In 2016, a federal court ordered North Carolina legislators to redraw the state's 13 congressional election districts in a way that didn't discriminate against African-American voters. Rep. David Lewis, the GOP chair of the redistricting committee, announced that legislators wouldn't use racial data but would "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."
The resulting congressional districts are being challenged in a new partisan gerrymandering lawsuit. Last week, the North Carolina Supreme Court assigned the case to the same three judges that recently struck down the state's legislative districts as excessively partisan. The plaintiffs have asked the court to expedite the trial.
The judges and the legal issues will be the same as in the recent trial over legislative districts. In this case, though, Lewis acknowledged that the congressional map is a partisan gerrymander, which he claimed was "not illegal" at the time. But in its groundbreaking decision, the three-judge panel ruled that voters' state constitutional rights are violated when the legislature "draws district maps with a predominant intent to favor voters aligned with one political party at the expense of other voters."
Lewis' prediction that the state would be represented by 10 Republicans in Congress held true in 2016, 2018, and special elections held last month in two districts. In the 2018 congressional elections, 49 percent of North Carolina voters chose Democratic candidates, but Republicans won in 10 out of 13 districts.
In the recent trial over the state legislative election districts, the parties spent days questioning experts on statistics and gerrymandering. The plaintiffs in the new case want to skip that part and have the court order new districts in time for the primary elections in March 2020. "North Carolinians have voted in unconstitutional congressional districts in every election this decade," they told the court. "They should not be forced to do so again."
The plaintiffs' request calls it "a straightforward case" that can be decided "based solely on the official legislative criteria for creation of the plan and the admissions of legislative defendants and their mapmaker, Dr. Thomas Hofeller," who died in 2018. The plaintiffs repeatedly note that the "defendants freely admitted during the 2016 redistricting process that they were seeking to predetermine congressional election outcomes."
The judges will soon schedule the trial. Candidates in next year's election will begin filing in early December.
At the moment, the judges are still reviewing a new map for state House elections that they ordered legislators to redraw about a month ago. The plaintiff in that case, Common Cause North Carolina, claimed the map-drawing process violated the court's order, citing an analysis by an expert witness at the trial who found that many of the new districts still favor Republicans. The state House map was passed along party lines.
Meet the players
The new lawsuit was filed on behalf of voters with support from the National Democratic Redistricting Committee, a group founded by former Attorney General Eric Holder. The voters are represented by lawyers at two firms in Washington, D.C. — Perkins Coie and Arnold and Porter — who specialize in election law.
As they were in other gerrymandering cases, GOP lawmakers are being represented by attorney Thomas Farr, a failed Trump judicial nominee who recently claimed that Lewis was "just joking" when he proposed that lawmakers draw the maps to favor Republicans. Author and activist Dave Daley published a transcript last week of a meeting of the conservative American Legislative Exchange Council in which Farr and others taught legislators and lawyers how to defend gerrymandered election districts and "get rid of" documents that could become evidence.
The three-judge panel hearing the case is the same one that has been appointed to hear several redistricting cases since 2010, when Republicans gained control of both legislative chambers for the first time in more than a century and began drawing election districts that would ensure they kept their majority. These are the judges on the panel:
- Judge Alma Hinton graduated from North Carolina Agricultural & Technical State University in 1986. A&T is the historically black college in Greensboro that the current map notoriously split into two congressional districts. Hinton went on to law school at North Carolina Central University, another historically black school, and worked as a prosecutor after graduation. Hinton was appointed to preside over Superior Court in Halifax County, one of a handful of majority-black counties in the northeastern corner of North Carolina, by Democratic Gov. Mike Easley in 2004. She was the first woman and the first African American to serve as a Superior Court judge there.
- A Democrat like Hinton, Judge Paul Ridgeway presides over Wake County, which includes the state capital. Ridgeway has handled high-profile cases, including lawsuits involving Duke Energy's 2014 coal ash spill in the Dan River. The News & Observer of Raleigh noted in a 2017 story, "With his experience on such matters and presiding over administrative appeals that arise from various state agencies, Ridgeway has been assigned by the chief justice in the past to serve as judge on exceptional and complex commercial and constitutional matters throughout the state."
- Judge Joseph Crosswhite presides over Iredell County, north of Charlotte, and previously worked at his family's local law firm. The sole Republican on the panel, Crosswhite is a retired Army colonel and veteran of the wars in Iraq and Afghanistan. He played a key role in a 2016 corruption investigation involving another judge.
The three judges were chosen by former Republican Chief Justice Mark Martin to hear the legislative districts lawsuit. They were previously appointed by former Chief Justice Sarah Parker, a Democratic appointee, to hear the first racial gerrymandering case filed after the 2011 redistricting process. Republicans had just taken control of the legislature in 2010 and started drawing election districts that would keep their all-white caucus in power. Parker retired in 2014.
In a unanimous 2013 decision, Crosswhite, Hinton, and Ridgeway ruled for the legislature in the racial gerrymandering lawsuit. Federal courts later overturned the decision and held that the election districts for both Congress and the state legislature were biased against black voters. The U.S. Supreme Court upheld that decision in 2016, in a ruling joined by conservative Justice Clarence Thomas.
New evidence suggests that, despite the federal court order, Hofeller may have used racial data when redrawing the congressional districts in 2016. Daley recently obtained data from Hofeller's hard drives, including files on racial demographics in the 2016 maps. "The documents serve as proof that [Hofeller] possessed the data and incorporated it into his decision-making," Daley said.
The three-judge panel will also soon decide whether and when to make Hofeller's files public.