting the maps from DOJ or judicial scrutiny. “Evidence of narrow tailoring in this case is practically nonexistent; the state does not even proffer any evidence with respect to” the Twelfth, and therefore the court ruled the congressional maps did not achieve VRA compliance and failed the strict scrutiny examination.25 The court held that Republicans provided “an extraordinary amount of direct evidence,” creating “a textbook example of racial predominance” for both districts.26 The co-chairs’ directions to Hofeller of ensuring the 50 percent-plus-one standard overrode all other redistricting principles, a quota that “operated as a filter through which all line-drawing decisions had to pass.” The court cited Lewis and Rucho, who attested to the 50 percent maximization policy because, as Rucho noted to state senator Dan Blue, “Strickland informed (Rucho) that that’s what he’s supposed to do.”27 The legislature had to add population to the First, but Gregory noted that Hofeller “intentionally included high concentrations of African-American voters in CD 1 and excluded less heavily African-American areas from the district.”28 While Hofeller had discretion to determine how high the First’s BVAP could go, “he had no discretion to go below” 50 percent. The court held this was “the very definition of a racial quota.”29 The court found that Hofeller discounted fundamental redistricting principles, particularly splitting counties and precincts, as well as ignored any mathematical measures of compactness. Even with the state’s argument that the First was an incumbent protecting and partisan gerrymander, the court referred back to Shaw II: “that the legislature addressed these interests [need] not in any way refute that race was the legislature’s predominant consideration.”30 Whenever other redistricting principles were subordinated to racial dynamics, no matter how much the

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other principles were used, race still predominated. “Here the record is unequivocally clear: the general assembly (sic) relied on race—the only criterion that could not be compromised—in substantial disregard of traditional redistricting principles.”31 In analyzing the Twelfth, Gregory admitted the district presents “a slightly more complex analysis” as to whether race predominated. By noting that both Lewis and Rucho publicly stated that “In creating new majority African American districts,” the court held that not just the First would be a majority-BVAP district.32 In fact, both chairs stated that because Guilford was a Section 5 covered county at the time and was part of the previous Twelfth, “we have drawn our proposed Twelfth District at a black voting age level that is above the percent” found in the previous version.33 Even though it was alleged that Rucho informed Twelfth’s U.S. Representative Mel Watt that the Republican “leadership told (Rucho) that they were going to ramp” up the district’s BVAP to above 50 percent, which the court believed, Gregory was clear that the BVAP numbers spoke for themselves. “[M]ake no mistake, the BVAP in CD 12 was ramped up: the BVAP increased from 44 to 51 percent. … Such a consistent and whopping increase makes it clear that the general assembly’s predominant intent regarding district 12 was also race.”34 The court noted the Twelfth’s lack of compactness across the middle of the state, along with Hofeller’s testimony that he “made the district even less compact.”35 Hofeller noted that politics drove the Twelfth’s design, to make the surrounding Fifth and Sixth districts more Republican. But ironically, Rucho and Lewis rebutted these claims during the process that the district had been drawn as an “extreme partisan gerrymandering,” and thus undermined their own argument. Brent Woodcox, the legislature’s redistricting counsel, wrote in an e-mail about countering the partisan argument. Woodcox contended that party registration would suffice to address the partisan competitiveness, because it “serves in my estimation as a strong legal argument and easily comprehensible political talking point.” The court, however, did not buy the state’s claim: “this language intimates that the politics rationale on which the defendants so heavily rely was more of an afterthought than a clear objective.”36 Even though race dominated, Gregory acknowledged that the state could defend its decision by showing the plans were “narrowly tailored to serve a compelling government interest.” Gregory made quick resolve of the state’s burden. Regarding the Twelfth, “the defendants failed to carry that burden.” And as argued in Dickson, that the First was drawn to

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comply with the VRA’s Section 2 “results” test and 5 “nonretrogression” principle, Gregory made short work of that defense as well.37 Even if VRA compliance was a compelling state interest, as the legislature argued with its “shield” defense, Republican legislators failed to meet the “strong basis in evidence” standard to justify their use of race, due to not proving the Gingles third condition. The court noted that Hofeller did not conduct a racial-polarized voting analysis for the First, and the state admitted that African Americans in the First, since its creation in 1992, had been able to elect their own candidates, thus failing the third Gingles factor. The state failed to demonstrate that the white majority was “actually voting as a bloc” to defeat the African American’s preferred candidate. In fact, the First’s “election results … vividly demonstrate that … the white majority did not vote as a bloc.”38 In regards to the state’s Section 5 “nonretrogression” claim, the court found it failed to answer a key question: “why should the general assembly create such a district”?39 Since 1992 and even when the district’s BVAP dropped below 50 percent, Black candidates continually won election in the First. This was a key legal issue in Vera, when the court found Texas’s racial districts unconstitutional. In declaring the 2011 First and Twelfth Congressional Districts as racial gerrymanderings, the court gave the state legislature until February 19, 2016, to enact a second redistricting plan. On that date, the North Carolina General Assembly passed the second version of congressional districts, this time with an entirely new approach to redistricting: partisanship. In the meantime, one more racial gerrymandering case focused on the state’s legislative districts.

Covington v. NC: Attacking the State Legislative Districts as Racial Gerrymandering While Dickson and Harris worked their way through the state and federal legal systems respectively, another federal case, Covington v. North Carolina, was filed in May 2015 by thirty-one plaintiffs, this time alleging that the state legislative district maps violated the Fourteen Amendment’s equal protection clause. Again, due to the 50 percent benchmark, plaintiffs challenged nine senate and nineteen house districts, especially when lower black population levels had previously elected black candidates from those same districts. Following an April 2016 trial, a three-judge federal

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district court panel ruled in August that the state districts were unconstitutional. Federal Judge James A. Wynn, Jr.’s opinion held that race predominated in twenty-eight legislative districts.40 Wynn echoed the congressional map holding that the state failed to provide evidence that the “majority votes sufficient as a bloc to enable … (the) defeat (of) the minority’s preferred candidate,” one of the Gingles conditions for Section 2, along with failing to demonstrate a “reasonably necessary” compliance with Section 5’s retrogression.41 The court ruled that Republicans’ actions in creating Section 2 districts overlooked the reality of successful Black candidate elections. Even though the number of majority-minority districts had decreased between 1991 and 2010 (in the house, from thirteen to nine, and in the senate, from four to zero), Black legislative candidates still had electoral successes. In fact, eleven African-American candidates won house seats and seven won senate seats in the 2010 Republican wave election. The court believed that the Republicans’ rationale for VRA-district maps was offset by Black electoral success. According to Wynn, the U.S. Supreme Court gave indications of when “racial considerations predominated in a districting decision,” such as “statements by legislators identifying race as a chief districting criterion,” “attaining a racial percentage within a given district was nonnegotiable,” “bizarre or non-compact district shape,” “district lines that cut through traditional geographic boundaries or local election precincts,” and (with the recent Alabama case), “prioritizing mechanical racial targets above all other districting criteria (save one-person, one-vote).”42 Because of the co-chairs’ many public statements regarding the 50 percent BVAP criteria, using the “BVAP target was of paramount concern for the chairs as they drew purported VRA districts.”43 The redistricting chairs stressed the importance of Black elected-officials proportionality to Black population, and by doing so, in Lewis’s own words, proportionality would “insulate (NC) from lawsuits.”44 Wynn’s opinion was blunt: “This was not a proper interpretation of the law.”45 Proportionality was just one “relevant fact” in examining redistricting efforts but not required, and that it did not create any notion of a “safe harbor” from Section 2 challenges and could not be used “at the cost of fracturing effective coalition districts.”46 Nonetheless, the chairs and Hofeller’s work more than tripled the number of majority-Black legislative districts, thereby engaging in “maximizing” VRA districts.

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Even if maximization was not the goal, “this statewide numerical target was based on race, and that it was of principal importance.”47 These race-based goals left other traditional districting principles as “secondary, tertiary, or even neglected entirely.”48 Hofeller split precincts that were racially diverse, without consideration of the political subdivisions or communities that they were in. By his own admission, Hofeller never used the map-drawing software program that could have calculated different compactness measures, and that the Whole County Provision was subservient to the 50 percent-plus-one BVAP target. Wynn reviewed the state’s Sections 2 and 5 defense and acknowledged that the U.S. Supreme Court had yet to resolve “whether compliance with the VRA is a compelling state interest” beyond its assumption as much in Vera. At the time (before the Shelby County decision), Republicans were concerned about Section 5 compliance. Wynn reviewed the Gingles criteria and contended legislators never demonstrated the third Gingles factor: “that the white majority votes sufficiently as a bloc to enable it …. usually to defeat the minority’s preferred candidate.”49 While Republicans demonstrated “racially-polarized voting” patterns, they did not provide sufficient evidence of “racial bloc voting.” Polarized voting provides “evidence that black and white voters generally prefer different candidates,” yet bloc voting allows the majority (white) voting group to defeat the minority’s preferred candidate. To support their contention of Gingles ’ third factor, Republicans had to “give consideration to the actual and potential effect of bloc voting on electoral outcomes.”50 Republicans failed to do so and “misconstrued what the third Gingles factor” required. The court rejected the Section 5 defense, that not creating 50 percentplus-one VRA districts would cause retrogression. Noting that some counties were not under Section 5 coverage, and therefore could not justify the remedy, Wynn cited the Alabama case as refuting a “mechanically numerical view as to what counts as forbidden retrogression” to provide the narrow tailoring to avoid a Section 5 claim.51 Lewis, Rucho, and Hofeller provided “no evidence that they performed any analysis to determine the appropriate BVAP for the challenged districts,” and thus failed to show a “strong basis in evidence” that the BVAP was “reasonably necessary to avoid” a Section 5 claim.52 The co-chair’s proportionality goal—a ‘maximization’ policy, as the court described it—was also not “properly grounded in Section 5.”53 While the Republicans appealed the ruling to the U.S. Supreme Court, plaintiffs sought another remedy: instead of redrawing maps for the 2018

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elections, new maps should be drawn by January 2017, with a special election held in November of that same year. Defendants countered with a May 2017 deadline for the new maps, and on November 29, 2016, the court settled for a March 15, 2017 deadline. In addition, the court ordered that any legislator elected in 2016 and whose district was altered would only serve until the special election. In turn, those elected in the November 2017 election would only serve one year. In January 2017, the U.S. Supreme Court stayed the special election, and on June 5, issued two orders. It first affirmed, without an opinion, the district court’s decision that the challenged VRA districts were unconstitutional.54 The high court also issued a per curium 55 opinion that vacated the 2017 special election order due to the lower court giving only “minimal reasoning” for ordering the special election.56 Following the high court’s decision, Governor Roy Cooper called for a redistricting session to begin on June 8. Republican legislative leaders rejected the call the following day. On July 31, the three-judge panel set a September 1 deadline for the new legislative maps. Republicans again worked closely with Hofeller on the second round of maps, using the following criteria: equal population; contiguity; county groupings; compactness; fewer split precincts; considering municipal boundaries; incumbency protection; election data (“political considerations and election results data may be used”); and finally, no consideration of racial data.57 As with the second congressional map, politics dominated the redrawing. When debating the criteria, Lewis made specific reference to Republican’s intent to partisan gerrymandering. “The consideration of political data in terms of election results is an established districting criteria, and it’s one that I propose that this committee use in drawing the map.”58 On August 19 and 20, Hofeller’s plans were released, which saw one-hundred and sixteen districts altered.59 Despite plaintiff’s objections and receiving public comments, the two committees adopted Hofeller’s proposals, with the full General Assembly adopting both plans on August 31, one day ahead of the deadline. After reviewing the new maps, plaintiffs objected to twelve revised districts as racially gerrymandered and sought a “special master” to fix the issues and draw new maps.60 The court agreed with nine of the districts,61 finding not only were there several districts that continued the “core” of the previous unconstitutional districts, but that the legislature redrew several districts in Wake and Mecklenburg counties that were not found to be unconstitutional. Recognizing that the 2018 election cycle would

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begin shortly, the court appointed Dr. Nathaniel Persily as Special Master on November 1, 2017 to redraw seven house and two senate districts, under several conditions.62 Persily, a Stanford University’s Law School professor at the time, previously served as a special master for redrawing districting plans in several states.63 Within a month, Persily presented his map. Legislative defendants attacked the proposal as not “meaningfully different” from its own 2017 version, with the exception that BVAP was reduced in redrawn districts and that it “favor Democrats.”64 On January 19, 2018, the court adopted Persily’s maps, dismissing several arguments from the legislative defendants, especially regarding whether Persily “impermissibly sought” a BVAP quota and whether the “Special Master impermissibly drew the plan to favor the Democratic party.”65 Republicans appealed the special master’s plan, and on February 6, 2018, the U.S. Supreme Court stayed the lower court ruling regarding the districts within Wake and Mecklenburg counties, yet allowed the other districts to be used in the 2018 elections. On June 28, the same day that another North Carolina case, Harris v. McCrory, was affirmed, the U.S. Supreme Court issued a per curium opinion upholding the special master’s redistricting plan, agreeing with the lower court’s ruling that parts of the legislature’s second redistricting contained racially gerrymandered districts. The special master’s plans were implemented for the 2018 elections, but these plans would come under the next round of attack, this time for claims of partisan gerrymandering within the 2017s redistricting plans.66 The first half of North Carolina’s 2010 redistricting decade proved once again to be a litigious period. Two federal cases clarified the legal process regarding race in redistricting. When legislators set concrete markers for racial dynamics within the districts, overriding other redistricting factors, the efforts are unconstitutional based on racial gerrymandering. Lewis’ and Rucho’s efforts, with Hofeller’s assistance, to produce “fair and legal” maps proved to be an illusionary statement. Legally, the maps violated the Fourteenth Amendment’s equal protection clause, while many argued that the increase proportions of Republican majorities in a closely divided state distorted the notion of ‘fair.’ But as is the case in politics, fair is in the eye of the partisan beholder. When it came to the second round of redistricting in 2016, Republican map-makers made no pretense of declaring their maps as “fair,” but were clear-eyed in being partisan, ultimately to a fault.

