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Expert: Now is the time for voters, courts to hold legislators accountable in redistricting process

The top news this week, other than the former FBI Director’s enthralling testimony, has undoubtedly been the U.S. Supreme Court’s ruling that 28 of North Carolina’s legislative districts are unconstitutionally racially gerrymandered.

The local political battle that ensued in the day’s following the court’s ruling has been just as captivating, but like election law, North Carolinians need to focus on the future, according to at least one expert — that means shifting attention from Twitter to email and texting to phone calls.

“The most important thing for people to know is that they have a responsibility for holding their legislators accountable in the redistricting process,” said Guy-Uriel Charles, founding director of the Duke Law Center on Law, Race and Politics. “People have to pay attention to redistricting and to line drawing and to the way that districts are constructed, and they ought to demand fairness from their legislators. It’s hard to do it at the ballot box because once the districts are already constructed, that makes it harder for the voter to have the impact that the voter might want to have. In many senses, the die is already cast.”

Charles said it would be reasonable for people to say “gee, these legislative districts are unconstitutional, therefore the legislators are unconstitutional and therefore anything that they’ve done is illegal and does not have any effect,” but that’s not the way election law typically works.

Guy-Uriel Charles, Charles S. Rhyne Professor of Law, Senior Associate Dean for Faculty & Research at Duke Law School

“Election law says ‘OK, we’re not going to look backward … we’re not going to unscramble the scrambled egg because it’s hard to unscramble a scrambled egg; so we’re just going to start all over again and say, alright, going forward, we need to redraw these districts and the next question is often, do there need to be special elections?,” he said.

The issue of the state redrawing its unconstitutional maps is separate from the issue of whether there will be special elections this year, but one dictates the other and the clock is ticking on the possibility of elections this year.

Gov. Roy Cooper has tried to force the legislature to start redrawing the unconstitutional districts right away but Republican leaders have said they won’t redraw anything until the court formally orders them to. The longer they drag out the fight, the better chance they won’t have to hold special elections.

But, “the state will have to remedy the constitutional violation one way or another,” Charles said.

“Right now, when it looks likely that the state will have to redistrict or at least redraw some of the lines, that’s when voters ought to get involved, contact the state legislators and make sure that that process is fair to everybody and doesn’t discriminate on whether a person is white, black, Latino, whether a person is Republican or Democrat,” he added. “[They should make sure] that it’s a fair, competitive process and that the legislators are not creating a seat for themselves, that they’re actually trying to create fair districts so that voters can have real, genuine opportunity to decide who they want to represent them.”

That’s something that Common Cause NC and many others, including Republicans, championed for a long time. In fact, yesterday marked the six-year anniversary of the passage of House Bill 824, a bill to establish a nonpartisan system for drawing the state’s voting districts.

The bill ultimately stalled in the Senate, but at the time was supported and voted for by dozens of Republican lawmakers including then-Speaker of the House Thom Tillis, along with Reps. Tim Moore (R-Cleveland) and David Lewis (R-Harnett).

Now, an identical bill, HB200, is stalled in committee despite broad bipartisan support.

“The Republican Party is the original champion of redistricting reform in North Carolina and many of the key supporters of House Bill 200 today are in fact Republicans,” said Common Cause Executive Director Bob Phillips. “We would gladly welcome the House leadership, including Speaker Moore and Rep. Lewis, to rejoin the cause they so firmly believed in just a few years ago and give House Bill 200 the vote it deserves.”

According to Common Cause, an April survey from Public Policy Polling found 80 percent of North Carolina voters are in favor of independent redistricting. More than 260 locally elected officials from 130 towns and cities across the state have signed a petition urging the legislature to pass nonpartisan redistricting, and over 100 North Carolina business owners have launched a coalition calling for fair voting maps.

Charles said voters and courts have to be vigilant in making sure there is no racial gerrymandering going on or to limit political gerrymandering when it comes to the redistricting process.

Theodore Shaw, UNC School of Law Julius L. Chambers Distinguished Professor of Law and Director of the Center for Civil Rights

“Redistricting is job preservation for legislators; they don’t have the incentive to do it in a fair way,” he said. “Their incentive, in fact, is to make it is bias as possible because they’re trying to set up and maintain their job security as long as possible.”

Given North Carolina’s history, it’s likely redistricting no matter what will lead to more litigation, but Charles said if the voters and courts don’t demand something different from legislators now, it could help stem the tide.

Professor Theodore Shaw, at the UNC School of Law, predicted that the District Court will have a lot to say about North Carolina’s remedial redistricting.

The Director of UNC’s Center for Civil Rights added it’s a strong argument that the Supreme Court’s action this week immediately created a right that needs to be remedied.

“There’s no reason to have an unconstitutional plan stay in place,” Shaw said.

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