RALEIGH, N.C. — After state lawmakers’ two recent attempts at drawing new congressional maps for North Carolina were both found to be unconstitutional, a bipartisan group of retired judges and academic experts were tapped to draw the new political districts where candidates for the U.S. House will run in this year’s elections.
Their version of the congressional map will be used in the 2022 election — pending possible action from the Supreme Court, which Republican lawmakers asked for on Friday.
The new court-approved congressional map has more competitive seats than the legislature’s first map, but fewer competitive seats than the legislature had suggested in its redraw. It would also make it less likely for Republicans to win a lopsided number of seats.
So how were the people who drew the maps chosen? And why did they make the decision to favor more proportional and predictable results, rather than more competitive seats?
Some of the detailed answers to those questions remain a mystery. The team of academics and ex-judges involved in drawing the maps are all currently banned by court order from talking about their work, publicly or privately.
But the decision wasn’t made in complete secrecy, either. The court order in the case does lay out some of the reasoning and mathematical tests behind the decisions made by the team of outside experts — decisions that were then endorsed by the judges overseeing the case.
Political lean of the new maps
The new congressional map the court approved keeps the best-case scenario for Democrats unchanged, but scales back the best-case scenario for Republicans.
The initial Republican-drawn map would have allowed Republicans to win as many as 11 of 14 seats, and limited Democrats to no more than four even if they won the statewide vote by a significant margin — one reason why it was ruled unconstitutional.
GOP leaders then proposed a new map with six safe Republican seats, four safe Democratic seats and four highly competitive seats. So while Democrats could have won an 8-6 advantage in that version, it would have also remained possible for Republicans to win 70% of the seats (10 of 14) even with around 50% of the vote.
The outside experts’ map, on the other hand, likely limits either party’s best-case scenario to an 8-6 advantage if their party wins a small majority of the statewide vote. Small majorities are the norm in North Carolina, where the last four presidential elections all came down to less than 4% of the vote and other statewide races have gone into recounts.
Rather than having four competitive districts, the map the court chose has six safe seats for each party, one seat that leans Republican but might flip in a good year for Democrats, and one highly competitive seat that could go either way.
The judges ruled that it was more fair to all the voters of the state than what the legislature passed, and “is consistent with (state law) and is consistent with the North Carolina Constitution and the Supreme Court’s full opinion” — a reference to the state Supreme Court ruling that struck down the legislature’s original maps and set new ground rules for fairness in districts.
Irving Joyner, a law professor at N.C. Central University who has long been involved in redistricting and other voting rights cases with the North Carolina NAACP, said the map the court picked isn’t perfect but does seem more fair than the other options passed by the legislature.
“From my point of view, competitiveness is something that is desirable,” Joyner said — but not if it leaves the door open for disproportionate representation, and maps that “take strength from some and give it to others.”
Why keep some maps but not others?
The outside experts reviewed all three GOP-drawn maps to replace the ones that had been ruled unconstitutional — for Congress, N.C. House and N.C. Senate — but in the end decided only the congressional map was still too skewed.
The judges said they accepted the maps for N.C. House and N.C. Senate because, if they did have a slight Republican skew, it could be explained by “political geography.” That phrase refers to the fact that Republicans and Democrats often tend to get around the same number of votes statewide, but Republican voters are spread out geographically and Democrats are more clustered in a few areas.
The legislature’s proposed congressional map, on the other hand, was skewed to the right to such an extent it couldn’t be explained by political geography, the court ruled.
Even as GOP leaders appealed the ruling on the congressional map, Senate leader Phil Berger said it was important to note that the court accepted two of the three sets of districts that he and his fellow lawmakers redrew.
“The General Assembly’s remedial legislative maps met all of the court-mandated tests and were constitutionally compliant,” Berger said in a written statement. “A bipartisan panel of special masters affirmed that.”
Joyner said he still has some worries about the new maps. But he acknowledged the legislative maps do appear to endanger fewer Black politicians than the original versions. The News & Observer previously reported those original maps could’ve put one in every four Black state legislators at risk of losing his or her seat. The new legislative maps are at least an improvement, he said, as is the congressional map the special masters drew.
“I think it’s about the best that we could get right now,” Joyner said.
Who created these election districts?
In a situation like this when the legislature’s work is found to be unconstitutional, lawmakers are guaranteed to get a second chance but aren’t guaranteed that their second attempt will be accepted. The judicial system hires outside experts — known in legal parlance as “special masters” — to analyze the new maps and, if needed, draw their own.
In this lawsuit, based on recommendations from the special masters, the judges ruled in favor of the legislature when it came to its replacement maps for the N.C. House and Senate. But they ruled against the legislature’s new congressional map, so the special masters drew that map instead.
The special masters were former Republican N.C. Supreme Court justices Bob Edmunds and Bob Orr, as well as Thomas Ross, a Democrat and former trial court judge who also served as president of Davidson College and later as president of the 16-campus UNC System. They also hired several technical experts from universities around the country to help with the details.
The three weren’t picked by the N.C. Supreme Court, which has a Democratic majority, but rather by a Republican-majority panel of trial court judges overseeing the case — who were themselves picked by N.C. Supreme Court Chief Justice Paul Newby, a Republican.