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Notes 1. In February 2018, a number of Wake County residents and civil rights organizations challenged the redistricting plan that was designed following the Covington case, arguing that the state constitution prohibited middecade redistricting of state legislative districts. A state court granted summary judgment to the plaintiffs, and ordered the legislature to redraw four state house districts in Wake County for the November 2020 election. 2. Council of State positions are the ten executive branch offices: governor, lieutenant governor, attorney general, auditor, commissioners of agriculture, insurance, and labor, secretary of state, superintendent of public instruction, and treasurer. 3. “Joint Statement by Senator Bob Rucho, Chair of the Senate Redistricting Committee, and Representative David Lewis, Chair of the House Redistricting Committee,” June 17, 2011. https://www.ncleg.gov/ Files/GIS/ReferenceDocs/2011/Joint%20Statement%20by%20Senator% 20Bob%20Rucho%20and%20Representative%20David%20Lewis_6.17.11. pdf. Accessed on 12-8-2020. 4. Joint Statement, June 17, 2011. 5. Emphasis added. 6. https://www.census.gov/quickfacts/fact/table/NC/POP010210. Accessed December 12, 2020. 7. “Joint Statement by Senator Bob Rucho, Chair of the Senate Redistricting Committee, and Representative David Lewis, Chair of the House Redistricting Committee,” June 17, 2011. https://www.ncleg.gov/ Files/GIS/ReferenceDocs/2011/Joint%20Statement%20by%20Senator% 20Bob%20Rucho%20and%20Representative%20David%20Lewis_6.17.11. pdf. Accessed December 12, 2020. 8. Ibid. 9. Harris v. McCrory, 607. “there is no written record of the precise instructions Senator Rucho and Representative Lewis gave to Dr. Hofeller. Dr. Hofeller never received instructions from any legislator other than (Rucho or Lewis), never conferred with Congressmen Butterfield or Watt (the two Black representatives from the First and Twelfth Districts), and never conferenced with the Legislative Black Caucus (or any of its individual members).” 10. Emphasis in the original. “What I’ve Learned about Redistricting—The Hard Way!” by Thomas B. Hofeller to the NCSL National Redistricting Seminar, January 24, 2011. https://www.ncsl.org/documents/legismgt/ The_Hard_Way.pdf. Accessed 12-8-2020.

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11. “Order Lifting Confidentiality,” N.C. Superior Court Division 18 CVS 014001. November 4, 2019. https://www.commoncause.org/wp-con tent/uploads/2019/11/2019.11.04-Order-on-Confidential-Files.pdf. Accessed December 12, 2020. 12. “Status of Statewide Redistricting Plans.” https://www.justice.gov/crt/ status-statewide-redistricting-plans. Accessed December 12, 2020. 13. Trial procedures and decision summarized in Dickson v. Rucho, 367 N.C. 542 (2014). 14. Dickson v. Rucho (NC), 248. 15. Dickson (NC), 249. 16. Dickson (NC), 252. 17. 570 U.S. 529 (2013). 18. Dickson (NC), 254. 19. Ibid. 20. Dickson (NC), 256. 21. Dickson (NC), 258. 22. Alabama Legislative Black Caucus v. Alabama, 135 S. Ct. 1257 (2015). 23. Harris v. McCrory, 8. 24. Harris v. McCrory, 19. 25. Harris v. McCrory, 20. 26. Harris v. McCrory, 22. Emphasis added. 27. Harris v. McCrory, 24. 28. Harris v. McCrory, 26. 29. Harris v. McCrory, 27. 30. Harris v. McCrory, 30. 31. Harris v. McCrory, 32. 32. Harris v. McCrory, 33–34. Emphasis added. 33. Harris v. McCrory, 34. Emphasis added. 34. Even though the state’s attorneys denied the conversation between Watt and Rucho took place and challenged Watt’s recollection, the court noted Watt’s “consistent recollection” and the fact that the defendants did not call Rucho to rebut the testimony (even though the senator was present during the testimony and trial), the court believed Rucho did “explain … that the legislature’s goal was to ‘ramp up’ CD 12’s BVAP.” Harris v. McCrory, 37–38. 35. Harris v. McCrory, 39. 36. Harris v. McCrory, 44. 37. Harris v. McCrory, 49–50. 38. Harris v. McCrory, 55–56. 39. Harris v. McCrory, 58. 40. Covington v. North Carolina. 316 F.R.D. 117 (M.D.N.C. 2016).

114 41. 42. 43. 44. 45. 46. 47. 48. 49. 50. 51. 52. 53. 54. 55. 56.

57. 58. 59. 60. 61.

62.

63. 64.

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Ibid., 124. Ibid., 129. Ibid., 131. Ibid., 133. Ibid. Ibid. Ibid., 134. Ibid., 137. Ibid., 167. Ibid., 168 (emphasis in original). Ibid., 175. Ibid., 175–176 (emphasis in original). Ibid., 176. https://www.supremecourt.gov/orders/courtorders/060517zor_e18f. pdf. “Per curium” is an unsigned opinion. NC v. Covington, per curium opinion, 581 U.S. ___ (2017), 3. https:// www.brennancenter.org/sites/default/files/legal-work/Covington_Per CuriamOpinion_06.05.17.pdf. Accessed December 11, 2020. Covington v. North Carolina, 283 F. Suppl. 3d 410 (M.D.N.C. 2018), at 417–418. Common Cause v. Lewis, 37. Covington v. North Carolina, 283 F. Suppl. 3d 410 (M.D.N.C. 2018), at 418. Covington v. North Carolina, 283 F. Supp. 3d 410 (M.D.N.C. 2018), at 414. The districts that the court expressed “concern” over were senate districts 21 and 28, and house districts 21, 36, 37, 40, 41, 57, and 105, which were designated as “Subject Districts” and that failed to “remedy the identified constitutional violation or are otherwise legally unenforceable.” https://www.brennancenter.org/sites/default/files/legal-work/Coving ton_v_NC_Order_10.26.17.pdf. Accessed December 12, 2020. https://www.brennancenter.org/sites/default/files/legal-work/Coving ton_Order_11.01.17.pdf. Accessed December 11, 2020. The “Subject Districts” were House Districts 21, 33, 38, 57, 99, 102, and 107, and Senate Districts 21 and 28. https://law.stanford.edu/directory/nathaniel-persily/. Accessed December 11, 2020. “Legislative Defendants’ Response to Special Master’s Recommended Plan and Report,” 3. https://www.brennancenter.org/sites/default/ files/legal-work/Covington_Legislative-Defendants-Response-to-SpecialMasters-Plan-and-Report.pdf. Accessed December 11, 2020.

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65. Memorandum Opinion and Order, 72, January 19, 2018. https://www. brennancenter.org/sites/default/files/legal-work/Covington_Memora ndum-Opinion-and-Order_01.19.18.pdf. Accessed December 11, 2020. 66. The U.S. Supreme Court did take exception to the districts in Wake and Mecklenburg counties.

CHAPTER 6

The Federal and State Battle Over Partisan Redistricting

Abstract In the second half of the 2010-decade, legal challenges regarding partisan gerrymandering to North Carolina’s redistricting efforts came to a culmination in both federal and state court rulings. Following legislative redistricting that focused purely on partisan dynamics, three important North Carolina court cases would define the concept of partisan gerrymandering by federal court rulings, as well as by a North Carolina court ruling that signaled a new approach to confronting partisan gerrymandering. Keywords Redistricting · North Carolina · Partisan gerrymandering · Rucho v. Common Cause · State constitutional law

The second half of the 2010s saw the legal challenges shift from race to partisanship. In North Carolina, race and politics have always had a close relationship, leading some observers to note the strong presence of racially-polarized voting patterns. According to exit polls, Black voters are loyal Democratic voters. Between 1992 and 2020 in North Carolina, Black voters cast between 85 and 96 percent of their votes for Democratic presidential candidates. On the other hand, North Carolina White voters gave Democratic presidential candidates between 27 and 35 percent.1 © The Author(s), under exclusive license to Springer Nature Switzerland AG 2021 J. M. Bitzer, Redistricting and Gerrymandering in North Carolina, Palgrave Studies in US Elections, https://doi.org/10.1007/978-3-030-80747-4_6

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This polarization based on race isn’t the only division; North Carolinians’ partisan loyalties demonstrate the divide as well. From the 1970s to the early 2000s, North Carolina self-identified Democrats were willing to cast GOP presidential votes, yet by 2008, party ‘defectors’ had shrunk in size. In 1992, 15 percent of self-identified Democrats voted Republican, yet in 2008, that number dropped to 9 percent. In 2020, cross-over defectors were less than 5 percent for both parties (3 percent of Democrats voted for Republican Donald Trump, while 4 percent of Republicans voted for Democrat Joe Biden). By 2020, North Carolina voters had effectively sorted themselves based on partisanship. Granted, North Carolina split ticket voters still influence competitive elections. In both 2016 and 2020, North Carolina voted for Trump by 3.7 and 1.3 percentage points, while at the same time, voted for Democrat Roy Cooper for governor by 0.2 and 4.5 percent. But the days of massive numbers of North Carolina split ticket voters were gone.2 As North Carolinians politically sorted themselves, they also sorted themselves geographically. While North Carolina appeared intensely competitive state-wide from 2000 to 2020, analyzing the regional dimensions revealed a sorted and polarized partisan development within urban, suburban, and rural counties. In 2000s presidential election, George W. Bush’s twelve-point margin of victory was fueled by 50 percent or greater performances in all three regions: 52 percent in urban counties, 64 percent in suburban counties, and 56 percent in rural counties. Twenty years later, the state’s divide mirrored national dynamics. In his 1.3 percent win in 2020, Donald Trump lost urban counties decisively, garnering only 37 percent, while securing 60 percent of the suburban vote and 57 percent of the rural vote. This sorting, of both voter loyalty and geography, contributed to the state’s partisan gerrymandering intensity, leading to a U.S. Supreme Court opinion that closed the door to federal relief, but opened it at the state level.

