AP/Gerry Broome

A federal court has ruled the state’s racially gerrymandered congressional map unconstitutional. Whatever happens now, voters are likely to lose.

Voters in North Carolina are caught in a heap of confusion as they approach their state’s March 15 primary election. A federal court ruled on February 5 that congressional district lines drawn in 2011 are invalid because they packed African American voters into two districts without just cause. A three-judge panel for the U.S. District Court in North Carolina has since charged the state’s general assembly with creating new district lines by February 19.

Problem is, thousands of ballots have already been mailed out for the upcoming primary, which include both U.S. House and Senate races. Some of those ballots have already been cast under the state’s early absentee voting rules. The state filed an emergency appeal today asking the court to suspend the ruling until after after the primary elections, and is expected to appeal to the U.S. Supreme Court if necessary. The plaintiffs in the case want the new lines drawn immediately, though, as ordered by the court. In their motion opposing the state’s request to hold off on the new redistricting, the plaintiffs write:

To be sure, North Carolina likely will incur additional cost and burden in altering its election plans to remedy the unconstitutional congressional plan, as it has done on numerous occasions in the past. But the irreparable constitutional injury Plaintiffs and all other North Carolinians will suffer if the stay is granted far outweigh any administrative injury North Carolina will suffer if the stay is denied.

This dilemma is just one of many cogs in the current voting cycle in North Carolina, which is both a swing state and a battleground state for national elections. The state is also entangled in several lawsuits around an election law it passed in 2013 that requires photo ID to vote, shrinks the early voting period, and disqualifies ballots cast in the right district, but wrong precinct. Challengers to that law want these measures undone before the upcoming primary as well.

“One thing remains clear,” as reporters for The Charlotte Observer write, “North Carolina again finds itself at the epicenter of the country’s voting wars, a 20-year court fight for power in mostly Southern states that slices across political and racial lines.”

At the center of the redistricting fight is the question of why legislators decided to inflate the percentage of African American voters in two of the state’s congressional districts. Republicans won control of the legislature in the 2010 midterm elections, which awarded them the right to draw new district lines based of updated Census population figures. The party used that right to increase its share of North Carolina’s 13 congressional districts from six to ten. In shrinking the Democrats’ share, the Republican Party took a number of black communities and packed them into Districts 1 and 12, giving them both black voter majorities.

You might be wondering what’s wrong with that. Well, one, it was unnecessary. Two, it may have potentially weakened black voters’ opportunities overall to elect a candidate of their choice, creating “voter dilution,” which is a violation of the Voting Rights Act.

Prior to the 2011 redistricting plan, North Carolina had no majority black voting districts, going back to at least 2000—and that was just fine. For the two districts in question, the voting-age black population had teetered around the 40 percent range in the years leading up to 2010. Black votes in those districts were joined by a healthy share of white votes in order to elect candidates of color or candidates that represented their interests.  

In padding those two districts with more black voters in 2011, Republicans tried to make their own districts “safe” for future elections by moving Democratic-leaning African American voters into a smaller number of districts. It was a textbook racial gerrymander. North Carolina was already tied with Maryland as the most gerrymandered state in the nation. The packing of African Americans into two districts made the gerrymandering look even shadier.

Architects of the 2011 redistricting plan have argued a few points in their defense:

  1. They felt obliged to convert the two districts into “minority-majority districts” by the Voting Rights Act.
  2. Their maps were drawn to give the Republican Party a political advantage, not for racial reasons.
  3. They were trying to protect an African-American incumbent —G. K. Butterfield, House representative for District 1—by giving him more black voters.

A local court accepted this defense in 2013, in response to lawsuits filed by civil rights organizations over the maps. The state supreme court has also ruled in the state’s favor, twice—the second time after the U.S. Supreme Court ordered it to review the case again. SCOTUS ordered the review after its finding last year that Alabama had also engaged in unlawful racial gerrymandering. Last Friday’s ruling on North Carolina by a U.S. District Court is the first to throw the state’s defense out.

The argument that the Voting Rights Act obligates redistricting officials to create or preserve “minority-majority districts” is wrong, wrote Judge Roger L. Gregory in his majority opinion for the federal three-judge panel. Race can never be used as the dominating factor for drawing districting lines. Even in cases where officials are seeking compliance with the Voting Rights Act, the state has to prove that it used race to achieve a specific goal under the civil rights law. North Carolina couldn’t do that, and instead developed a racial “quota” that operated as a filter through which all linedrawing decisions had to pass,” wrote Gregory.  

The state’s argument that it had a goal of trying to preserve Butterfield’s seat was also unconvincing. The Voting Rights Act can be used in some cases to create a majority-black district if there’s an existing majority-white voting block that can trump black voters at every turn. But that’s not the case in Butterfield’s district. Wrote Gregory:

Contrary to the [state’s] unfounded contentions, the composition and election results under earlier versions of [Butterfield’s district] vividly demonstrate that, though not previously a majority-[black] district, the white majority did not vote as a bloc to defeat African-Americans’ candidate of choice. In fact, precisely the opposite occurred in these two districts: significant crossover voting by white voters supported the African-American candidate.   

As for the state’s argument that it was only gerrymandering along partisan lines, which is legal, the judges found fault with that as well. Separating race from political party is bunk anyway, especially in North Carolina, as the election law expert Richard Hasen told The Charlotte Observer: “It makes absolutely no sense to fight about whether it’s race or partisan politics. Because it’s both.”

The fact that partisan-gerrymandering is lawful is still problematic, though. By allowing political parties to draw district lines to their own advantage, they’re able to shield incumbent officeholders from challengers by sequestering opposing voters off to other districts. This fuels political polarization, the current condition that explains why there are so many entrenched partisan ideologues in Congress, and why it’s so difficult to pass legislation.

Judge Max O. Cogburn, Jr., one of the three federal judges presiding over this case, recognized this problem in his own written opinion, which begins: “Voters should choose their representatives.”

Wrote Cogburn:

Since the issue before the court was created by gerrymandering, and based on the evidence received at trial, I write only to express my concerns about how unfettered gerrymandering is negatively impacting our republican form of government. … As redistricting through political gerrymander rather than reliance on natural boundaries and communities has become the tool of choice for state
legislatures in drawing congressional boundaries, the fundamental principle of the voters choosing their representative has nearly vanished. Instead, representatives choose their voters.

These redistricting decisions have already produced consequences for black and white voters. There have, obviously, already been elections using the current map, which have created Republican advantages for both its congressional delegation and its representatives in the state’s general assembly. One major outcome of the 2012 elections, based on that map, was the GOP’s majority in the state legislature became a veto-proof super-majority. With that political strength, Republicans easily passed a law in 2013 that brought even more changes to the state’s election administration, including the photo voter ID requirement, which studies show is harmful for minority voters.

There’s been a laborious series of ping-pong matches in the courts over that law and the redistricting maps ever since. Voters are caught in the crossfire, and no matter where the courts fall on what the state should do next about the now-defunct district maps, democracy has been compromised either way. If the courts keep the state under the February 19 deadline to redraw district lines, some of the votes already cast for the upcoming primary will likely be disqualified. If the courts rule that the state can change the maps later, black voters will cast votes in districts that have been deemed unconstitutional.

“The mapmakers should have known better at the beginning of their power-grabbing exercise, paused to be a little less greedy, and saved us all from the turmoil caused by their excessively partisan manipulation of election laws,” wrote Bob Hall, executive director of Democracy North Carolina, an organization also currently challenging the redistricting maps in court, in a separate case. “Maybe they believe dividing voters by race serves their interests, but it actually undermines everyone’s faith in fair elections.”

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