The Republicans who rule North Carolina’s General Assembly start the new year riding tall in the saddle – and yes, we can imagine GOP legislators tipping their Stetsons to salute the state Supreme Court, which gave them an early Christmas present that must have made their holidays glow even brighter.
The gift arrived on Dec. 19, in the form of a long-awaited ruling that swept aside challenges to the current district boundaries for seats in the US House, the state House and state Senate.
Those redistricting plans — crafted after the 2010 elections that put Republicans in charge at the Legislative Building and gave them the right to draw new boundaries, in accord with the 2010 census — have helped their party lock in big majorities both in the state’s congressional delegation and in the two legislative chambers.
Elections are bound to have winners and losers, and it’s tempting for the losers to blame a contorted redistricting scheme rather than acknowledge the other kinds of adversity that can make an election go sour.
But any redistricting exercise has to meet standards of fairness under the US Constitution and applicable state laws. When it becomes, as North Carolina’s clearly did, an exercise not only in politicians picking their favorite voters but also in dispatching other voters into a calculated limbo of irrelevance, then that’s a problem that goes to the heart of our representative democracy.
It’s even worse when the voters who are most severely disadvantaged are African-Americans – the same people who over the years have had to endure the harshest forms of discrimination ever to dishonor this country. Their rights are supposed to be protected under the federal Voting Rights Act of 1965, which bans voter discrimination on account of race, and also under the 14th and 15th Amendments to the Constitution.
How ironic, then, that the redistricting plans that were approved by our state’s highest court actually use the Voting Rights Act as an excuse to undermine the voting power of black residents!
Here’s how it works: The Voting Rights Act requires election districts to be drawn so that minority voters, assuming they can be grouped in a rational manner, have a fair chance to elect candidates of their choice.
The supposition is that black voters, for instance, deserve a sporting chance to elect black candidates, who may after all most closely share their priorities and concerns. But if districts are drawn so that African-Americans are packed into their own districts, then their overall political influence can be undermined even while they’re claiming some seats as their own.
The legislature in its Republican wisdom devised redistricting plans – using today’s sophisticated map-making software – that created a category of districts where black voters were in the majority (at least 50 percent plus one). They figured that if these black-majority districts covered a percentage of voters roughly equal to the percentage of blacks in the state’s population, 21 percent, then they would be on solid legal ice.
The Supreme Court bought that theory, accepting the argument that otherwise, the state would be vulnerable to claims of discrimination under the Voting Rights Act.
In reality, however, creating those black-majority districts meant that the other, adjacent districts would be made up heavily of white voters. Since those “white” districts are guaranteed to constitute a legislative majority, the interests of many black voters are doomed to be dismissed by victorious white candidates – many of them conservative — for whom blacks’ concerns amount to less than a hill of beans.
Republican lawmakers of course deny any intent to discriminate on the basis of race. The people whom they really want to discriminate against, they’d argue, are Democrats – and the courts have allowed redistricting to reflect the ongoing tug of war over partisan advantage.
But it’s no surprise to anyone that black voters in today’s America tend to favor Democratic candidates. After all, the Democratic Party spearheaded the civil rights reforms of the mid-20th century. It has been the party more closely identified with opportunity and uplift for ordinary citizens, including those on the social margins. It is the party of the first black president. Republican redistricting schemes may be designed ultimately to boost GOP fortunes at Democrats’ expense, but it’s no coincidence that black voters especially are made to pay the price.
Out of those concerns arose legal challenges by groups such as the NC NAACP and the Southern Coalition for Social Justice. The plaintiffs had to contend with the fact that President Obama’s Justice Department had OK’d the redistricting plans as complying with the Voting Rights Act – perhaps looking narrowly at the number of black-majority districts that were created. Then, a panel of trial court judges in 2013 approved the plans as well.
The Supreme Court heard arguments early last year. Months rolled by, and last fall’s elections came and went – with the contested district boundaries remaining in effect. Then, as the holiday season was about to peak, the high court spoke.
Court’s green light
In a lengthy opinion from Justice Robert Edmunds, the court concluded that the legislature had not engaged in illegal racial gerrymandering. Yes, voters’ race had been taken into account, but mainly to ward off potential challenges under the Voting Rights Act.
As to the allocation of Democratic voters, many of them black, in an effort to sustain Republican power, the court declared, “Where racial identification correlates highly with party affiliation, placing additional Democratic voters in districts that already vote Democratic is not forbidden as long as the motivation for doing so is not primarily racial.”
Edmunds wrote for a court majority that included three other Republican justices – Mark Martin, Barbara Jackson and Paul Newby (a fourth, Robert Hunter, did not participate in the case). The court’s two Democrats at the time, Cheri Beasley and Robin Hudson, filed a strongly worded dissent written by Beasley. She faulted the majority for going along with the trial court, saying that the trial judges’ findings should have been vacated and sent back for further review under correct standards of legal interpretation.
In particular, Beasley said the judges should not have agreed that the black-majority districts met the “strict scrutiny” standard required by the US Supreme Court when race is a dominant factor in setting district boundaries.
To meet that standard, the redistricting plans should have been narrowly tailored to serve a compelling state interest. They weren’t, Beasley asserted. That is bound to be a linchpin of the further appeals that plaintiffs in the case say they will lodge.
Beasley included this pointed warning: “The majority’s departure from this Court’s usual course of adherence to our settled principles of appellate review could create a stain of suspicion among the citizens of the state regarding the actions of their elected officials and bodies of government—both legislative and judicial.” It’s a warning that goes to the heart of concerns about legislators who will bend the rules to boost their chances at the polls and about judges who may be inclined to look the other way.
Ripe for reform
In the last two elections, Republican candidates have enjoyed success well outstripping their numbers among the voting public. No doubt that’s a sign that their tax- and budget-cutting, smaller-government policies have struck a chord with many – to the dismay of groups such as the Council of Churches that favor a more assertive government role in confronting North Carolina’s educational, health and economic challenges.
But GOP majorities also signal the cynical effectiveness of the party’s redistricting methods, which have left the state with many non-competitive legislative seats and have scrambled lines of accountability between elected politicians and their constituents. With boundaries in many cases twisting wildly across county and even precinct lines, districts no longer consist of coherent communities of interest. There’s seldom an apparent rhyme or reason as to why a given neighborhood is part of the district to which it’s assigned, and who represents whom can be a vexing mystery.
Political sins of this sort weren’t invented by Republicans, of course. Democrats have indulged in their share of partisan gerrymandering, although in North Carolina the recent Democratic record, when Democrats held the reins of power, was not as extreme.
It’s in recognition that the redistricting game can be followed destructively out of the window, and also that what goes around usually comes around, that some legislators from both major parties favor a new approach. A bill that would have redistricting plans prepared by the General Assembly’s nonpartisan staff was approved by the House in 2011, only to die in the Senate.
Supporters of reform such as Rep. Paul Stam of Apex, the House speaker pro tem, have said that an overhaul of the redistricting process should be undertaken as far as possible in advance of the next census, when neither party can be confident what the partisan landscape will look like. That makes sense. Legislators now preparing to return to Raleigh for another months-long stint of law-making would be smart to seize the moment – with the health of Tar Heel democracy in mind.