North Carolina Congressional Redistricting Challenge (SCOTUS)

 On Tuesday, March 14, the North Carolina Supreme Court reheard Harper v. Hall. First, the court heard from the Republican legislators who asked the North Carolina Supreme Court to rehear Harper and argued that the court should “withdraw” its December 2022 decision (which they refer to as Harper II). This decision struck down the state’s remedial Senate map for being a partisan gerrymander and affirmed the trial court’s rejection of the Legislature’s remedial congressional map, which was ultimately replaced by a court-drawn interim map that was only in place for the 2022 elections. Additionally, the Republican legislators asked the court to “overrule” its February 2022 decision (which they refer to as Harper I) striking down the state’s original legislative and congressional maps enacted by the Legislature for being partisan gerrymanders. Finally, the Republican legislators asked the court to rule that partisan gerrymandering claims are nonjusticiable (meaning they are not suitable for courts to rule on) and to allow the Legislature to redraw all three sets of maps for the next election cycle free from judicial interference.

At the onset of today’s argument, Justice Morgan asked the Republican legislators: “What has happened over the course of the past 88 days since we issued our opinion that would mandate and compel a different result?” To this question, the Republican legislators responded that “Harper II demonstrates that Harper I was a failed experiment…It created a partisan gerrymandering claim out of multiple vague state constitutional provisions that do not say anything about partisanship in redistricting.” Justice Earls then chimed in to this line of questioning to confirm that the Republican legislators are not disputing the facts of Harper I, which found that the challenged maps were among the “most extreme gerrymanders possible;” Earls gleaned that instead, the Republican legislators are asking the court to “say in spite of those facts, the North Carolina Constitution offers no protection to voters.” The Republican legislators responded to Earls affirmatively: “Yes, Your Honor. The North Carolina Constitution does not speak to partisanship in redistricting…There is no standard for partisanship and redistricting in the state constitution.”

The Republican legislators further elaborated on their contention about partisan gerrymandering claims being outside the purview of judicial review: “It is impossible to measure so-called partisan gerrymandering and it is therefore nonjusticiable,” they argued. After stating that the question of political fairness in redistricting should be left to “the people,” Earls pushed back: “How can it be left up to the people? Because if the maps don’t fairly reflect the voting strength of the people of the state, aren’t you essentially seeking to prevent voters from exercising control over their own government?”

In the midst of the Republican legislators’ arguments, Justice Dietz asked how the North Carolina Supreme Court’s decision to rehear Harper affects the U.S. Supreme Court’s jurisdiction to decide Moore. The Republican legislators replied that “the North Carolina Supreme Court court certainly has the authority to overrule Harper I notwithstanding Moore v. Harper.”

On the other side, the pro-voting parties refuted the arguments made by the Republican legislators, asserting that the legislators failed to provide the court with a valid basis for overruling its prior decisions regarding partisan gerrymandering. Accordingly, the pro-voting parties urged the court to affirm its prior decisions. “The legislative defendants play a cynical game, hoping that this newly constituted court will reverse course and abdicate its fundamental duty of judicial review,” they argued. 

In addition to underscoring that partisan gerrymandering claims are justiciable, the pro-voting parties pushed back against the Republicans’ request to redraw the state House, state Senate and congressional maps, noting that although the legislators are permitted to redraw the congressional and state Senate maps that were previously struck down, they are not permitted to redraw the state House map. In support of this argument, the pro-voting parties asserted that the North Carolina Constitution and prior precedent “prohibits mid-decade redistricting,” meaning that lawmakers cannot redraw the state House map until after the 2030 census.

Throughout the argument, the court’s Republican justices pressed the pro-voting parties on what it means for voters to have “equal voting power” as it relates to redistricting and also asked how the court can set judicial standards for partisan gerrymandering claims. To this, the pro-voting parties responded that the “standard here flows directly from the [state] Constitution” which “requires that all voters have substantially equal voting power — that means the opportunity to translate their votes into seats.” The pro-voting parties reiterated that in line with the trial court’s findings that all three challenged maps were “extreme partisan gerrymanders” favoring Republicans, the North Carolina Supreme Court was correct in its previous decision striking down the maps for violating the North Carolina Constitution. 