Round Two of Congressional Redistricting: Partisanship Rules Following the Harris v McCrory decision in February 2016, the legislature had two weeks to redraw the maps. Republican legislative leaders sought a stay of the three-judge panel’s order with the U.S. Supreme Court, while commencing public hearings and the redrawing process. Again, as co-chairs, Lewis and Rucho oversaw the redistricting, but this

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time they took an obvious turn. With race no longer a redistricting factor, partisanship served as the redistricting’s guiding principle. Lewis made it crystal clear: “I propose that we draw the maps to give a partisan advantage to 10 Republicans and three Democrats, because I do not believe it’s possible to draw a map with 11 Republicans and two Democrats.”3 Lewis also remarked that “I acknowledge freely that this would be a political gerrymander, which is not against the law,” at the time.4 With a goal of a 10-3 Republican congressional delegation, Republicans held that the “only data other than population data to be used to construct congressional districts shall be election results in statewide contests since January 1, 2008, not including the last two presidential contests. Data identifying the race of individuals or voters shall not be used….” Along with other traditional criteria, district compactness would be ‘improved’ “to keep more counties and VTDs (voting tabulation districts) whole,” while dividing counties only to achieve population equalization, incumbent consideration, and political impact (with “reasonable efforts … not to divide a county into more than two districts”).5 As a result, several districts saw geographic shifts. The Second District shifted from the surrounding Republican southwestern counties of Wake County to encapsulating in and around Wake to its north, east, and south. The Thirteenth District moved from the Raleigh area westward into Democratic parts of Greensboro, but then stretched west to the surrounding suburban Republican counties of Davidson, Davie, Iredell, and Rowan. A notable example of the partisan focus was the “Asheville appendage.” Historically, liberal Democratic Asheville was in the mountain’s Eleventh District, making previous district configurations competitive. With the 2011 and 2016 maps, Republicans pulled a majority of Asheville into the reliably Republican Tenth District, absorbing those Democrats without sacrificing the Tenth’s GOP leaning, while making the surrounding Eleventh District more Republican. The joint committee adopted the criteria on a party line vote,6 and within three days of introducing the new map, both chambers passed the maps on February 19, 2016, again on party lines votes. The long fought-over Twelfth District collapsed into Mecklenburg County in 2016, and retained that urban county configuration (see Map 6.1). Republicans achieved their electoral goals. In the 2016 elections, ten Republicans and three Democrats were elected to the U.S. House. Analysis of the districts showed that Hillary Clinton won 67 percent of the 2016 presidential vote in the more compact First Congressional District,

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Map 6.1 North Carolina congressional districts, enacted 2016, used 2016– 2018 elections (Source https://www.ncleg.gov/Files/GIS/Plans_Main/Con gress_2016/mapSimple.pdf)

which covered only fourteen counties. Clinton also did well in the Fourth District, which covered the mid-section of Wake County, the bottom of Durham, and all of Orange County. Clinton received 68 percent in the Fourth, the same percentage she got in the Twelfth. In the other ten districts, Republicans had solid, but not necessarily overwhelming, performances. On the low end, the Second and Thirteen gave Trump 53 percent, while at the high end, the Eleventh, Third, and Tenth gave him 60 percent.7 The new districts reflected North Carolina voters’ ‘partisan loyalties.’ Gone were the days of major swaths of voters splitting their tickets. Instead, voters tended to vote straight ticket down the ballot, which made it difficult for Democrats to beat Republicans in those districts. In 2018s Democratic wave election, Democrats secured only 45 percent in the Second and Thirteenth districts. Conversely, the First, Fourth, and Twelfth gave Democratic candidates at least 70 percent of the vote.8 At the end of this round of redistricting, Senate President Pro Tempore Phil Berger (R-Rockingham) declared that the GOP efforts created “a

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fair, legal and compact Congressional map that harmonizes traditional principles,” and that it was “the least gerrymandered and most compact Congressional map that North Carolina has seen in decades.”9 That claim would be tested with another court case, this time for the U.S. Supreme Court to confront partisan gerrymandering. However, the ultimate, and successful, challenge to partisan gerrymandering would come from where the U.S. Supreme Court said it should: state court.

Common Cause v. Rucho Following the second set of congressional maps, the public interest organization Common Cause, along with the North Carolina Democratic Party and other plaintiffs, filed a federal lawsuit against Rucho and other Republican legislators on August 5, 2016. The case was eventually consolidated with another lawsuit, filed by the League of Women Voters, on March 3, 2017. The plaintiffs alleged that the Republican’s second redistricting attempt was an illegal partisan gerrymandering and violated voters’ First Amendment rights “by favoring some voters (e.g., Republican supporters of the party in power) and by burdening or penalizing other voters (e.g., Democratic voters) based on the content of the voters’ political expression or beliefs….”10 By both packing and cracking Democratic voters, the complaint argued that Democratic “votes in favor of Democratic candidates cannot affect the outcome of the general election.”11 Along with violating the Fourteenth Amendment’s Equal Protection Clause, the case contended that partisan gerrymandering violated the Article I, Section 2 of the U.S. Constitution by “allowing the majority party in a state legislature to choose the members of the House of Representatives” instead of the “people of the several states.”12 Finally, the complaint alleged violation of Article I, Section 4 of the U.S. Constitution, the “the Times, Places and Manner” clause of holding U.S. House elections. Citing 1992’s Pope v. Blue, legislative defendants argued that partisan gerrymandering claims made against the 1991 Democratic maps had been dismissed, and that to prove their claims, the plaintiffs would have to demonstrate that they were “shut out of the political process” by the redistricting.13 The court held a four-day trial in October 2017. While plaintiffs presented evidence and expert witness testimony, the legislative defendants attended but did not participate, and gave no indication as to how the case should be resolved.14 During post-trial motions, however,

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the legislative defense team criticized the statistical evidence presented by the plaintiff’s experts, calling it “a smorgasbord of alleged ‘social science’ theories” that failed to answer what the defendants claimed was the core question: “how much politics is too much politics in redistricting?”.15 On January 9, 2018, the three-judge federal panel answered by striking down the 2016 congressional map as an unconstitutional partisan gerrymandering in Common Cause v. Rucho. Circuit Judge George Wynn used Lewis’s statement to demonstrate partisan intent: “Rather than seeking to advance any democratic or constitutional interest, the state legislator responsible for drawing the 2016 Plan said he drew the map to advantage Republican candidates because he ‘think[s] electing Republicans is better than electing Democrats.’”16 Wynn used the U.S. Supreme Court’s definition of partisan gerrymandering: “the drawing of legislative district lines to subordinate adherents of one political party and entrench a rival party in power.”17 In producing the partisan maps, the court noted that Hofeller created an aggregate variable to predict partisan performance for each census block from seven different elections between 2008 and 2014. Hofeller testified that “the underlying political nature of the precincts in the state does not change no matter what race you use to analyze it,” and that “individual VTDs tend to carry … the same characteristics through a string of elections.”18 Utilizing computer software that assigned a partisanship variable to counties, precincts, and VTDs, Hofeller sought to keep the 2011 Plan’s “core constituencies” intact, while moving some precincts between districts. Unlike in racial gerrymandering where a state may consider race as a legitimate state interest under certain circumstances, the court found no such legal authority that partisan gerrymandering advanced a legitimate state interest, other than “to subordinate adherents of one political party and entrench a rival party in power.”19 The First Amendment, Wynn noted, gave plaintiffs the right to challenge partisan gerrymandering, due to the potential ‘dilution’ of a citizen’s vote and infringing upon the right of association with likeminded voters. Finally, under Article I of the U.S. Constitution, malapportionment challenges allowed citizens to challenge state legislative plans, no matter where they resided, and that partisan gerrymandering claims were akin to malapportionment claims.20 Wynn then addressed one of the key justiciability questions: whether partisan gerrymandering represented a “political question” best left to the elected branches to resolve, rather than judicial resolution. Wynn reviewed

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the political question test from 1962’s Baker v. Carr case that dealt with one-person, one-vote in state legislative districting. He also referenced 1986’s Davis v. Bandemer case that applied the Baker framework to partisan gerrymandering claims. Two other cases gave courts the green light to weigh in on partisan gerrymandering. Vieth v. Juelirer, a 2004 Pennsylvania case, was a 5-4 decision where four U.S. Supreme Court justices acknowledged that no judicial standard exists to help the courts manage and resolve partisan gerrymandering cases, but a fifth vote, from Anthony Kennedy, kept hope alive that some kind of manageable judicial standard could be developed, and thus such cases were justiciable. In 2006’s League of United Latin American Citizens v. Perry, the Supreme Court declined to revisit Bandemer’s decision that partisan gerrymandering claims are justiciable.21 Therefore, Wynn wrote that the alleged partisan gerrymandering presented “a justiciable claim or controversy,” and added, “For good reason.”22 Wynn held partisan gerrymandering incompatible with democratic principles, because it allowed elected officials to choose their voters, and not vice versa. Partisan gerrymandering structurally insulates elected officials from “having to respond to the popular will, and instead renders them response to state legislatures or political factions thereof.” What partisan gerrymandering accomplished was antithetical to the Framers’ concerns about state legislatures giving more power, as founding framer Rufus King noted, to “men subservient to their own views as contrasted to the general interest; and that they might even devise modes of election that would be subversive of the end in view.”23 Partisan gerrymandering altered the relationship between the state and its citizens by “undermining the right to vote—the principle vehicle through which the public secures other rights and prevents government overreach….”24 By entrenching a group in power, further restrictions on other rights could be easily accomplished. Wynn pointed to Democratic control of state legislatures in the late 1800s, which gerrymandered U.S. House districts. These partisan districts elected Democrats, who restricted the Fifteenth Amendment’s enforcement and allowed Jim Crow segregation in the South.25 In discussing whether there was a judicially manageable standard for resolving partisan gerrymandering claims, Wynn noted the plaintiffs had empirical analysis from recognized experts. Along with computer simulations that designed “thousands of computer-generated districting plans” that adhered to convention redistricting criteria, plaintiffs presented “partisan symmetry” analysis to show that “supporters of non-Republican

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candidates will likely have a significantly more difficult time translating their votes into representation.”26 Just as Hofeller utilized modern technology to analyze political behavior and track district partisanship, plaintiffs presented their own analysis to demonstrate how the district’s partisanship influenced electoral outcomes. After refuting the defendants’ arguments, Wynn turned to three constitutional reasons for striking down partisan gerrymandering. For denial of equal protection, Wynn noted that it wasn’t just the process of how Lewis and Rucho oversaw the partisan development, but also the ‘after the fact’ analysis that supported the plaintiff’s arguments of equal protection violation. Wynn cited statistical analysis conducted by Duke University’s Dr. Jonathan Mattingly, who used a computer simulation program to analyze the partisan dynamics of over 24,000 variations of the maps. In doing so, Mattingly found that a 10-3 Republican delegation occurred in only one hundred and sixty-two of the 24,000 simulations, or 0.7 percent. “Put differently, using both actual 2012 or 2016 votes, more than 99 percent of the 24,518 simulated maps produced fewer Republican seats than the 2016 Plan.” The 2016 map demonstrated an “S-shaped” line when Mattingly connected the median Democratic vote shares in each district, thus representing the fact that more Democrats were packed into three districts with fairly safe Republican majorities in the other eight GOP districts.27 Noting that when he slightly moved the districts’ boundaries, by as little as 10 percent, Mattingly found a much more competitive dynamic. The court also heard analysis from Dr. Jowei Chen, a University of Michigan professor who studied political geography and redistricting. Chen developed a computer algorithm to randomly draw 1000 redistricting plans, and then analyzed how the plans would behave, based on past election results. For North Carolina, Chen developed three random sets of one thousand maps: first using the non-partisan redistricting criteria, the second to avoid incumbent pairing, and the third to match the split counties and incumbent avoidance that the 2016 map produced. Using the same seven elections that Hofeller used and the twenty elections that the committee used, Chen found that none of the three sets of randomly drawn maps would have produced a 10-3 Republican delegation, and thus concluded that the 2016 plan “is an extreme statistical outlier in terms of its partisanship.”28 Wynn turned to the more difficult analysis, the burden of evidence to show a partisan redistricting’s discriminatory effect. To demonstrate that

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‘bias,’ Wynn noted the 2016 election results, where Democrats received an average of nearly 68 percent of the vote in the three districts that favored them, while Republicans in the ten other districts received 60 percent. “Democratic candidates,” Wynn wrote, “consistently won by larger margins than Republican candidates.”29 Wynn then referenced various measurements designed to empirically test the districts’ partisanship, including the efficiency gap, partisan bias, and the mean-median difference. In evaluating the districts by efficiency gap, which addresses how many votes of one party are “wasted” by either packing or cracking and are in excess of what the winner needs for a district, one expert found that the 2016 plan created “a systematic advantage for Republican candidates.” One issue that the defendants raised with this analysis is that, as Supreme Court Justice Anthony Kennedy observed, “there is no constitutional requirement of proportional representation.”30 The court acknowledged that, but noted that the test “is not premised on strict proportional representation, but rather on the notion that the magnitude of the winner’s bonus should be the same for both parties.”31 The partisan bias analysis focused on if a party would to win 50 percent of the vote, would it win more than 50 percent of the seats, and inversely, less than 50 percent of the seats. The 2016 Plan had a pro-Republican partisan bias of 37 percent, which the expert described as “extreme—of quite literally historic magnitude, not just relative to North Carolina’s history, but in the United States.” The mean-median difference analyzed when the two measurements “diverge significantly, the distribution of district-level vote shares is skewed in favor of one party and against its opponent.”32 The average mean-median difference from 1972 to 2016 was 1 percent, while 2016 was over 5 percent. Combining these analyses with the map simulations, the 2016 partisan congressional map both subordinated Democratic votes and entrenched Republican candidates in power, thus fulfilling the two-prong test and violating the Fourteenth Amendment’s Equal Protection Clause. The court then reviewed the First Amendment’s prohibition against “viewpoint discrimination,” or when laws disfavor a particular group or class of speakers, or burdens and penalizes individuals for engaging in protected speech. The court acknowledge that the partisan maps demoralized voters and created the sense that “my vote doesn’t count.” The evidence demonstrated “the effect of chilling the political speech and associational rights of individuals and entities that support nonRepublican candidates” and that the “electoral speech and power of voters who support non-Republican candidates” were diluted.33

