A decision was not reached Thursday in a federal racial gerrymandering case about whether or not proposed remedial legislative maps would be approved, but a three-judge panel indicated it could still appoint a special master to take on the task of drawing constitutional districts.
“A court does not want to get in to policy decisions,” said Judge James Wynn, of the 4th Circuit Court of Appeals. “A court does not want to pick sides.”
He was speaking to Anita Earls, Executive Director of the Southern Coalition for Social Justice and lead attorney for the plaintiffs in North Carolina v. Covington .
“Why would we pick yours?” Wynn asked of alternative maps the plaintiffs presented to the court.
If the court appointed a special master to redraw the maps, perhaps they could stay out of the fray, he added.
Earls, who along with Edwin Speas, challenged specific districts within North Carolina lawmakers’ new proposed maps, did not object to Wynn’s line of questioning and said the only reason she would point to for adopting the plaintiffs maps was time — districts need to be implemented quickly.
“Well, we might be able to have some say in that too,” Wynn responded.
The judges also issued an order  a short time after Thursday’s hearing that requires all parties in the case confer with each other and submit the names of at least three people who are qualified to serve as a special master.
The order states it is an effort to avoid delay in the event the plaintiffs’ objections are sustained. The list of names is to be filed by Wednesday and if the parties can’t agree, the judges can select a special master without their input, the order states.
To use race or not to use race?
Earls, Speas and Phil Strach, who represents the legislative defendants in the case, got into the weeds of several technical legal arguments Thursday with regard to the redistricting process.
One of the more contentious points, unsurprisingly given the nature of the case, surrounded race.
Earls and Speas contended that despite their repeated claims about not using race, two Senate districts and two House districts remained racially gerrymandered and looked strikingly similar to the districts already ruled unconstitutional.
“This is not a contest between the plaintiffs’ map and the 2017 proposed remedial maps,” Earls said.
She added that the question judges have to answer and the defendants have the burden to prove is whether or not the proposed maps cured the constitutional violations in the 2011 legislative maps. She cited multiple reasons for why they did not, including a combination of Black Voting Age Populations (BVAP), split precincts and shapes.
“To cure a racial gerrymander, the answer is not to say, ‘oh, we’re not going to use race at all,’” Earls said.
U.S. District Court Judge Thomas Schroeder asked several questions about just how the court was supposed to prescribe that the legislature apply racial data to the mapmaking process.
“In what way is a remedial map to be drawn considering race?” he asked. “I’m having trouble understanding how they’re supposed to take into account to fix a problem where they took race into account.”
Earls contended that the only way to ensure that a racial gerrymander was corrected was to use race.
Strach maintained that adopting an overall policy on race is what the legislature was criticized for, so they did not consider race at all this time around.
The judges questioned legislators’ use of Tom Hofeller to draw the new maps since he drew the unconstitutional maps in the first place. They wondered whether his knowledge of the racial makeup from districts in the first mapmaking process bled over into the new process.
Strach told the judges that Hofeller did not even have race data on his computer that he used to make the maps.
“How do we know that?” asked U.S. District Court Judge Catherine Eagles.
Strach replied, “just looking at the districts on their face.” He added that there was no evidence that race was used, and he and Wynn argued some about whether or not some of the districts in the new maps looked like the districts in the old maps.
“How do we ignore virtually what we see,” Wynn asked of the similar districts.
‘Caught in the middle’
There was also some discussion about the correlation between race and political data and several questions about whether the use of political data or incumbency protection could serve as a proxy for race given how it was used in the initial maps, under which lawmakers were elected.
Strach said there was no evidence to analyze the issue because it was not known if the racial gerrymanders from 2011 were the reason any lawmakers were elected.
Earls offered two lower court opinions that showed lawmakers should elevate correcting constitutional violations over traditional redistricting criteria in remedial case context.
Another question judges might undertake before making a decision is whether or not the General Assembly had the authority to change districts that were not ruled unconstitutional or bordering those areas.
The state constitution prohibits mid-decade redistricting unless authorized by a federal court.
Earls challenged some of the districts within Wake and Mecklenburg counties. She argued that some districts not bordering unconstitutional areas were unnecessarily redrawn, meaning lawmakers exceeded the authority given to them by the federal court and therefore violated the state constitution.
Strach said the issue was one for the state courts to decide and that the federal judges did not have the authority to take it on.
When Earls pointed out that the plaintiffs notified lawmakers about the state and federal violations in their proposed maps during the legislative process, Strach said the alternative maps had so many double-bunked candidates, they couldn’t take them seriously.
The judges also pointed out that there were some arguments in the legislative record that the plaintiffs’ maps were more favorable to Democrats.
Earls responded that when racial gerrymandering is used to the extent it was in 2011, anything different would have political consequences for the party who benefited from the violation.
Wynn agreed. Schroeder said the appearance of political contests is an uncomfortable place for judges to be.
“I feel caught in the middle sometimes in cases like this, because there are political issues that we as judges don’t want to be involved in,” he said.
House Minority Leader Darren Jackson (D-Wake) attended the first half of Thursday’s hearing. A staff member from David Lewis’ (R-Harnett), who was co-chair of the redistricting committee, office also attended the hearing.
Rep. Pricey Harrison (D-Guilford) was also in attendance. She said after the hearing that she got the sense that the judges were skeptical of lawmakers’ new districts.
“It seems the cure is inadequate and it’s my hope they’re going to rule that way soon,” she said.
Harrison’s district is one that is still alleged to be racially gerrymandered — the BVAP was raised in the new proposed maps from over 50 percent to over 60 percent.
She guessed that based off the judges questions, they might be inclined to appoint a special master, an outcome she would be more than OK with.
“I welcome having a completely independent person getting involved no matter how the chips may fall,” she said.