Finally, Dietz asked the pro-voting groups for their view on whether the North Carolina Supreme Court still retains jurisdiction (meaning the legal authority to decide the case) in light of the pending U.S. Supreme Court case, Moore. The pro-voting groups responded that their views on jurisdiction will be shared next Monday, March 20, in the briefing that the Supreme Court requested over the issue of jurisdiction.

On Oct. 4, 2022, the seven justices of the North Carolina Supreme Court heard oral arguments regarding the plaintiffs’ and legislative defendants’ appeal of North Carolina’s legislative maps and congressional map. 

First, the court heard from the attorney representing the Harper plaintiffs who appealed the remedial state Senate map that was passed by the General Assembly after the North Carolina Supreme Court struck down the General Assembly’s original map for being a pro-Republican gerrymander. The attorney began by discussing her opposition to the legislative defendants’ motion to dismiss their own appeal of the remedial congressional map in light of their simultaneous appeal raising ISL in the U.S. Supreme Court. Justice Robin Hudson began by asking the attorney, “What would be the consequence if we did dismiss the [legislative defendants’] appeal [of the remedial congressional map]?” The attorney for the Harper plaintiffs responded by stating that if the North Carolina Supreme Court dismisses the appeal, it should stipulate that as a matter of North Carolina law, all of the arguments regarding the remedial map are waived, specifically the arguments that invoke the federal Elections Clause and ISL. She added that if the Court were to dismiss the legislative defendants’ appeal — without specifying that the legislative defendants’ ISL arguments contravene North Carolina state law —- then there is a risk that the legislative defendants’ will say to the U.S. Supreme Court that these arguments were never waived under North Carolina law. The attorney stated that alternatively, it would be optimal if the North Carolina Supreme Court heard the appeal of the congressional map in full and affirmed the trial court’s decision to impose an interim remedial map for 2022. She also asked that the court hold that North Carolina law authorizes judicial review of congressional maps under the North Carolina Constitution and rule that the legislative defendants’ Elections Clause argument be waived since it is not even contained in the legislative defendants’ opening brief regarding their appeal of the remedial congressional map. 

Subsequently, the attorney for the Harper plaintiffs turned to discussing the Harper plaintiffs’ appeal of the remedial state Senate map. She asserted that the trial court committed “legal error with respect to the state Senate map” since the map “significantly favored Republicans.” She also noted that the trial court erred in failing to consider that “every single neutral special advisor to the [court-appointed] master concluded that this plan had significant bias.” She also pointed to the fact that under the remedial state Senate plan, “there is an average of a four seat advantage for Republicans at the same vote share.” Furthermore, the attorney for the Harper plaintiffs added that the legislative defendants’ own expert similarly found evidence of a Republican advantage under the remedial state Senate map. 

Next, the court heard from the attorney representing the Common Cause plaintiff who appealed both the remedial state Senate map and the remedial state House map. The attorney argued that the General Assembly’s maps violated North Carolina’s Equal Protection Clause and intentionally dilute the voting power of Black voters. The attorney also contended that both the state House and Senate maps are unconstitutional partisan gerrymanders. The attorney asked the court to adopt the remedial districts proposed by the Common Cause plaintiff in House District 10 and Senate District 4 and to “reverse the trial court’s remedial order as to the state legislative maps.”

Next, the court heard from the attorney for the legislative defendants. The attorney began by stating that the remedial legislative maps enacted by the General Assembly were fairly enacted and drawn using non-partisan standards and by non-partisan staff. Additionally, the attorney for the legislative defendants raised the point that the Legislature should be given deference when it comes to the remedial map-drawing process. Justice Samuel Irvin asked, “In your view, deference means what?” The attorney responded that “[the maps and the metrics used to draw them] should be accepted unless [they are] obviously wrong.” When asked by Hudson if the trial court should be able to review and oversee the redrawing of the maps, the attorney again emphasized that the trial court can review the maps but “should defer to the General Assembly unless what the General Assembly did was obviously, clearly wrong.” The attorney then turned to the trial court’s rejection of the Legislature’s remedial congressional plan that was replaced with a plan drawn by a court-appointed special master (since it was an unconstitutional partisan gerrymander). The attorney claimed that the North Carolina Supreme Court gave the trial court “carte blanche to pick the maps that it wanted to pick.” The attorney closed out his arguments by concluding that the plaintiffs’ support for a “holistic approach” to map drawing invites a “usurping of the redistricting function by the courts from the Legislature.”