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Finally, Wynn addressed the constitutional powers to challenge partisan gerrymandering. Article I, Section 2 states that the U.S. House “shall be composed of Members chosen … by the People,” while Section 4, or the Election Clause, provides that “the Times, Places and Manner of holding Elections for (U.S. Representatives) shall be prescribed in each state by the Legislature thereof….” The court ruled that the partisan gerrymandering of congressional districts exceeded that delegated authority. Drawing on First Amendment principles, Wynn held that Article I “did not empower state legislatures to disfavor the interests of supports of a particular candidate or party in drawing congressional districts” by entrenching and ensuring one party with perpetual electoral victories.34 Ultimately, “the People” should have direct influence on the U.S. House of Representatives based on the “true principle of a republic is, that the people should choose whom they please to govern them.”35 Partisan redistricting distorts this principle by ensuring that federal representatives are beholden to a controlling faction of state legislators based on party affiliation, Wynn noted, while disfavoring the other party and dictating the electoral outcomes. By striking down the partisan redistricting plan on the basis of the Fourteenth Amendment’s equal protection clause, the First Amendment, and Article I’s Qualifications and Election clauses, the court’s majority expressed hesitancy in allowing the legislature a ‘second bite at the apple’ with another redraw. However, the court recognized a likely appeal to the U.S. Supreme Court, which lacked a “legal standard for adjudicating partisan gerrymandering claims.”36 The court admonished the legislature that North Carolina’s voters “have been deprived of a constitutional congressional districting plan for the better part of the decade,” and gave the legislature until January 24, 2018 to enact a third plan. As a further prompt, the court announced its intention to appoint a Special Master to prepare a districting plan, in the event the legislature failed to do so or could not devise a proper plan before the 2018 election cycle began. Two days after the ruling was announced, Republicans sought an emergency stay from the U.S. Supreme Court,37 which granted the order on January 18, 2018.38 At the same time, a partisan gerrymandering case out of Wisconsin, Gill v. Whitford, was being heard. Like in North Carolina, Republicans won the Wisconsin legislature in 2010 and enacted a redistricting plan that put Democrats at a political disadvantage. Despite Wisconsin Democrats securing popular vote majorities in 2012 and 2014, Republicans won sixty of the ninety-nine seats in the

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lower chamber. In November 2016, a three-judge panel declared the state house plan an unconstitutional partisan gerrymandering, violating the Fourteenth Amendment’s equal protection clause and the First Amendment’s freedom of association. In June 2017, the U.S. Supreme Court remanded it back to determine what evidence was needed to establish standing and thus allege a partisan vote dilution case.39 At that time, the high court did not consider the issue of whether partisan gerrymandering was justiciable, and if so, what the legal standards would be for determining an unconstitutional partisan gerrymandering. Following the Wisconsin remand, the U.S. Supreme Court vacated the North Carolina case on June 25, 2018 and asked the three-judge panel to reconsider its decision in light of Gill ’s standing issue. Following arguments by both sides, the federal district court in Raleigh once again issued an opinion, on August 27, 2018, that struck down the 2016 Plan as a partisan gerrymander.40 In its 320-page opinion, again written by Wynn, the court reviewed the background to the 2016 map drawing, along with 90 pages devoted to the jurisdictional arguments and the Gill standing issue. Finding that at least one plaintiff was a registered voter in the thirteen congressional districts, and that each plaintiff introduced evidence of vote dilution, the court again ruled the 2016 maps a partisan gerrymandering, based on violations of Article I’s Qualifications and Elections clauses, the First Amendment, and the Fourteenth Amendment’s Equal Protection Clause.41 With the pending 2018 mid-term elections, the court acknowledged that time was of the essence for a remedy. Instead of providing a deadline for a third congressional map, the court indicated “we will not consider a remedial districting plan” after September 17, thus giving the General Assembly three weeks to redraw the map. The court also renewed the possibility of appointing a special master to redraw the maps.42 Republicans sought an appeal and a stay, with the court granting the stay of their order on September 12, 2018.

The Supreme Court Weighs In The U.S. Supreme Court heard oral arguments on March 26, 2019, and in one of their last rulings of that term, issued their opinion on June 27 regarding Rucho v. Common Cause.43 Combined with a case out of Maryland alleging Democrats had engaged in partisan gerrymandering, Chief Justice John Roberts, joined by four conservative members, focused on

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“whether claims of excessive partisanship in districting … (are) properly suited for resolution by the federal courts.” Roberts held that the court had not previously struck down a districting plan as unconstitutional due to partisan gerrymandering, simply due to the fact that the court “has struggled without success over the past several decades to discern judicially manageable standards for deciding” such an issue. “The districting plans at issue here are highly partisan, by any measure,” Roberts noted,44 but in this instance, the court’s majority refused to venture into the ‘political thicket’ of partisan gerrymandering as it was a political question, and therefore out of the federal judiciary’s power to resolve. While he acknowledged the frustration with partisan gerrymandering, Roberts noted that such claims “have proved far more difficult to adjudicate,” especially when the same court, in Hunt v. Cromartie, held that “a jurisdiction may engage in constitutional partisan gerrymandering” and problems with “determining when political gerrymandering has gone too far.”45 By inserting itself into resolving partisan gerrymandering claims, the court noted that it needed standards that were “limited and precise” along with being “clear, manageable, and politically neutral.” Roberts wrote that “the question is one of degree: How to ‘provide a standard for deciding how much partisan dominance is too much.’”46 What challengers oftentimes resort to, Roberts noted, was asking the courts “to make their own political judgement about how much representation particular political parties deserve … and rearrange the challenged districts to achieve that end.” But the courts cannot, in Roberts’ opinion, “apportion political power as a matter of fairness.”47 In fact, how could one define what is political ‘fair,’ the Chief Justice asked. Beyond defining ‘fair,’ the next question becomes “how much is too much”? Both questions involved political dimensions that the federal courts are unable to address. Even with the numerous tests conducted in both the North Carolina and the Maryland cases, Roberts wrote that “none meets the need for a limited and precise standard that is judicially discernible and manage. And none provides a solid grounding for judges to take the extraordinary step of reallocating power and influence between political parties.”48 Citing the three-prong equal protection test constructed in the North Carolina case, Roberts contended that the test would require judges to predict future election outcomes, and “Judges not only have to pick the winner—they have to beat the point spread” in determining the district’s constitutionality.49 Roberts also found fault with the First Amendment

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test, saying “there are no restrictions on speech, association, or any other First Amendment” freedoms in the districting plans. Finally, in regards to the Election Clause test, Roberts was blunt: “We are unconvinced by that novel approach.”50 Roberts held that a more suitable argument was more likely grounded in the Guarantee Clause of Article IV; however, the Supreme Court had held a Guarantee Clause “does not provide the basis for a justiciable claim.”51 Ultimately, federal courts “have no license to reallocate political power between the two major parties, with no plausible grant of authority in the Constitution, and no legal standards to limit and direct their decisions.” However, Roberts made clear that the majority’s opinion “does not condone excessive partisan gerrymandering,” and that other avenues offer reprieve’s effects. State actions, such as constitutional amendments, the creation of a ‘state demographer’ to draw district maps, and the use of independent commissions, could address the controversy. Additionally, Congress itself could take up the cause by passing legislation through the Elections Clause of Article I.52 Only through those venues, and not through the federal courts, could partisan gerrymandering be addressed, the court’s majority held. The four liberal members attacked the majority’s opinion through Justice Elena Kagan’s dissent. Kagan wrote that the majority abdicated its judicial responsibility for dealing with an issue that “deprived citizens of the most fundamental of their constitutional rights: the rights to participate equally in the political process, to join with others to advance political beliefs, and to choose their political representatives.”53 Characterizing the majority as “tragically wrong,” Kagan contended that Roberts paid “little attention to the constitutional harms” at the core of partisan gerrymandering.54 Before reviewing the procedures of both North Carolina and Maryland (which she labeled as “grisly”55 tales), Kagan bitingly asked, “Is this how American democracy is supposed to work?”.56 Kagan wrote that “free and fair and periodic elections” are key to a democratic republic, and yet “partisan gerrymandering can make (elections) meaningless”, amounting to “rigging elections.”57 Kagan took Roberts’ opinion to task for acknowledging the core premise of the Arizona State Legislative case: “the majority concedes (really, how could it not?) that gerrymandering is ‘incompatible with democratic principles.’”58 And with data and technological advances at hand, Kagan argued that future advances may only exacerbate the issue, leading her to wonder if at “someplace along this road, ‘we the people’ become sovereign

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no longer.’”59 Beyond democracy’s subversion, Kagan contended that constitutional rights were being violated, most notably the Fourteenth Amendment’s Equal Protection Clause and the First Amendment’s protection to political beliefs, speech, and association.60 Kagan acknowledged that the majority properly identified “some dangers everyone should want to avoid,” namely courts deciding who has political power, along with respecting the state legislative process. But she qualified that restraint by noting judicial intervention should happen “in only egregious cases,” and that the court has “largely converged on a standard for adjudicating partisan gerrymandering claims” against both political parties.61 By focusing on ‘vote dilution,’ the courts could focus on intent, effects, and causation that is sufficient to create manageable standards.62 By using technology to its advantage, the courts have the capability, as demonstrated with the thousands of map simulations done in the North Carolina case, to use a “neutral baseline from which to assess whether partisanship has run amok,” and not a judge’s “own view of electoral fairness.”63 Kagan noted that states create their own redistricting criteria, thereby providing the courts with an evaluation of how much “the pursuit of partisan advantage … has distorted the State’s districting decisions.”64 At the end of her dissent, Kagan returned to what she began with: the majority’s failure to recognize the court’s responsibility of providing constitutional protections. The alternatives Roberts suggested—congressional action, independent redistricting commissions, or a separate officer to redistrict—seemed wishful thinking to Kagan. And what of state courts dealing with the issue? Kagan believed that if state courts could derive a judicial standard, why couldn’t the U.S. Supreme Court? Kagan’s closing comments gave a sense of resignation, of what the court might have done in tackling the fact that “gerrymandering is, as so many Justices have emphasized before, anti-democratic in the most profound sense.”65 Kagan also took the rare, but symbolically important, opportunity to summarize her dissent by reading it from the bench the day the opinion was announced. As she stated her three colleagues’ names who joined her dissent, observers noted that Kagan’s voice wavered as she delivered the final lines: The practices challenged in these cases imperil our system of government. Part of the court’s role in that system is to defend its foundations. None is more important than free and fair elections. With respect, with deep sadness … I dissent.66

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State Action on Partisan Gerrymandering and State Legislative Districts With the Common Cause v. Rucho decision pending appeal to the U.S. Supreme Court, a fifth lawsuit challenging the redrawn state legislative maps was filed on November 13, 2018, this time in North Carolina superior court. In Common Cause v. Lewis , the public interest organization, again with the NC Democratic Party and a group of voters, challenged the state house and senate maps created following the Covington decision. The General Assembly redrew the state legislative maps, with Hofeller employed to draw the districts utilizing partisanship. Like with the second redraw of the congressional maps, the committees adopted criterion that included election returns for state legislative districts.67 When asked by a Democratic senator what the committee would do with the political data, Lewis responded “as evidence to how, perhaps, votes have been cast in the past.” He went on to add that “the consideration of political data in terms of election results is an established districting criteria, and it’s one that I propose that this committee use in drawing the map.”68 Lewis noted that the criterion of ‘communities of interest’ would not be used because “‘municipalities are defined and understood’ but the Committee couldn’t ‘agree’ on what a community of interest was beyond that.”69 The committees adopted the criteria, including the political data requirement, again along party line votes. On August 11, 2017, Lewis and Sen. Ralph Hise notified Hofeller of the criterion and to begin redrawing. Lewis later testified that it was primarily his work with Hofeller, though Republican Representative Nelson Dollar of Wake County, were the only individuals who had “seen (the proposed maps) prior to its public publication.”70 However, at the trial regarding partisan gerrymandering, Hofeller’s files indicated that he had been working on the maps several months prior, and had drafted nearly-completed maps by June 24. The maps were held for nearly two months before they were released, with public hearings held on August 22. On August 24 and 25, both maps were approved, mostly on partyline votes.71 Hofeller never saw the reaction or adoption of his final redistricting activities; he died on August 16 from cancer.72 The use of election results in drawing the second legislative maps became apparent during the subsequent trial. With Hofeller’s death in August 2018, his daughter came into possession of her father’s data drives. After a court review and an order limiting the use of the data

