NC Gerrymandering Trial Begins, Could Have Major Implications For 2020 And Beyond

RALEIGH, N.C. — The lines used to elect members of the North Carolina General Assembly are unconstitutional and should be redrawn before the 2020 elections, an attorney for activists and politicians argued in court Monday.

In 2018, Democratic candidates won more than 50% of the votes statewide for seats in the legislature, said Stanton Jones, who represents the groups and voters challenging the lines. But Republicans still won most of the seats in both the N.C. House and N.C. Senate.

“The simple truth is this: Because of the extreme gerrymandering, Democrats cannot win a majority,” Jones said. “ … These plans are impervious to the will of the voters.”

But Phil Strach, an attorney for the legislature’s Republican leadership, said his side will present evidence that Democrats could have won a majority or even a supermajority in 2018. He said Democrats simply have problems recruiting quality candidates, and want a court to help them over that hurdle under the guise of this lawsuit.

He also said that since the North Carolina constitution specifically gives redistricting power to the legislature, it shouldn’t even be up to a court to step in and dictate how redistricting should or shouldn’t work.

“What the plaintiffs here really want is for this court to undemocratically change the redistricting process and remove it from the legislature,” Strach said.

It was the first day of what’s expected to be a lengthy trial debating the merits of lines approved by the Republican-led legislature in 2017, to replace a previous set of lines from 2011 that had been ruled unconstitutional due to racial gerrymandering.

The arguments in this case, however, are likely to focus less on racial disenfranchisement and more on purely political disenfranchisement.

A separate lawsuit recently challenged North Carolina’s districts for seats in the U.S. House of Representatives. Republican lawmakers won that case last month, when the U.S. Supreme Court ruled that the lines could stay in place. But this case is in state court and challenging only the state legislative lines, so its outcome will not necessarily be dictated by that recent Supreme Court ruling.

The challengers include the state Democratic Party and watchdog group Common Cause. Jones said the lack of action by the Supreme Court makes it even more important that the state courts step in, citing the well-known Supreme Court ruling that states are the laboratories of democracy.

And especially in North Carolina, where the governor is legally forbidden from vetoing redistricting plans, Jones said, “only the courts can end this cycle and ensure free and fair elections in 2020.”

The focus on 2020 is important not just for that year’s elections, but potentially for a decade afterward. Under current state law, whichever party controls the legislature after the 2020 elections will be in charge of redistricting for the next decade, using new data from the 2020 Census.

A key point in this case had been whether evidence would be allowed from the formerly secret files of Republican redistricting expert Tom Hofeller, who drew the lines used in North Carolina and other Republican-held states. Hofeller’s files also showed he was involved in the Trump administration’s attempt to add a citizenship question to the Census, according to court filings in other cases, which claim Hofeller saw that as an opportunity to help with pro-Republican gerrymandering across the country.

In this case, legislative leaders had fought to keep Hofeller’s files out of court. The challengers have claimed the files will show Hofeller broke the rules when drawing these maps, including by secretly using racial data.

Jones, the Common Cause attorney, said his side plans to present numerous pieces of evidence at trial. He said, “if there were any lingering doubt, we will present direct evidence from Dr Hofeller’s own files … that partisan gain was his singular objective.”

But Strach, the Republican lawmakers’ attorney, downplayed the importance of anything from those files. He said that Hofeller is simply being used as a bogeyman, since he died in 2018 and can’t be here to testify on his own behalf. Strach also previously argued, in efforts to keep Hofeller’s files out of this case, that anything found on Hofeller’s personal computers regarding the North Carolina maps had been done simply as a hobby, and not as an official act for the legislature.

“Anytime you hear the name Hofeller, know that it is a sideshow by plaintiffs attempting to distract from the weakness of their case,” Strach said.

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