North Carolina

NC gerrymandering trial begins. It will have major implications for 2020 and beyond

The lines used to elect members of the North Carolina General Assembly are unconstitutional and should be redrawn before the 2020 elections, activists and politicians argued in court Monday.

In 2018, Democratic candidates won more than 50 percent of the votes statewide for seats in the legislature, said Stanton Jones, who represents the groups and voters challenging the lines. But Republicans still won most of the seats in both the N.C. House and N.C. Senate.

“The simple truth is this: Because of the extreme gerrymandering, Democrats cannot win a majority,” Jones said. “... These plans are impervious to the will of the voters.”

But Phil Strach, an attorney for the legislature’s Republican leadership, said his side will present evidence that Democrats could have won a majority or even a supermajority in 2018. He said Democrats simply have problems recruiting quality candidates, and want a court to help them over that hurdle under the guise of this lawsuit.

He also said that since the North Carolina constitution specifically gives redistricting power to the legislature, it shouldn’t even be up to a court to step in and dictate how redistricting should or shouldn’t work.

“What the plaintiffs here really want is for this court to undemocratically change the redistricting process and remove it from the legislature,” Strach said.

Monday was the first day of what’s expected to be a lengthy trial debating the merits of lines approved by the Republican-led legislature in 2017, to replace a previous set of lines from 2011 that had been ruled unconstitutional due to racial gerrymandering.

The arguments in this case, however, are likely to focus less on racial disenfranchisement and more on purely political disenfranchisement.

A separate partisan gerrymandering lawsuit recently challenged North Carolina’s seats in the U.S. House of Representatives. Republican lawmakers won that case last month, when the U.S. Supreme Court ruled that the lines could stay in place. But this case is in state court and challenging only the state legislative lines, so its outcome will not necessarily be dictated by that Supreme Court ruling.

Trial opens

The challengers include the state Democratic Party and watchdog group Common Cause. Monday’s testimony featured only their witnesses. Lawyers for Republican lawmakers and voters cross-examined those witnesses throughout the day Monday, and will get the chance to bring their own witnesses as the trial continues, later this week or possibly next week.

In his opening statement Monday, Jones said the lack of action by the Supreme Court on partisan gerrymandering makes it even more important that the state courts step in, citing the well-known Supreme Court opinion that states are the laboratories of democracy.

And especially in North Carolina — where the governor is legally forbidden from vetoing redistricting plans — Jones said, “only the courts can end this cycle and ensure free and fair elections in 2020.”

The focus on 2020 is important not just for that year’s elections, but potentially for a decade afterward. Under current state law, whichever party controls the legislature after the 2020 elections will be in charge of redistricting to draw the maps for every election through 2030, using new data from the 2020 Census.

Bob Phillips, executive director of Common Cause NC, was the first to testify Monday. He praised redistricting reform proposals from Republicans — including current Senate leader Phil Berger and House Speaker Tim Moore — when Republicans were in the minority at the legislature in the early 2000s.

Democrats resisted those and other calls for reform when they held power. So after Republicans took control after the 2010 elections, Phillips said, “I thought we were close.”

But he said he now feels like Charlie Brown, being fooled in a recurring theme in the Peanuts cartoon, in which Lucy pulls a football away right as he’s trying to kick it. Phillips said while he would like to see the legislature pass reform, he believes the court system is more likely to bring positive change.

“There has been no meaningful opportunity to pass redistricting reform at the General Assembly,” he said. “I’ve been at this for 20 years.”

Testifying after Phillips was Sen. Dan Blue of Wake County, the top Democrat in the Senate. Blue has been in the legislature for decades, including several years as speaker of the House.

He and other Democratic leaders passed gerrymandered maps during that time that helped their cause, and he said he could see when he looked at this Republican-drawn map that it would be a boon to that party.

“It was designed to have a perpetual majority,” Blue said.

Scores for voters

After Blue, Democratic Rep. Greg Meyer of Orange County testified. He helped recruit Democratic candidates for the 2018 House elections, when Democrats broke the GOP supermajority but didn’t take over the majority, despite winning the majority of the votes.

“Running under gerrymandered maps is difficult,” he said. “... The largest restricting factor, we felt, was the composition of the maps.”

Meyer’s testimony also included the evidence that Strach appeared to have alluded to when he said Democrats could have won a supermajority under the current maps.

The Democratic Party had previously tried to keep that evidence out of trial but was unsuccessful. The previously secret internal documents, made public Monday, show the party has “support scores” for every voter in the state, using consumer data to guess how they might vote.

A spreadsheet shown in court lists those support scores along with 2018 election results and how much money the Democratic Party spent on each race.

“The Democrats analyzed the 2017 maps, which showed they could win Democratic majorities,” Republican Sen. Ralph Hise, a top redistricting official, said in a news release. “They successfully kept this information secret — until now.”

Meyer, however, testified under oath Monday that that’s not quite what those documents showed. He acknowledged the existence of the support scores but said they’re never used to predict election outcomes. He said they’re not entirely reliable for individuals, so their accuracy decreases as you look at larger and larger groups of people. Plus, he said, they don’t predict a key piece of information — whether the person in question is a likely voter.

“They don’t tell us the likelihood of what an election could be,” Meyer said. “We have to look at things like who is actually going to vote, and support scores don’t show us that.”

Hofeller files

A key point in this case had been whether evidence would be allowed from the formerly secret files of Republican redistricting expert Tom Hofeller, who drew the lines used in North Carolina and other Republican-held states. The files were mentioned only briefly on Monday, although they are expected to take more of a focus later in the trial.

In this gerrymandering case, legislative leaders had fought to keep Hofeller’s files out of court. Their challengers have claimed the files will show Hofeller broke the rules when drawing these maps, including by secretly using racial data.

Jones, the Common Cause attorney, said his side plans to present numerous pieces of evidence at trial. He added, “if there were any lingering doubt, we will present direct evidence from Dr Hofeller’s own files ... that partisan gain was his singular objective.”

But Strach, the Republican lawmakers’ attorney, downplayed the importance of those files. He said that Hofeller is being used as a bogeyman, since he died in 2018 and can’t be here to testify. Strach also previously argued, in efforts to keep Hofeller’s files out of this case, that anything found on Hofeller’s personal computers regarding the North Carolina maps had been done simply as a hobby, and not an official act for the legislature.

”Anytime you hear the name Hofeller, know that it is a sideshow by plaintiffs attempting to distract from the weakness of their case,” Strach said.

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