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files to the 2017 redistricting project, Hofeller’s methods for creating the partisan-drive districts became publicly known. In testimony by one of the plaintiff’s witnesses, Hofeller constructed Microsoft Excel spreadsheets that formulized the election results for each voting tabulation district, using the Republican vote share of the two-party vote for a variety of elections held between 2008 and 2014. Hofeller created two other formulas: one for ten elections that the committee announced (but Hofeller never used) and an “off-year” to see how the districts would work in midterm election years. With each VTD’s partisanship dynamic, Hofeller built each district based on the VTDs and categorized each district’s potential Republican performance. Hofeller’s records indicated the break-point for Republican advantages came when the Republican vote was at 53 percent or greater, thus creating what would be likely ‘safe’ GOP districts. Analysis of the state house and senate districts showed partisanship’s influence. Based on the 2016 presidential election returns within the districts, 44 out of the 120 house districts had Clinton receiving a higher vote than Trump, while 17 out of the 50 senate districts saw Clinton win. With the likely close relationship that presidential voting had with state legislative level voting, Republicans could have claimed seventysix house and thirty-three senate districts, both at super-majority levels. As noted by the court, the legislature’s own “Stat Packs” showed that “Republicans would be expected to win between” seventy-two to eightytwo house seats and thirty-one to thirty-five senate seats, again enough to override any gubernatorial veto with party-line votes.73 Dr. Chen, the plaintiff’s expert from the congressional district case, noted that the data “show Dr. Hofeller’s specific focus on trying to ‘squeeze out’ as many Republican-leaning districts as he could” in the “largest and mostDemocratic counties, such as Wake, Mecklenburg, Cumberland, Forsyth, and Guilford Counties.”74 Finally, the files indicated that Hofeller was careful not to double-bunk, or place into the same district, Republican incumbents, but no files showed such an effort to protect Democratic incumbents from being paired. Hofeller used the program “Maptitude,” a geographic information system software for data analysis. Dr. Christopher Cooper, a Western Carolina University political science professor who served as a plaintiff’s expert witness, testified that Hofeller’s Maptitude files utilized partisanship data to “deliberately pack and crack Democratic voters into particular districts with precision.”75 In fact, Hofeller color-coded the VTDs for Republican, Democratic, and competitive status, and then created the

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districts. Legislative defendants did not offer any additional files to refute the expert’s testimony of Hofeller’s records, and “offered no plausible alternative explanation” of Hofeller’s intent to draw the districts as he did, the court noted.76 Four experts then offered their assessments of the districts and partisanship’s impact. Dr. Chen testified that, like in the federal congressional districts case, partisanship was the driving factor in the map’s creation. One thousand computer-made simulations of the maps failed to produce a house or senate map with so few Democratic districts, Chen testified, leading him to conclude “with over 99% statistical certainty that the current House plan is an extreme partisan outlier.”77 Dr. Mattingly again ran a random simulation of maps (“greater than the number of atoms in the known universe,” the court observed) as a baseline against the partisan maps.78 Mattingly found that the 2017 Republican-drawn maps were “extreme partisan outliers” with “extreme partisan bias” that would be consistent and hold across both “possible voting patterns and election results.”79 In fact, the maps created “firewalls” that would protect a GOP supermajority, even in Democratically-favored election years. Dr. Wesley Pegden, a Carnegie Mellon University mathematical sciences professor, testified in the area of probability. Having served on the Pennsylvania Redistricting Reform Commission, Pegden’s research dealt with minor alterations to district maps and what kind of impact, if any, those randomized changes would have. After the billions of computations, Pegden concluded that “the enacted map is more carefully drafted for Republican partisan advantages than at least 99.999% of all possible maps of North Carolina” that his analysis could conduct.80 Dr. Cooper testified to the state’s overall political history and current-day dynamics, and “[d]espite winning close to or more than 50% of the statewide vote in General Assembly elections since 2012, Democrats have ‘never approached’ a roughly corresponding percentage of seats, a sign of ‘gross disproportionality.’”81 Each expert analyzed 15 county/house district and 7 county/senate district configurations as to how packed and cracked Democratic-voting VTDs were designed while ensuring wholeness and distribution of GOP-voting VTDs. For rebuttal, the legislative defendants called a series of witnesses.82 Even though all the defendant’s witnesses attempted to call into question the plaintiff’s expert testimony and analysis, the court found the defendant experts’ testimony unpersuasive and, at times, error-prone and contradictory.83

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On September 3, 2019, the three-judge state panel issued a 350-page ruling. They ruled that the partisan maps violated Article I of the North Carolina state constitution in three ways: Section 10’s “free elections”, Section 19’s “equal protection of the laws”, and Section 14’s freedoms of speech and assembly.84 Written by state superior court judge Paul C. Ridgeway, the court noted that partisan gerrymandering, as defined in the 2015 federal lawsuit of Arizona State Legislature v. Arizona Independent Redistricting Commission, violated “the core principle of republican government … that the voters should choose their representatives, not the other way around.”85 Dating back to the state’s original declaration of rights in 1776, the court recognized that the ‘free elections’ clause had not be “extensively interpreted.” However, previous state supreme court rulings had enshrined the principle that “fair and honest elections are to prevail in this state.”86 Based on the key word of “shall,” the court held the free elections clause denoted a fundamental right “that elections must be conducted freely and honestly to ascertain, fairly and truthfully, the will of the people.” The partisan maps diluted citizens’ votes, however, and extreme partisanship “does not fairly and truthfully ascertain the will of the people. … Rather, it is the will of the map drawers that prevails.”87 Because Republican legislators had “placed their thumbs heavily on the scale to favor” their own party, the harm extended beyond just free elections to deny Democratic voters the opportunity to seek “redress of their grievances or amend the laws” because of the districts’ electoral biases.88 The partisan maps also violated the state constitution’s equal protection of the laws guarantee. Utilizing the Stephenson decision, the court held that state’s equal protection guarantee extended beyond the federal government’s version to ensure “the fundamental right of each North Carolinian to substantially equal voting power,” applied to single-member versus multi-member districts.89 The court found that in intent, effects, and causation (the three-part test for equal protection claims adopted from the federal standard), the evidence demonstrated the partisan maps’ denial of equal protection of the law. In fact, the court cited the federal Rucho case for substantiation of its findings. The court noted that in this day and age of polarization, “the reality is that legislators are far more likely to represent the interests and policy preferences of voters of the same party,” thereby denying the chance for voters of the opposite party, but within the legislator’s own district, from advancing their policy goals.90 Finally, the state constitution’s freedom of speech and assembly rendered the partisan maps constitutionally deficient. Through political

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participation, such as voting, contributing to a candidate’s campaign, and organizing together, the state’s first amendment guarantees the protection of political expression and association. By making Democratic votes “less effective” through gerrymandering, Republicans sought to target those voters “for ‘disfavored treatment’” by identifying the VTD voter histories, focusing on those which were Democratically-aligned, and then packing or cracking them, in comparison to Republican VTDs. Even though Democrats could still cast their ballot, their expression, and their collective association, of the vote was rendered “less effective” by the partisan gerrymandering Republicans created through the maps.91 In fact, the court held that the partisan maps not only prevented Democratic votes from being effective, it retaliated against those same voters by “intentionally targeted Democratic voters based on their voting histories.”92 Following the court’s dismissal of the legislative defendant’s arguments that overturning the plan would itself “violate the ‘fundamental right to vote’” under the U.S. Constitution’s Fourteenth Amendment, the court ordered the legislative districts for fourteen county groupings in the house (impacting fifty-six districts) and seven county groups in the senate (impacting twenty-one districts) to be redrawn within two weeks. The court was explicit in saying “Partisan considerations and election results data shall not be used” and enumerated the criteria for the redistricting: equal population; contiguity; county groupings and traversals; compactness; fewer split precincts; considering municipal boundaries; and not pairing incumbents within the same district. In addition, the court ordered the legislature to comply with the Voting Rights Act and any federal requirements, conduct the redistricting within “full public view,” and avoid using the invalidated 2017 districts’ cores. The court retained the authority to appoint a “Referee” to review the legislature’s maps or develop the maps if the legislature failed to do so.93

The General Assembly Redraws for the Third Time---With a Lottery Machine The legislature began its third redistricting process in September 2019. They didn’t begin with a “blank slate” regarding the districts to be redrawn, but instead with maps created by Dr. Chen’s simulations. Using Chen’s data and focusing on compactness and reductions of municipal

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and VTD precinct splits, both chambers selected the top five countygrouping configurations. The legislature then used a N.C. State Lottery Commission machine to randomly select one of the maps to begin each county grouping. In addition, the full actions of the process, including the screens where the maps were being drawn, were livestreamed via YouTube. During the process, the committees made “small adjustments” to the configurations, mainly to “unpair incumbents drawn together in the randomly drawn base map.”94 In trying to make his own district more compact, Republican state senator Rick Horner described the process as “it’s like a video game,” with a staffer responding “It is sort of like a video game, but with much larger consequences.”95 Democrats agreed that the process was transparent and open. Democratic state senators Dan Blue of Wake County said “I believe that we’ve come up with the best we could come up with” within the court’s requirements, while Jeff Jackson of Mecklenburg County said he was “duty bound to acknowledge that these are the fairest maps and this was the fairest process to occur in North Carolina in my lifetime.”96 In analyzing the third version of state legislative maps, Republicans still held an edge in terms of potential GOP districts even with the modified districts. Using Trump’s district performance as an indicator, fifty-eight state house districts would have seen Trump’s vote at 55 percent or greater, with another eleven districts between 50 and 54 percent for Trump. In the state senate, twenty-one districts saw Trump’s vote performance over 55 percent, with another six leaning Republican (Trump’s vote percentage would have been between 50 and 54 percent).97 Following submission of the third version, and despite objections from the plaintiffs and a subsequent appeal to the state supreme court, the three-judge panel approved the 2019 state legislative maps for the 2020 election cycle. In the November 2020 election, Republicans added a net total of four seats to their house majority, while losing one senate seat.98

State Action on Partisan Gerrymandering and Congressional Districts Following the court’s ruling on the state legislative districts’ partisan gerrymandering, the sixth case of the 2010s was filed against the congressional district map, also alleging partisan gerrymandering. Filed on September 27, 2019, Harris v. Lewis proved to be the shortest case of the

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decade. Following the same legal arguments that proved successful in the state legislative district case (violations of the North Carolina state constitution under the free election clause, equal protection, and the speech and assembly clauses), the General Assembly took it upon itself to redraw the congressional districts, and approved them on November 15. The court accepted the redrawn congressional map on December 2 for the 2020 election cycle. The third congressional map (see Map 6.2) of the decade brought another round of significant movement in not just the shape of the districts, but their political outcomes. Two of the most significant shifts was the move of the Second completely into Wake County (Raleigh), while the Sixth was relocated into all of Guilford County (Greensboro) and parts of Forsyth County (Winston-Salem) (compared Maps 6.1 and 6.2). Formerly safe Republican districts, these moves flipped these two district to being likely Democratic seats, since the 2016 presidential results within both indicated a likely Clinton win (60 percent in the new Second

Map 6.2 North Carolina congressional districts, enacted 2019, used 2020 elections (Source https://www.ncleg.gov/Files/GIS/Plans_Main/Congress_2019/ HB1029%203rd%20Edition%20-%2011x17_Map.pdf)

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and 59 percent in the new Sixth). Both districts’ Republican incumbents, George Holding and Mark Walker, announced their retirements following the map’s approval, rather than run in the new districts. The First District became slightly more compact, while the Fourth District stretched around the Second. In addition, the Fifth was moved westward to abut the Eleventh, which saw Asheville returned to its historic mountain district. The Tenth and Thirteen districts were drawn to surround the urban Sixth, while the Eighth and Ninth districts were elongated. The Seventh and Third districts retained most of their shape, though the Third captured a few counties from the Seventh. Even with some districts facing a competitive environment in November 2020,99 the congressional map held in the 2020 election as most believed it would: 8 Republicans to 5 Democrats.100 Even though the U.S. Supreme Court refused to enter the partisan gerrymandering thicket, the nation’s highest court left it to other venues to resolve the frustration of partisanship in redistricting. Following the U.S. Supreme Court’s ruling in Rucho, North Carolina took that initiative and became the first state to have its court system grant a victory to antigerrymandering efforts.101 In doing so, the mantra of “fair and legal” maps may have been accomplished with the 2019 redistricting. And yet, the 2020 elections demonstrated that it wasn’t just redistricting that could influence who won and lost in the districts. The dynamics of a sorted, engaged, and loyal partisan electorate in the 2020 election played a major influence in the Republicans keeping control of both the congressional delegation and the state legislature.