The court then heard closing arguments from the attorneys for the various sets of plaintiffs. The attorney for the Harper plaintiffs reiterated her contention that the remedial state Senate map is a partisan gerrymander and should be struck down, while the congressional map should be affirmed. The Common Cause plaintiff’s attorney also gave closing arguments in which she once again urged the justice to strike down both of the remedial legislative maps for violating the North Carolina Constitution. 
Finally, the court heard a rebuttal from the attorney for the legislative defendants who reiterated that the court  should “defer to the choices that the General Assembly made” in trying to “undertake this very difficult task.” He once again asked the court  to affirm the trial court’s approval of the remedial legislative plans and asserted that the trial court should have deferred to all of the maps drawn by the Legislature.

On Wednesday, Feb. 2, the full North Carolina Supreme Court heard oral arguments regarding the constitutionality of the state’s maps after the plaintiffs appealed the trial court’s decision. The arguments focused largely on what level of partisan gerrymandering, if there even is a limit, is allowed under the North Carolina Constitution. The appellants (the parties who appealed the trial court’s decision) argued that partisan gerrymandering explicitly violates the state constitution and its premise of “free and fair elections.” They argued that, under a gerrymandered map, “the leaders already in power manipulate the district lines to subvert the will of the people. They classify voters on the basis of their political beliefs and then systematically sort the minority party’s voters into districts…to minimize their electoral influence. The intent and effect is to predetermine the outcome of elections and entrench the majority party in power, regardless of how the people vote.” In response, the lawyers representing the Republican appellees argued that “the General Assembly is allowed to draw districts for partisan advantage” and that there is no clear standard “between what partisan intent and lean is allowed and what partisan intent and lean is not allowed.” The appellees also suggested that the court shouldn’t strike down the maps because, if they do, people will think that the court is a “partisan actor” and the court “has an obligation to protect the reputation of the court.” In rebuttal, the appellants reminded the court that it “really is the only check [of gerrymandering] here. Elections can’t provide a check, the governor can’t provide a check, amendments aren’t available and it will only get worse if this court gives the General Assembly a blank check [to gerrymander].”

We heard closing arguments from the plaintiffs and defendants. Summaries of their statements are outlined below. The trial court panel, consisting of two Republican judges and one Democratic judge, must rule on the constitutionality of the maps by Jan. 11. Any appeal will be heard by the North Carolina Supreme Court on an expedited basis.
 
The lawyer for the Harper plaintiffs, Elisabeth Theodore, reiterated that the new state House, Senate and congressional maps are partisan outliers that violate the North Carolina Constitution. She pointed out that the legislative defendants offered no defense of the new congressional map, which is expected to solidify a 10-4 Republican majority even if Democrats win up to 52% of the statewide vote. Theodore highlighted the key findings of the plaintiffs’ data and math experts, including that Dr. Pegden found that the “2021 congressional plan is more carefully crafted to advantage Republicans than over 99.9999% of the trillions of comparison maps he generated by making tiny changes to the precincts in the enacted map. In other words, the district boundaries are so carefully crafted that if you just touch it the Republican advantage evaporates.” The new state House and Senate maps were similarly found by experts to be partisan outliers, with “many of the challenged clusters in the House map were drawn in secret, behind closed doors, using unknown software and an unknown computer.” Theodore focused on the defendants’ expert, Dr. Barber, and argued that “Barber could have been an expert for the plaintiffs in this case. Using his own partisan index, he agreed the House and Senate maps are partisan outliers.” In summary, the plaintiffs’ experts offered overwhelming statistical evidence that the enacted maps were generated with pro-Republican bias. Theodore pointed to the information Rep. Hall revealed under oath — that, prior to his previous statements to the contrary, he engaged in daily strategy sessions outside map drawing room in private and used maps drawn outside the room — and highlighted that Hall was one of the few legislative defendants that waived his legislative privilege to talk about his actions during the redistricting process. The court and public do not know how the other legislative defendants who refused to waive privilege acted during the redistricting process. Theodore closed the Harper plaintiffs’ argument by highlighting that the gerrymandered maps have real effects on voters across the state who will not have their vote translated into representation over the next decade. She reiterated that the court should find that the enacted plans relied on too much partisan intent and strike them down.
 