While the new congressional map was drawn by a mostly conservative group of ex-judges, who were hired by a Republican-majority panel of current judges who were themselves chosen by the state’s most powerful Republican judge, Republican lawmakers said it was anti-GOP political bias that led to the court not picking their congressional map.
N.C. House Speaker Tim Moore released a fiery statement after the ruling. He accused the special masters of being “unelected, partisan activists” and accused the judges themselves of violating the constitution.
“Let me be clear: This court has effectively taken a hammer to our state constitution and the rule of law,” Moore said.
Because of the court’s decision to pick the special masters’ map instead of the legislature’s proposal, Moore likely lost an opportunity to run for Congress. Both versions of the congressional map his colleagues in the legislature drew had an incumbent-free seat around his home in Cleveland County, which he confirmed he was thinking of campaigning for. But in the map the court picked in the end, Cleveland County is instead in the district currently represented by Republican Rep. Patrick McHenry.
Politics among the special masters?
While Republicans said the special masters who drew the maps had pro-Democrat partisan biases, campaign finance records show two of the three — Orr and Edmunds — have given thousands of dollars to GOP candidates and causes since the 1980s. Both have also run multiple successful statewide political campaigns of their own with the Republican Party’s backing.
But that doesn’t necessarily tell the whole story. Orr recently and very publicly quit the Republican Party in protest of former President Donald Trump, plus he’s leading an effort to ban Republican Rep. Madison Cawthorn from running for election at all. And Ross is a longtime Democrat who, in contrast to Orr and Edmunds, has given thousands of dollars to Democrats over the decades.
So on paper the special masters were one Republican (Edmunds) one Democrat (Ross) and one unaffiliated voter (Orr).
It’s unclear exactly how the GOP-majority panel overseeing this lawsuit decided to pick them. The judges asked both sides in the case for suggestions, and got a dozen or so names in return. Nobody suggested any of the three men who were ultimately picked. It’s possible the judges did that on purpose, so they couldn’t be accused of favoring one side or the other. But the court gave few details in explanation.
“The court is satisfied that these three former jurists of our appellate and trial courts have the requisite qualifications and experience to serve as special masters in this matter, have no apparent conflicts of interest, and have the time available,” the court order appointing them said.
In addition to criticizing the special masters, the legislature also tried to get two of their academic assistants thrown off the case. Princeton professor Sam Wang and Brigham Young University professor Tyler Jarvis emailed technical questions to some of the expert witnesses for the challengers in the case. Republicans said the court had banned such communications, and called the emails a conspiracy to undermine them.
But the judges dismissed those concerns and let Wang and Jarvis stay involved, deciding that nothing underhanded was going on.
Any conflicts of interest?
The court’s decision to hire three public figures who have remained active in state politics meant there would be some questions of bias or conflicts of interest one way or the other. None of the men were allowed to respond to any questions, whether about their work on the maps or whether that might have been influenced by their own political histories.
But the judges who hired them had no concerns, and said so publicly.
The three-judge panel briefly detailed some of the possible conflicts they have — Edmunds’ law firm is involved in numerous cases involving various facets of state government, and both Orr and Ross have advocated for redistricting reform — before concluding that none of that led to concerns that they’d be too conflicted to do the work.
The judges seem to not have viewed other topics as even worth mentioning, like Orr’s battle against Cawthorn that has made national news. All of the special masters have been elected to office and have given money to politicians who are directly or indirectly involved in the redistricting case.
That includes current Supreme Court justices and their would-be opponents, as well as various current lawmakers — and other potential candidates — for both Congress and the state legislature, whose districts they were in charge of deciding whether or not to redraw.
Edmunds gave $200 to N.C. Senate leader Phil Berger, a main defendant in the case, in 2017 and has also given thousands of dollars to various GOP groups around the state — but particularly in Greensboro, where he lives and which was a key area of focus in the congressional map. Ross has similarly given thousands of dollars to various local and statewide Democratic causes over the years. Over a decade ago he also gave to Democratic politicians who were in different roles then but now are directly or indirectly involved in the redistricting case, like $200 to U.S. Rep. Deborah Ross and $500 to Supreme Court Justice Sam Ervin IV.
In 2020 Ross gave $1,000 to Democratic Rep. G.K. Butterfield, who is not running for reelection this year, and Edmunds’ wife gave $250 to Republican Rep. Richard Hudson, who is running for reelection. Edmunds also gave a combined $1,250 in the last two years to Richard Dietz and April Wood, two Republicans who plan on running for the state Supreme Court this year when partisan control of the court will be up for grabs.
Orr has given more than $1,300 to Republican Supreme Court Justice Tamara Barringer over the years, but all of it back when she was a state senator, plus he has given thousands more to various state and local GOP groups over the years. But last year he also gave $250 to Josh Remillard, a Democrat who had been planning on running against Cawthorn, and in 2019 he gave the same amount to Dan McCready, a Democrat, in his ultimately unsuccessful congressional campaign against current Republican Rep. Dan Bishop.
---------