Notes 1. Exit Poll data from 1992 to 2020. 2. Election results available via https://er.ncsbe.gov/. Accessed December 12, 2020. 3. Hise, Ralph, and David Lewis. “We Drew Congressional Maps for Partisan Advantage: That Was the Point.” The Atlantic. March 25, 2019. https://www.theatlantic.com/ideas/archive/2019/ 03/ralph-hise-and-david-lewis-nc-gerrymandering/585619/. Accessed December 12, 2020. 4. Timm, Jane C. “They’re Still Drawing Crazy-Looking Districts: Can’t It Be Stopped?” https://www.nbcnews.com/politics/elections/ they-re-still-drawing-crazy-looking-districts-can-t-it-n803051. Accessed December 12, 2020.

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5. “2016 Contingent Congressional Plan Committee Adopted Criteria.” https://www.ncleg.gov/Files/GIS/ReferenceDocs/2016/CCP16_Ado pted_Criteria.pdf. Accessed December 12, 2020. 6. Common Cause et al. vs. Rucho et al., Complaint Civil Action No. 1: 16-CV-1026, 14. File August 5, 2016. https://www.brennancenter. org/sites/default/files/legal-work/CCvRucho_Complaint_08052016. pdf. Accessed December 12, 2020. 7. District presidential data analysis found at: https://www.dailykos.com/ stories/2013/7/9/1220127/-Daily-Kos-Elections-2012-election-res ults-by-congressional-and-legislative-districts. Accessed December 12, 2020. 8. 11/06/2018 Official General Election Results. https://er.ncsbe. gov/?election_dt=11/06/2018&county_id=0&office=FED&contest=0. Accessed December 12, 2020. 9. “Senate Passes New Congressional Map That Addresses Federal Court’s Concerns.” https://www.philberger.org/senate_passes_new_congressi onal_map_that_addresses_federal_court_s_concerns. Accessed December 12, 2020. 10. Common Cause v. Rucho Complaint, 18–19. 11. Common Cause v. Rucho Complaint, 21. 12. Common Cause v. Rucho Complaint, 24. 13. Common Cause v. Rucho Defendants’ Memorandum in Support of Motion to Dismiss, 6. Filed October 31, 2016. https://www.brennance nter.org/sites/default/files/legal-work/Motion_to_dismiss_commonc ause.pdf. Accessed December 13, 2020. 14. Cause v. Rucho, 279 F. Supp. 3d 587 (M.D.N.C. 2018), 606–607. 15. Cause v. Rucho, 608. 16. Cause v. Rucho, 597. 17. Cause v. Rucho, 635. 18. Cause v. Rucho, 601–602. 19. Quoting Arizona State Legislature v. Arizona Independent Redistricting Commission, 576 U.S. 787 (2015). 20. Cause v. Rucho, 614. 21. Cause v. Rucho, 618–619. 22. Cause v. Rucho, 619. 23. King participated in the Philadelphia Constitutional Convention and served as a Federalist politician. Cause v. Rucho, 620. 24. Cause v. Rucho, 621. 25. Cause v. Rucho, 622. 26. Cause v. Rucho, 629. 27. Cause v. Rucho, 643. 28. Cause v. Rucho, 645–646. 29. Cause v. Rucho, 657.

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30. 31. 32. 33. 34. 35. 36. 37.

38.

39. 40.

41.

42. 43. 44. 45. 46. 47. 48. 49. 50. 51. 52. 53. 54. 55. 56.

LULAC, 548 U.S. at 419. Cause v. Rucho, 662. Cause v. Rucho, 665. Cause v. Rucho, 682–683. Cause v. Rucho, 684–690. Cause v. Rucho, 687. Cause v. Rucho, 690. Emergency Application for Stay Pending Resolution of Direct Appeal to This Court, Rucho v. Common Cause. https://www.brennance nter.org/sites/default/files/legal-work/2018-01-12%20Common%20C ause%20Stay%20Application.PDF. Accessed December 15, 2020. Order 583 U.S. 17A745. https://www.brennancenter.org/sites/def ault/files/legal-work/17-A-745_Supreme_Court_Order_1.18.18.pdf. Accessed December 15, 2020. Dismissal was for lack of standing by Whitford, a Democrat who lived in a heavily Democratic district. Common Cause v. Rucho, 318 F. Supp. 3d 777 (M.D.N.C. 2018). Referred afterwards as “Common Cause v. Rucho,” to differentiate between this second decision and the first decision (noted as “Cause v. Rucho”). Common Cause v. Rucho, 799–800. The court did find that one plaintiff in the Fifth Congressional District failed to provide “sufficient evidence to support their partisan vote dilution under the Equal Protection Clause,” but that other plaintiffs did. See Footnote 2 on page 801. Several plaintiffs and organizations lacked standing under Gill, however, due to making a claim of state-wide injury as opposed to individual district injury. See page 828. Common Cause v. Rucho, 944. Rucho v. Common Cause, 588 U.S. ___ (2019), No. 18-422 (U.S. June 27, 2019). Rucho v. Common Cause, 7. Rucho v. Common Cause, 17–18. Rucho v. Common Cause, 20. Rucho v. Common Cause, 22. Rucho v. Common Cause, 27. Rucho v. Common Cause, 28. Rucho v. Common Cause, 34. Rucho v. Common Cause, 35. Rucho v. Common Cause, 37–38. Rucho v. Common Cause, 40. Rucho v. Common Cause, 41. Rucho v. Common Cause, 44. Rucho v. Common Cause, 42.

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67.

68. 69. 70. 71. 72.

73. 74. 75. 76. 77. 78. 79. 80. 81. 82.

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Rucho v. Common Cause, 46–47. Rucho v. Common Cause, 47. Rucho v. Common Cause, 49–50. Rucho v. Common Cause, 50–51. Rucho v. Common Cause, 53–54. Rucho v. Common Cause, 55–60. Rucho v. Common Cause, 63. Rucho v. Common Cause, 64. Rucho v. Common Cause, 71. Audio of Justice Kagan’s reading her dissent found at: https://slate. com/news-and-politics/2019/10/elena-kagan-audio-partisan-gerrym andering-dissent.html. Accessed December 15, 2020. The election returns data included the 2010 U.S. Senate election, 2012s Presidential, gubernatorial, and Lieutenant Governor elections, the 2014 U.S. Senate election, and the 2016 Presidential, U.S. Senate, gubernatorial, Lieutenant Governor, and state Attorney General elections. Common Cause v. Lewis, 18 CVS 014,001, 16. Common Cause v. Lewis, 94. Common Cause v. Lewis, 19. As noted in the court’s opinion, the one lone House Democrat voting for the plan later switched parties. https://www.nytimes.com/2018/08/21/obituaries/thomas-hofellerrepublican-master-of-political-maps-dies-at-75.html. Accessed December 16, 2020. Ibid., 23. Ibid., 32. Ibid., 34. Ibid., 37. Ibid., 46. Ibid., 68. Ibid., 70. Ibid., 103. Ibid., 106. The defendant’s expert witnesses were Drs. Janet Thornton, of Berkeley Research Group and an economist and applied statistician; Thomas Brunell, a political science professor at the University of Texas at Dallas; M.V. (Trey) Hood, professor of political science at The University of Georgia; Michael Barber, an assistant professor of political science at Brigham Young University in Utah; Douglas Johnson, a fellow at the Rose Institute of State and Local Government at Claremont McKenna College; and Karen Owen, assistant professor of political science at West Georgia University.

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83. The court summarized and evaluated each legislative witness for nearly forty pages within the opinion. Common Cause v. Lewis, 238–277. 84. https://www.ncleg.gov/EnactedLegislation/Constitution/NCConstit ution.html. Accessed December 16, 2020. 85. In the Arizona State Legislature case, the U.S. Supreme Court defined partisan gerrymandering as “the drawing of legislative district lines to subordinate adherents of one political party and entrench a rival party in power.” 135 S. Ct. at 2658. Common Cause v. Lewis, 301. 86. Ibid., 300. 87. Ibid., 302. 88. Ibid., 306. 89. Ibid., 308. 90. Ibid., 314. Emphasis added. 91. Ibid., 323. Emphasis in original. 92. Ibid., 330. 93. Common Cause v. Lewis, 354–356. 94. Memorandum Regarding House and Senate Remedial Maps and Related Materials, 5, dated September 29, 2019. https://www.bre nnancenter.org/sites/default/files/2019-10/2019-09-23-Common% 20Cause%20v.%20Lewis%20LD%20Memorandum%20Regarding%20H ouse%20and%20Senate%20Remedial%20Maps%20and%20Related%20M aterials_0.pdf. Accessed December 16, 2020. 95. Parks, Miles. “A Surprise Vote, Thrown Phone and Partisan ‘Mistrust’ Roil N.C. as Maps Are Redrawn.” NPR. September 16, 2019. https:// www.npr.org/2019/09/16/760177030/a-surprise-vote-thrownphone-and-partisan-mistrust-roil-n-c-as-maps-are-redrawn. Accessed December 31, 2020. 96. Memorandum, 6, September 29, 2019. 97. Analysis conducted by the author and found at: http://www.oldnorths tatepolitics.com/2020/01/analysis-of-north-carolina-state-house.html and http://www.oldnorthstatepolitics.com/2020/02/analysis-of-ncstate-senate.html. Accessed December 31, 2020. 98. Colin Campbell and Lucille Sherman. “Republicans Keep Majority in NC Legislature as Democratic Incumbents Lose.” November 3, 2020. https://www.newsobserver.com/news/politics-government/ election/article246746656.html. Accessed December 16, 2020. 99. The two congressional districts seen as most competitive in 2020 were the Eight and Eleventh, both held by, and retained by, the Republicans. 100. Will Doran and Brian Murphy. “Democrats Could Pick Up Seats in Congress Under Proposed North Carolina Map.” November 14, 2019. https://www.newsobserver.com/news/politics-government/ election/article237362384.html. Accessed December 16, 2020. 101. Parks, ibid.

CHAPTER 7

Conclusion

Abstract Since the 1980s, North Carolina’s redistricting efforts have highlighted the legal battles over racial and partisan gerrymandering claims since the Gingles case. The 1990s saw key U.S. Supreme Court decisions regarding the use of race in the state’s redistricting efforts. The 2000s witnessed the continued controversy over racial dynamics when it comes to redistricting as highlighted by a North Carolina state court case that the U.S. Supreme Court ratified. Finally, North Carolina’s 2010 redistricting efforts brought both racial and partisan dynamics to a legal head at both the federal and state level. Keywords Redistricting · North Carolina · Gerrymandering · Racial gerrymandering · Partisan gerrymandering

For most of the United States, whenever states engage in redistricting activities, it becomes the most partisan effort that the state may encounter during for a ten-year period. From 1980 to 2020, redistricting in North Carolina was not only the most political activity, but the most legally contested one as well. North Carolina served as one of the key battleground states where forty years of litigation and partisan fighting over redistricting has had consequential and lasting impacts. © The Author(s), under exclusive license to Springer Nature Switzerland AG 2021 J. M. Bitzer, Redistricting and Gerrymandering in North Carolina, Palgrave Studies in US Elections, https://doi.org/10.1007/978-3-030-80747-4_7

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In terms of the legal dynamics of North Carolina’s forty-year battle over redistricting, the primary focus centered on what role race plays in redistricting. With the 1965 Voting Rights Act serving as a critical piece of legislation, the goal of increasing minority participation in America’s elections had a profound impact through North Carolina political and legal fights. Yet the fights have always intertwined the political with the legal. Starting with the Gingles case in the 1980s, North Carolina produced a consequential court case over the issue of race and racial gerrymandering in each decade up to 2020, often done as a consequence of political actions and influences. How one should test whether a jurisdiction engaged in denial of participation in elections was at the heart of North Carolina’s Gingles case. The 1982 Voting Rights Act revisions, especially to Section 2, clarified when a jurisdiction had a discriminatory law or practice against minority participation, especially through the nine expressed factors that outlined Congress’ thoughts on determining such violations. Yet it would take the U.S. Supreme Court applying that law in form of a judicial test to make it operable, and the court did so with North Carolina’s redistricting in 1985. When challenging a jurisdiction’s activities, such as the use of multi-member districts and at-large elections, those challenging the activity must demonstrate three specific factors. First, a minority group must be “sufficiently large and geographically compact to constitute a majority in a single-member district.” Second, the minority group must show political cohesiveness in their voting patterns. Third, the “majority votes sufficient as a bloc to enable it … usually to defeat the minority’s preferred candidate.” While the first condition focuses on the notion of redistricting concept of compactness, the second and third conditions refer to the concept of racially-polarized voting. As one witness testified during the Gingles trial, “of the fifty-three elections that had taken place in the affected (North Carolina) districts in recent years, strong racial polarization prevailed fiftyone times.” Meaning, “the preferences of black voters were undermined by most white voters who, while nominally Democrats, in fact refused to consider supporting a black Democrat.”1 If the challengers successfully demonstrated that all three conditions were present, only then will a court examine the government’s action, be it redistricting or some other election law practice, in light of Congress’ factors. This second part has been labeled the “total-of-the-circumstances” test, which allows the courts to take Congress’ various factors and review them against a