The lawyer for the NCLCV plaintiffs, Zachary Schauf, opened by stating that “when we go to the polls to vote, we exercise the most fundamental right that our democracy has given us.” However, the enacted maps are partisan gerrymanders that all but render North Carolina elections over the next decade meaningless. Schauf pointed to the findings of one expert, Dr. Moon Duchin, who showed that the partisan geography of North Carolina does not explain district configurations and fairer maps can be created following the state’s redistricting criteria. Schauf reiterated Duchin’s point that “you don’t get that large and durable of an effect by accident.” Pointing to North Carolina’s history of racially polarized voting, Schauf argued that under the new maps Black voters will not be able to elect the candidates of their choice and they will be underrepresented at both the state and federal level, a harm that is “both profound and unavoidable.” Schauf defended the alternative maps put forth by the NCLCV plaintiffs.
 
Hilary Klein summarized the arguments and evidence of plaintiff Common Cause, asking the court to find that the new maps violate multiple provisions of the North Carolina Constitution. She pointed to expert Magleby’s conclusion that the enacted maps’ “partisan bias goes far beyond anything we’d expect based on North Carolina’s political geography.” Klein also critiqued the race-blind process the Legislature used during the process, stating that “it is cynical and pernicious to claim colorblindness.” This method, according to Klein, resulted in intentional racial discrimination that “consistently targeted and destroyed effective crossover districts” where Black voters previously had a chance to elect their candidates of choice. Klein also reiterated concerns with the overall map-drawing process, highlighting how Sen. Hise and Rep. Hall had clear strategies discernible in the evolution of their district drawings. Furthermore, the fact that Hall relied on maps provided by his aide — a 2020 law school graduate — that resulted in carefully crafted state House districts begs the question where and from whom this aide might have received help. Klein closed her arguments by stating that courts have a role to play in this process: ensuring that maps are in line with the North Carolina Constitution.
 
Philip Strach presented closing arguments for the defendants. Strach stated that the plaintiffs’ theories in this case are the real “threats to democracy.” He argued that the plaintiffs “concocted algorithms to tip the scale in favor of Democrats” and critiqued the experts and alternative maps put forth by the NCLCV plaintiffs. Strach specifically focused his criticism on the simulations and algorithms used by the plaintiffs’ data and math experts, arguing that there was a “man behind the curtain” controlling the algorithm to benefit Democrats. The fact that the plaintiffs and their experts did not take the legislative record into account also taints their arguments, according to Strach. Strach defended both Dr. Barber and Rep. Hall and stated that the enacted maps follow neutral redistricting criteria and the partisan geography of the state. In fact, if Hall wanted to gerrymander state House districts in favor of Republicans, Strach asserted that he could have done more to manipulate districts, so he clearly did not gerrymander in the first place. Strach also dismissed the plaintiffs’ claims of intentional racial discrimination, saying that race was used as a “last resort” pretext to try to get more Democratic votes. Summarizing experts, Strach stated that majority-Black districts aren’t necessary in North Carolina in order for Black voters to elect their candidates of choice — an assertion that was disproven by plaintiffs’ experts. To close out the defendants’ presentation, Strach tells the court that “politics are not a math problem” and repeated that it would be a “threat to democracy” for the court to remove redistricting power from the General Assembly and hand it to computers and the mathematicians who run them.

