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Judge ‘miffed’ lawmakers hired expert to criticize special master rather than help

Stanford Law Professor Nathaniel Persily, pictured left, served as a special master in a North Carolina racial gerrymandering case. (Photo by Melissa Boughton)

Instead of retaining an expert to try and make North Carolina legislative maps better, lawmakers paid $250 an hour to criticize the job of a court-appointed special master.

Legislative defendants in North Carolina v. Covington hired Douglas Johnson, a research fellow at the Rose Institute of State and Local Government in Claremont, Ca., and President of the National Demographics Corporation, in mid-December to “review the special master’s work, report and recommended plans.”

Johnson filed a 30-page report last week with alternative maps to show how the special master, Stanford Law Professor Nathaniel Persily, could have done his job better. He accused Persily of using “an apparent race quota” and explained his findings in detail during a Friday hearing at the federal courthouse in Greensboro.

Phil Strach, who represents the legislative defendants, relied heavily on Johnson’s report to make an argument against the court implementing Persily’s redrawn legislative districts. However, when asked whether Johnson’s maps could be used instead, Strach said no — they were only offered as evidence to show Persily’s improper use of race.

“I’m sort of miffed,” replied 4th U.S. Circuit Court of Appeals Judge James Wynn. “Why didn’t Dr. Johnson get this information to Dr. Persily to help him draw the maps?”

Wynn admonished the legislative defendants for the delay in presenting information that could have proved helpful, and said the court could have drawn its own maps but hired a special master as a courtesy.

“You’ve been asked over and over again to give input,” he said. “Where was he during the trial? Why wasn’t this expert called? He’s not been given an opportunity to help; he’s only been given an opportunity to criticize. How is that helpful to the court?”

Strach refused to answer and said they’ve responded to that question in briefs filed with the court.

Friday’s hearing is likely the last at the federal district court level. The three-judge panel, which also includes U.S. District Judges Catherine Eagles and Thomas Schroeder, is expected to make a decision soon about whether to enact the special master’s plans.

The legislative candidate filing period runs from Feb. 12 through 28. Strach and Alexander Peters, attorney for the state and the Board of Elections and Ethics Enforcement, pointed out Friday that some candidates won’t know which districts to file in without a court decision. It also takes a few weeks to assign voters to their districts.

Eagles said she doesn’t expect the panel to delay. At least two GOP lawmakers have already said they plan to appeal to the U.S. Supreme Court if judges enact Persily’s maps.

Alison Riggs, attorney for the plaintiffs in the case, urged the court to enact Persily’s maps, noting that he corrected the state and federal constitutional violations they found in lawmakers’ remedial maps.

Strach argued that lawmakers followed the court’s order in drawing remedial maps and that there was no evidence that race predominated during their process. He said the maps lawmakers enacted should stand.

Peters did not take a position on behalf of the state or the Board.

Persily didn’t have to answer any direct questions from Riggs or Strach but addressed some of their requests during a presentation at the start of the hearing. He said his maps were superior to the legislature’s and that he worked to accommodate lawmakers’ complaints.

For a full play-by-play of what happened Friday in court, check NC Policy Watch on Monday.

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