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government’s action, such as redistricting. The Gingles test has given the courts a manageable screening for Section 2 claims “in which courts must make politically delicate totality-of-the-circumstances judgment calls about racial fairness in the distribution of political opportunity.”2 While other states, particularly in the South, may have provided a case that the Supreme Court would eventually take to enunciate this test, North Carolina’s political dynamics influenced the legal construct developed. The Black Democrat-White Republican alliance of the time, in combination with a Republican Department of Justice’s policy goal of maximizing Black participation and representation that was a political goal as well, laid the groundwork for such a controversy to work its way into the nation’s jurisprudence regarding race and redistricting. The Gingles test has had a lasting impact on issues and concerns of race in electoral dynamics, but the next decade saw another North Carolina case fundamentally influence the jurisprudence over race and redistricting and its accompanying legal and political dynamics. In Shaw, the nation confronted a stark question: when does race become too much of a factor in government actions and policies? This has been a core question that has haunted the nation since its founding, but within redistricting activities, North Carolina’s Twelfth Congressional District will hold a historic place for launching the debate about race and redistricting. The Twelfth’s unruly design was born out of politics once again. A Republican state representative, seeking to aid his own party, proposed the Charlotte to Durham expansive district. But it was Democrats who designed and ultimately approved the design into their map, albeit under Republican DOJ pressure. If Gingles asked the question, when is race diluted or subsumed by redistricting efforts, what Shaw presented was the question, when is race too dominant in redistricting efforts? While the answer to the second question was left to cases coming out of Georgia and Texas, it was North Carolina’s racial archipelago that launched the judicial review regarding claims of racial gerrymandering. Ultimately, what Shaw helped to build was the answer to what is a state’s ‘compelling interest’ when it comes to fulfilling the expectations of the Voting Rights Act in combination with the equal protection clause of the Fourteenth Amendment. The right to vote and the right not to be racially discriminated when it comes to civic participation continues to drive much of the nation’s jurisprudence. North Carolina’s bizarrely shaped district, while nothing new in the state’s history, proved a foundational building block for the courts

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to begin addressing the balance of electoral opportunity versus denial in regards to race and redistricting. The 2000s witnessed the debate over racial participation expand beyond just the national judiciary to state judicial decisions. Again, North Carolina provided the opportunity to explore how state requirements for redistricting can influence the national dialogue over race in redistricting. With the prominence of North Carolina’s whole county provision to redistricting efforts, the state was once again on track to develop a legal controversy surrounding the role of race in redistricting. State courts are little recognized for their influence over citizens’ lives, but the potential impact of state judicial rulings is far more expansive than most believe.3 The consequential ruling by North Carolina’s Supreme Court regarding how counties may be divided for legislative districts had a significant impact once again on the political dynamics of the state’s redistricting efforts. Following a definitive list of redistricting criteria, the state’s highest court followed with another important ruling regarding when the Gingles test can demonstrate the need for a majority-minority district. In doing so, the Strickland case gave the U.S. Supreme Court another opportunity to further develop the jurisprudence over race and redistricting, courtesy of another North Carolina controversy. The nation’s highest court confirmed North Carolina’s highest court ruling regarding when a state could avert a Section 2 claim of discriminatory practice. This conceivable ‘bright-line’ rule would play at the heart of the next decade’s litigation, but that litigation would expand beyond the question of race to finally incorporate the long-debated role of partisanship in redistricting efforts. For the 2010s, North Carolina’s controversies over redistricting met the pinnacle of legal and political dynamics: the role of race and partisanship in drawing district lines. With the advent of complete Republican legislative control, the partisan arguments literally flipped from previous redistricting battles. It was now Democrats arguing against the use of race in drawing lines, while Republicans held a firm view that they were obligated to draw a bright line in creating majority-minority districts to fulfill the Voting Rights Act. Yet political dimensions always undergirded the battle over race, as discovered in Thomas Hofeller’s work. Even though the state supreme court upheld the Republican’s maps in Dickson, the federal courts weighed in with their own opinion, striking down both the congressional maps in Cooper v. Harris and the state legislative maps in Covington. Having been rebuffed for their “fair and legal” maps drawn

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on race, North Carolina legislative Republicans took what they believed would be the safe approach to redistricting: using partisan to draw the lines. Unlike in the past, when partisanship dominated the map drawing process and was taken for granted, a recent movement against partisan gerrymandering had been growing across the nation. This attempt to reign in partisanship resulted in a bitterly divided U.S. Supreme Court that held the federal judiciary was not the venue to resolve such controversies, but that other approaches were at citizens’ disposal. One such venue was that the states could answer the question when was there too much politics in redistricting. Using North Carolina’s constitution, a three-judge panel believed they found the answers. By the penultimate year of the 2010 decade, North Carolina finally had a set of maps, both congressional and state legislative, to determine who would control the next round of redistricting. As this study concludes at the start of 2021, it is anybody’s guess what the political and legal nature of this next round of North Carolina redistricting will hold. With a fourteenth congressional seat in 2021 added to the state’s delegation, the political dynamics will again be as intense as ever. Following the new state legislative maps in 2019, the 2020 election saw Republicans continued their control of both legislative chambers in the state’s General Assembly, thereby directing the 2021 redistricting process. In a December 2020 video interview with the Raleigh News & Observer, Republican state senate president pro tempore Phil Berger acknowledged that the 2021 redistricting efforts would be greatly influence by past legal judgments: “It’s clear the United States Supreme Court does not want racial criteria taken into account. It appears that political criteria is..is..is..is questionable as to whether or not, and to what extent, it can be taken into account.”4 If the past forty years have given any indication of what is acceptable or not in North Carolina redistricting efforts, it is likely that the legal and political dynamics will generate more controversies and continue to demark the battlelines for the Tar Heel state.

Notes 1. Luebke, 152. Emphasis in original. 2. Elmendorf, Christopher S., Kevin M. Quinn, and Marisa A. Abrajano. 2016. “Racially Polarized Voting.” The University of Chicago Law Review. 83: 587–692.

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3. Hall, Melinda Gann. 2018. “State Courts: Politics and the Judicial Process.” In Politics in the American States: A Comparative Analysis, ed. by Virginia Gray, Russell L. Hanson, and Thad Kousser. 11th Ed. Thousand Oaks, CA: Sage/CQ Press, 278. 4. “Berger discusses the challenges of redistricting for the upcoming 2021 legislative interview during an interview on Tuesday, November 24, 2020 in Eden, N.C. by Robert Willett.” https://www.newsobserver.com/news/ politics-government/election/article246746656.html. Accessed December 16, 2020.

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Cases Cited Allen v. State Board of Elections, 393 U.S. 544 (1969). Arizona State Legislature v. Arizona Independent Redistricting Committee, 576 U.S. 787 (2015). Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252 (1977). Baker v. Carr, 369 U.S. 186 (1962). Bartlett v. Strickland, 556 U.S. 1 (2009). Cause v. Rucho, 279 F. Supp. 3d 587 (M.D.N.C. 2018). Cavanagh v. Brock, 577 F. Supp. 176 (E.D.N.C. 1983). Common Cause v. Lewis, 834 S.E. 2d 425 (N.C. 2019). Common Cause v. Rucho, 318 F. Supp. 3d 777 (M.D.N.C. 2018). Covington v. North Carolina, 316 F.R.D. 117 (M.D.N.C. 2016). Covington v. North Carolina, 283 F. Supp. 3d 410 (M.D.N.C. 2018). Cromartie v. Hunt, 133 F. Supp. 2d 407 (E.D.N.C. 2000). Davis v. Bandemer, 478 U.S. 109 (1986). Dickson v. Rucho, 367 N.C. 542 (2014). Drum v. Seawell, 249 F. Supp. 877 (M.D.N.C. 1965). Drum v. Seawell, 250 F. Supp. 922 (M.D.N.C. 1966). Easley v. Cromartie 532 U.S. 234 (2001). Gingles v. Edmisten, 590 F. Supp. 345 (E.D.N.C. 1984). Gray v. Sanders, 372 U.S. 368 (1963). Harris v. McCrory, 159 F. Supp. 3d 600 (2016). Hunt v. Cromartie, 526 U.S. 541 (1999). Kirkpatrick v. Presiler, 394 U.S. 526 (1969). League of United Latin American Citizens v. Perry, 548 U.S. 399 (2006). Mahan v. Howell, 410 U.S. 315 (1973). Miller v. Johnson, 515 U.S. 900 (1995). Mobile v. Bolden, 446 U.S. 55 (1980). Pender County v. Bartlett, 649 S.E. 2nd 364 (N.C. 2007). Pope v. Blue, 809 F. Supp. 392 (W.D.N.C. 1992). Reynolds v. Sims, 377 U.S. 533 (1964).

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Index

A African American, 3, 16, 24, 35, 50–52, 58, 78, 83, 87, 97, 98, 102, 104, 106, 107 Alabama, 20, 23, 102, 108 Selma, 23 Alabama Legislative Black Caucus v. Alabama, 102, 109 Alaskan native, 25 American Civil Liberties Union (ACLU), 53 apportionment, 6, 19, 21, 22, 24, 28, 30, 31, 37, 41, 85 apportionment act 1842, 24 1872, 24 1880, 24 1900, 24 1929 permanent, 24 Arizona State Legislature v. Arizona Independent Redistricting Commission, 134 Asheville, 119, 138

Atlanta, 20, 64 Attorney General. See U.S. Attorney General Augusta, 64

B Baker v. Carr, 18, 19, 27, 123 Balance, Frank, 83 Balmer, David, 50, 53–55 Barber, Michael, 141 Bartlett v. Strickland, 89, 92, 97, 146 Beaufort County, 83 Bell, J. Spencer, 27 Berger, Phil, 120, 147 Black, Hugo, 20 Black Second, 16 Bladen County, 30 Blue, Dan, 52, 57, 105, 136 Brennan, William, 19, 33, 34, 40, 41 Breyer, Stephen, 79, 80, 102 Broyhill, James, 31 Brunell, Thomas, 141

© The Editor(s) (if applicable) and The Author(s), under exclusive license to Springer Nature Switzerland AG 2021 J. M. Bitzer, Redistricting and Gerrymandering in North Carolina, Palgrave Studies in US Elections, https://doi.org/10.1007/978-3-030-80747-4

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156

INDEX

Burr, Richard, 76, 96 Bush, George H.W., 51 Bush, George W., 76, 118 Bush v. Vera, 66

C Caldwell County, 30 Cape Fear River, 30 Charlotte, 36, 50, 55, 68, 78, 83, 145 Chen, Jowei, 124, 132, 133, 135 City of Mobile v. Bolden, 38 Civil War, 16 Clayton, Eva, 57, 62, 83 Clinton, Bill, 79 Clinton, Hillary, 119, 132, 137 coalition district, 88, 108 Cohen, Gerry, 77, 78, 80 Colegrove v. Green, 18 Coleman, Carolyn, 50 Columbus County, 57 Common Cause v. Lewis , 96, 131 Common Cause v. Rucho, 96, 122, 131 communities of interest, 7, 30, 51, 59, 86, 131 compact, 6, 21, 28, 31, 40, 49, 51, 67, 68, 70, 78, 86, 87, 97, 106, 108, 119, 121, 136, 138, 144 compactness, 8, 24, 28, 30, 31, 58, 59, 63, 64, 66, 69, 78, 84, 104–106, 109, 110, 119, 135, 144 competitiveness, 8 Congress, 16, 18, 22–25, 38, 56, 58, 65, 85, 101, 129, 144 contiguity, 6, 30–32, 52, 56, 63, 64, 69, 78, 84, 104, 110, 135 contiguous, 6, 10, 21, 24, 28, 49, 86, 102 contiguousness. See contiguous Cooper, Christopher, 132, 133