On the third day of trial, lawyers for North Carolina Republicans defended the new state House, Senate and congressional maps. They presented numerous experts that spoke about the makeup of the maps and the public learned that a legislative leader used “concept maps” created outside the public map-drawing room to aide drawing. The plaintiffs then called a few final witnesses to end the evidence portion of the trial.

Jeffrey Lewis, an expert for the defendants, was asked to look at racially polarized voting in North Carolina. He concluded that it’s possible to create districts in the state today that are not comprised of a majority-Black population but still elect Black voters’ candidates of choice. During cross examination, Dr. Lewis admitted that multiple districts that previously performed for Black voters no longer would after redistricting.

Michael Barber, a political science professor at Brigham Young University, took the stand next. Barber and the algorithm he used to analyze the enacted maps and NCLCV’s alternative maps were the focus of critique from many of plaintiffs’ experts. Barber, who does not have a background in math nor any published redistricting papers, defended his method of analysis, which was different than the methods used by other experts. During cross examination, Barber admitted that he misspoke during his deposition and, under the algorithm he used, the state House and Senate districts reflect partisan outliers in favor of Republicans. Barber also stated that partisan intent is one possible explanation behind how districts were drawn.

State Sen. Ralph Hise (R) spoke about his role during the redistricting process as co-chair of the Senate redistricting committee. Hise said the committee’s priority in drawing new Senate districts was to keep counties whole and no partisan data was used during the process. However, Hise admitted that he did not explicitly tell his staff or other legislators to not use partisan data nor ask if they had used it because everyone was “well aware” of the criteria to not rely on partisan data. Hise also answered that district lines that were drawn without any partisan or racial data that have the effect of favoring Republicans do not violate the state’s redistricting criteria.

State Rep. Destin Hall (R), a co-chair of the House redistricting committee, explained how he drew new state House districts in the public map-drawing room. Hall admitted to using “concept maps” drawn outside the courtroom to aide his drawing in the public map-drawing room, despite previous messages that all maps were drawn physically in the room without any outside help. The concept maps, which were destroyed and unavailable for viewing by the plaintiffs’ lawyers, allegedly helped speed up Hall’s drawing, but they were allegedly only used as a “frame of reference” to orient him. However, during his deposition, Hall stated that the concept maps were used as a “game plan” for his map drawing. Hall admitted that he did not know where his aide, Dylan Reel, drew the concept maps or if he consulted with any outside groups about the maps. Hall reiterated that he believed this round of redistricting was North Carolina’s most transparent.

The defendants called one final witness, Sam Hirsch, who is a lead lawyer for the NCLCV plaintiffs. Hirsch explained the background of the algorithm used to generate NCLCV’s alternative map proposals.

During their rebuttal, the plaintiffs called two final witnesses.

Jonathan Mattingly, whom we first met on Monday, spoke again about how he generated simulated maps and how they show that the enacted maps favor Republicans even as Democratic vote share increases. Mattingly also asserted that Barber misrepresented his research earlier in the day.

State Rep. Zack Hawkins (D), a member of the redistricting committee, explained how he found the redistricting process to be lacking transparency and how it was “not a process where fairness and equality would be the end goal.” Hawkins raised concerns about how race was being ignored during the process, believing that failing to look at racial analysis would harm Black voters.

In the second day of the trial, more experts spoke about North Carolina’s new state House, Senate and congressional maps. The plaintiffs finished questioning all their experts, who detailed how the new maps are partisan outliers that are likely to erode multiracial coalitions. The defendants also introduced their first expert.

Wesley Pegden finished up questioning that spilled over from Monday. He explained how he used an algorithm that starts with the enacted maps and makes small changes to see how fragile the districts are crafted to determine that the maps are extreme partisan outliers. This analysis does not consider “post hoc” rationalizations by the legislators about why they drew districts a certain way.

James Leloudis, a history professor at UNC Chapel Hill, outlined North Carolina’s long history of racial discrimination, particularly in voting laws and practices. Based on his analysis of the enacted maps, Leloudis concluded that they continue this tradition of racial discrimination by limiting the voting power of Black residents. Contrary to past redistricting cycles that sought to build coalitions to expand Black political participation and power, he states that the new maps are “unlikely to advance multiracial coalitions and may well undermine and impede them.”

Tyler Daye, an organizer with Common Cause North Carolina, testified about his experience tracking the state’s redistricting process during which legislatorsand aides would enter a public map-drawing room and draw districts on computers. Day concluded that the process was confusing, stressful and not transparent and it was unclear which materials and people were aiding the legislators.

Daniel Magleby, a political science and redistricting professor, analyzed new state House, Senate and congressional districts to determine if they represented partisan gerrymanders. He used an algorithm to generate 1,000 comparison maps. Regarding the congressional map simulations, Democrats carried five to seven congressional districts and 10% of the simulated maps produced a 10-4 map (what the enacted map is). While the algorithm drew a few maps in which Democrats won four seats, none of them exhibited a partisan skew to the same extent the enacted map did. Regarding the state House simulations, the most common outcome was 52 state House seats carried by Democrats, compared to 48 in the enacted plan. The enacted state Senate map is more extreme than all the simulations that Magleby’s algorithm generated.

Moon Duchin, a math professor at Tufts University who focuses on redistricting, found that the enacted maps exhibit and entrench a “quite large partisan skew” and diminish minority electoral strength. After comparing the enacted congressional map to six alternative plans, Duchin concluded that the enacted maps have an “egregious partisan imbalance” and are meant to “resiliently safeguard” a Republican advantage. Duchin emphasized that North Carolina’s redistricting criteria and geography don’t force a certain partisan outcome in maps, like the legislators claim.

The first witness for the North Carolina Republican defendants was Andrew Taylor, a political science professor at NC State. Taylor’s two main points were that the state’s redistricting process was transparent compared to other states and that the North Carolina Constitution does not explicitly ban partisan gerrymandering. Taylor argued that there is no historical association between redistricting and the state constitution’s provisions and there are many variables that need to be considered when evaluating district plans. During cross examination, Taylor suggested that those who want electoral change should do so through the political system and/or make constitutional amendments — meaning that the only recourse for voters who are concerned about redistricting is to persuade the legislators who are entrenched by redistricting to change their minds. Taylor also added that judges may need to step in to determine how much “discretion” legislators have regarding partisan gerrymandering.

During the first day of the trial, four of the plaintiffs’ experts testified: Jowei Chen, Christopher Cooper, Jonathan Mattingly and Wesley Pegden. Each expert was questioned by lawyers on both sides about their analyses and conclusions regarding the partisan breakdown of the new state House, state Senate and congressional maps. Pegden will continue being questioned tomorrow morning.

Chen, a political science professor at the University of Michigan, focused on the new congressional map and its partisan breakdown in comparison to other map proposals. He generated 1,000 comparison maps using North Carolina redistricting criteria without any partisan considerations. Of the 1,000 simulations, 97% had less than 10 Republican districts, which is what the enacted map has. Chen also emphasized that the new map is a partisan outlier that cannot be explained by the state’s political geography or redistricting criteria laid out by the Legislature.

Cooper, a political science and public affairs professor at Western Carolina University, focused his analysis on the partisan effects of the new maps. Specifically, he pointed out that 75% of the state’s population growth over the last decade was concentrated in Democratic counties, but the new congressional map does not reflect that. Three of the state’s Democratic strongholds — Mecklenburg, Guilford and Wake counties — were each unnecessarily split three times.

Mattingly, a math and statistics professor at Duke University, looked at partisan gerrymandering in the enacted state House, Senate and congressional maps and concluded that all maps show significant Republican bias and the chance that the maps weren’t drawn with partisan intent is “astronomically small.” Mattingly showed that, even when vote shares increase for Democrats under the enacted maps, the extreme partisan lean means that any increased vote share does not correspond into increased Democratic representation.

Pegden, a math professor at Carnegie Mellon University, used an algorithm to analyze the enacted state House, state Senate and congressional maps and test how carefully crafted the maps were to ensure partisan bias. He concluded that the enacted maps were all extreme partisan outliers. His cross examination by the legislative defendants’ lawyers will continue tomorrow morning.