Cooper, Roy, 67, 77, 78, 80, 96, 99, 103, 110 Cooper v. Harris , 146 Council of State, 96 Covington v. North Carolina, 103, 107, 146 Cromartie v. Hunt . See Easley v. Cromartie crossover district, 88–91 Cumberland County, 56, 132 D Davidson County, 119 Davie County, 119 Davis v. Bandemer, 41, 123 Days, Drew S., III, 36 Declaration of Independence, 20 Democratic. See Democratic Party Democratic Party, 8, 9, 17, 30, 42, 48–52, 54, 57, 58, 62, 67, 76, 79, 81, 83, 96, 111, 117, 119, 120, 123, 132, 133, 137 Dickson v. Rucho, 99, 103, 105, 146 District Court for the District of Columbia, 23, 24, 98 DOJ. See U.S. Department of Justice Dole, Elizabeth, 76 Dollar, Nelson, 131 double-bunk, 8, 27, 31, 56, 79, 132 Douglas, William O., 19, 61 Drum v. Seawell , 26, 27, 59 Dunne, John, 52 Durham County, 37, 50, 55, 57, 59, 120, 145 E Easley, Mike, 67, 76 Easley v. Cromartie, 79–81, 91 Edmund Pettus Bridge, 23 Edmunds, Robert H., 88, 89, 100–102

INDEX

Equal Protection Clause. See Fourteenth Amendment, Equal Protection Clause Everett, Robinson O., 58, 59, 68, 69, 99 F Fayetteville, 15 Fifteenth Amendment, 20, 23, 59, 62, 90, 100, 123 Fitch, Milton F. “Toby”, 51, 52, 82 Forsyth County, 28, 52, 55, 68, 86, 132, 137 Fourteenth Amendment, 8, 18, 19, 27, 28, 38, 42, 59, 60, 64, 90, 100, 111, 121, 135, 145 Equal Protection Clause, 8, 19, 27, 28, 38, 42, 60, 64, 78, 85, 100, 104, 107, 111, 121, 125–127, 130, 145 G Gaffney v. Cummings , 41 Gantt, Harvey, 57 Gardner, James, 31 Gates County, 57 General Assembly North Carolina, 9, 14, 28, 34, 35, 54, 67, 76, 78, 83, 84, 86, 100, 107, 110, 127, 131, 133, 135, 137, 147 Georgia, 19, 20, 23, 25, 63–66, 70, 105, 145 county unit system, 19 Echols County, 19 Fifth Congressional District, 20 Fulton County, 19 Ninth Congressional District, 20 Eleventh Congressional District, 64 gerrymander political, 62

157

gerrymandering, 3, 13, 27, 33, 41, 49, 63, 67, 70, 90, 92, 95, 96, 111, 118, 121, 123, 126–131, 134, 135, 147 partisan, 3–5, 21, 106, 110, 121–124, 126–130, 135, 136, 138 racial, 3–5, 8, 47, 58, 62–65, 70, 78, 92, 95, 96, 101–104, 107, 111, 122, 144, 145 Gettysburg Address, 20 Gill v. Whitford, 126, 127 Gingles, Ralph, 36 Gingles v. Edmisten. See Thornburg v. Gingles Ginsburg, Ben, 49 GOP. See Republican Party Gray v. Sanders , 19 Greensboro, 15, 36, 53, 55, 68, 69, 78, 80, 83, 119, 137 Gregory, Roger L., 104–107 Guilford County, 52–54, 69, 83, 104, 106, 132, 137 H Hagan, Kay, 76, 96 Hardaway, Thomas, 54 Harlan, John Marshall, 60 Harris v. Cooper, 103, 111, 118 Harris v. Lewis , 136 Hawke, Jack, 49, 52 Hayes, Robin, 83 Helms, Jesse, 39, 48, 57, 76 Hise, Ralph, 131 Hispanic, 25, 66, 98 Hofeller, Thomas, 98, 104–111, 122, 124, 131–133, 146 Holding, George, 138 Holmes, George, 51 Hood, M.V. (Trey), 141 Horner, Rick, 136 Hunt, Jim, 39

158

INDEX

Hunt, Samuel, 50

I Indiana, 41 influence district, 88, 89 Iowa Supreme Court, 85 Iredell County, 55, 119

J Jacksonian Democrats, 16 Jackson, Jeff, 136 Jenkins, Knox V., Jr., 86 Johnson, Douglas, 141 Johnson, Lyndon, 23 Johnston County, 30 Jonas, Charles, 27 justiciability, 18, 122 Justus, Larry, 83

K Kagan, Elena, 129, 130 Kennedy, Anthony, 64–66, 89–91, 123, 125 King, Rufus, 123 Kirkpatrick v. Presiler, 20, 32 Kitchen, Paul, 27

L Lake, I. Beverly, 84–86 Lewis, David, 97, 98, 104–106, 108–111, 118, 119, 131 Lincoln, Abraham, 20 literacy tests, 22, 23, 25 Louisiana, 23 Lumbee Indian, 50

M Mahan v. Howell , 20

majority-minority district, 36, 37, 49–56, 58–60, 62, 64–68, 78, 80, 82, 86–88, 91, 92, 97, 100–102, 108, 146 malapportionment, 20, 122 Martin, Jim, 52, 54 Maryland, 127–129 Mattingly, Jonathan, 124, 133 Mavretic, Joe, 48 maximization, 52, 65, 66, 90, 104, 105, 109 McCrory, Pat, 99, 103 McMahan, Ed, 67, 81 Mecklenburg County, 50, 54, 57, 68, 79, 80, 83, 84, 86, 110, 111, 119, 132, 136 Merritt, John, 54 Michaux, Mickey, 55 Miller, Brad, 81, 82 Miller v. Johnson, 63–65, 70, 77, 105 minimum controlling percentage, 27, 30 Minor, David, 82 Mississippi, 23 Missouri, 32–34 Moore, Dan, 28 Morgan, Richard, 67 multi-member district, 30, 35–40, 51, 57, 85, 134, 144 N NAACP. See National Association for the Advancement of Colored People Nash County, 30 National Association for the Advancement of Colored People, 50, 54, 99 Native American, 25, 53, 62, 98 N.C. NAACP and League of Women Voters of NC v. Lewis , 96 N.C. State Lottery Commission, 136

INDEX

N.C. Supreme Court, 84, 88–90, 100, 103 New Bern, 15 Newby, Paul, 103 New Hanover County, 87 Nineteenth Amendment, 20 North Carolina, 2–9, 13–17, 23, 25, 26, 28, 32, 34, 35, 37, 39, 40, 42, 47–53, 57–60, 63, 65, 67, 70, 75–77, 79, 81, 83–86, 89, 91, 92, 95–99, 101, 103, 104, 107, 111, 117, 118, 120, 121, 124–131, 133, 134, 136–138, 143–147 First Congressional District, 27, 30, 32, 51, 56–58, 62, 68, 77, 78, 83, 104–107, 119–121, 138 Second Congressional District, 16, 17, 22, 28, 30, 31, 37, 52, 83, 119, 120, 137, 138 Third Congressional District, 30, 56, 83, 120, 135, 138 Fourth Congressional District, 28, 30, 49, 83, 120, 138 Fifth Congressional District, 20, 28, 30, 49, 52, 83, 106, 138 Sixth Congressional District, 52, 83, 106, 137, 138 Seventh Congressional District, 30, 51, 83, 138 Eighth Congressional District, 17, 27, 49, 83, 138 Ninth Congressional District, 17, 27, 30, 31, 49, 79, 83, 138 Tenth Congressional District, 31, 51, 83, 119, 120, 138 Eleventh Congressinal District, 119 Twelfth Congressional District, 51, 55, 57, 58, 60–62, 66, 68–70, 77–80, 83, 91, 104–107, 119, 120, 145

159

Thirteenth Congressional District, 119 North Carolina constitution 1836, 26 1868, 26 Norwood, Charlie, 25

O Obama, Barack, 76, 96 O’Connor, Sandra Day, 60–62, 66, 67, 89 Orange County, 28, 55, 120 Owen, Karen, 141

P Pasquotank County, 56 Peeler, Mary, 54 Pegden, Wesley, 133 Pender County, 84, 87, 89, 101 Pender County v. Bartlett , 87 Persily, Nathaniel, 111 Piedmont, 14, 17, 26, 28, 30, 32, 49, 52, 54, 55, 68 Plessy v. Ferguson, 60 Pope, Art, 58 Pope v. Blue, 58, 121 population deviation, 6, 31, 85 population variance ratio, 27, 30 preclearance, 9, 23, 34, 36, 38, 39, 52, 59, 65, 66, 77, 99–101

R racially-polarized vote, 39, 41, 100, 117 racially-polarized voting, 39–41, 109, 144 Raleigh, 15, 98, 119, 127, 137, 147 reapportionment, 5, 19, 21, 36, 42, 59, 61, 85 redistricting revolution, 4, 6, 14, 26

160

INDEX

Rehnquist, William, 60, 65, 66, 89 representation descriptive, 3 substantive, 3 Republican. See Republican Party Republican Party, 8, 48, 49, 57, 58, 77 North Carolina, 16 Reynolds v. Sims , 21, 27, 33 Ridgeway, Paul C., 134 Roberts, John, 101, 127–130 Rockingham County, 52, 83, 120 Romney, Mitt, 96 Rose, Charlie, 54 Rowan County, 30, 55, 68, 119 Rucho, Bob, 97, 98, 104–106, 109, 111, 118, 121 Rucho v. Common Cause, 127, 134, 138

S Salisbury, 15 Savannah, 64 Scalia, Antonin, 89 Seventeenth Amendment, 20 Shaw, Ruth, 59 Shaw v. Barr. See Shaw v. Reno Shaw v. Hunt , 62, 63, 65–67 Shaw v. Reno, 54, 58, 60, 63–65, 70, 90, 102, 105, 145 Shelby County (Alabama) v. Holder, 101, 104, 109 single-member district, 24, 36, 37, 39, 41, 49, 51, 85, 86, 134 Souter, David, 91 South Carolina, 23, 50, 56 Stephenson, Ashley, 83 Stephenson v. Bartlett , 84, 86, 89, 98, 102, 134 Stokes County, 52 Strickland v. Rucho, 105

strict scrutiny, 60, 66, 67, 77, 100, 105

T Taylor, Charles, 83 Tennessee, 18, 20 Texas, 63, 66, 67, 70, 107, 145 Thomas, Clarence, 69, 89 Thornburg v. Gingles , 39–43, 67, 77, 87–91, 107–109, 144–146 Thornton, Janet, 141 Tillis, Thom, 96 totality of circumstances, 38, 39 trigger. See Voting Rights Act, Section 4 Trump, Donald, 96, 118, 120, 132, 136 Tyrrell County, 27

U U.S. Attorney General, 23 U.S. Census, 5 1970, 35 1980, 25, 35 1990, 48, 64, 81 2000, 87 U.S. Commission on Civil Rights, 22 U.S. Department of Justice, 9, 34, 35, 57, 65, 83, 86 U.S. House of Representatives, 2, 6, 57, 126 U.S. Supreme Court, 3, 4, 6–8, 14, 18–22, 25, 26, 28, 32, 33, 38, 40, 42, 43, 47, 48, 58–60, 62–65, 69, 70, 77, 78, 80, 81, 83–86, 88, 89, 91, 96, 101–103, 108–111, 118, 121–123, 125–127, 129–131, 138, 144–147

INDEX

V Valentine, Tim, 50, 52 Vera v. Bush, 70, 77, 107 Virginia, 23, 28, 50, 52, 56, 82, 83 Voting Rights Act 1965, 8, 14, 22, 23, 25, 34, 38, 42, 43, 49, 53, 57, 59, 60, 63, 84–86, 91, 92, 97, 99, 100, 135, 144–146 1970 amendments, 25 1975 amendments, 25 1982 amendments, 25, 38–40 2006 amendments, 25 ‘bail-out’ provision, 25 dynamic trigger, 25 Section 2, 23, 38, 40, 42, 66, 67, 77, 86–92, 97, 100, 101, 103, 107, 108, 144–146 Section 4, 18, 23, 101 Section 5, 23, 25, 37, 39, 52, 66, 91, 100–104, 106–109 VRA. See Voting Rights Act W Wake County, 30, 82, 86, 110, 111, 119, 120, 131, 132, 136, 137

161

Walker, Mark, 138 Warren, Earl, 21, 22, 30 Watt, Mel, 57, 62, 106 Wayne County, 27 WCP. See whole county provision Wesberry v. Sanders , 20, 33 Whigs, 16 White, Bryon, 41, 42 Whitener, Basil Lee, 31 whole county provision, 30, 31, 34, 37, 83–87, 89, 92, 100–102, 109, 146 Wilmington, 15, 50 Winston-Salem, 36, 55, 68, 78, 83, 137 Woodcox, Brent, 106 Wright, Andy, 57 Wright, Thomas, 83 Wynn, George, 122–127 Wynn, James A., Jr., 108, 109

Y YouTube, 136