Saturday, December 9, 2023

Could a recent ruling in Alabama have an effect on NC’s congressional map?

The map from the 2022 election which will be redrawn by the GOP this year due to the overturning of state Supreme Court ruling; the maps are still being considered by the U.S. Supreme Court. (Courtesy Five Thirty Eight)

A court case playing out in a Southern state could affect how future congressional maps affect the outcome in the 2024 election.

North Carolina is about to put out a new map redrawn by its conservative-leaning majority, while in Alabama a recently redrawn map, also done by the GOP, was struck down by the U.S. Supreme Court.  

How one will affect the other is a question on many voter’s minds. 

Alabama’s map was struck down by the Supreme Court for racial gerrymandering, while North Carolina state’s highest court reversed course in April on a 2022 ruling that upheld a partisan gerrymandered map done by the GOP.

While partisan gerrymandering and racial gerrymandering are two separate topics, they can become the same.

“Even if a government is simply focusing on partisanship, a legislature could still violate the statute because it’s harming the voting rights of Black people,” Southern Poverty Law Center attorney Jack Genberg told Port City Daily Tuesday. 

The statute he was referring to is Section 2 of the Voting Rights Act of 1965, which prohibits discriminatory voting practices on the basis of race, color or language 

Partisan gerrymandering is when a state legislature draws congressional maps to ensure one party gains more seats and stays in power. Racial gerrymandering occurs when that group draws lines with the intent to disenfranchise voters based on color or language population.

While racial gerrymandering is outlawed by Section 2 of the VRA, courts have mainly allowed partisan gerrymandered districts to stand.

Since African-Americans have historically voted for Democrats, a partisan gerrymander can also be a racial gerrymander. For instance, a state could draw a map saying it’s doing it on a partisan basis, not based on race, but it ends up disenfranchising a group of voters. This would lead to a Section 2 VRA violation, regardless of intent.

UNCW political science professor Nadine Gibson said, though the two forms of gerrymandering are separate, everyone can “read between the lines.” But when it comes to the law, it’s more nuanced.

“Most people can put two and two together,” she said. “In the courts, however, you have to prove racial gerrymandering exists. We know certain communities tend to vote a certain way. If you look at race and party affiliation, you will see a strong overlap.”

According to the Brennan Center for Justice, partisan gerrymandering can be based on race, especially in Southern states due to historical segregation. Black people in these states are usually packed into separate neighborhoods, even entire towns. Because these communities are so close to each other, it is easier for legislators to “pack” and “crack” those neighborhoods to lessen voting power.

“Packing” means drawing electoral districts to consolidate the population of a constituency into a small number of districts. It is the opposite of “cracking,” which splits a community across a number of districts.

Prior to the Supreme Court’s decision in Allen v. Milligan, Alabama legislators created a 6-1 congressional map favoring Republicans, devising one large majority-Black Democratic district in the western part of the state, which is considered “packing.” African-Americans make up 27% of Alabama’s population, according to the U.S. Census Bureau.

In a surprising 5-4 ruling, the high court invalidated the congressional maps because it violated Section 2 of VRA. 

Allen v. Milligan was a closely watched case because, even though states no longer need federal permission to pass election laws and maps, checks and balances are still needed once those measures are passed.

“This ruling reaffirms the central notion that the VRA is important,” Genberg said. “Voting rights of people of color should not be diluted.”

Over the last 30 years in North Carolina, redrawn maps have been tied up in courts one way or another, also accused of cracking and packing.

In 1991, the First and 12th congressional districts were litigated five times before they were finally invalidated by a 5-4 decision by the Supreme Court in Cooper v. Harris

Prior to 1991, NC only had one Black-majority voting district. The justice department ordered the state to create a second. 

When it devised the 12th congressional district in 1993, the Department of Justice ruled the map violated the VRA because the districts piled Black voters into two small areas, while taking them away from districts where their voters might have made a difference.

Almost 30 years later, the courts were involved again over the issue of partisan maps drawn by the GOP in North Carolina. It’s still playing out in the U.S. Supreme Court. 

‘This is obviously a political move’

During the 2022 midterm elections, Democratic-leaning state court judges invalidated maps the Republican-dominated General Assembly outlined in North Carolina in Harper v. Hall.

As of April this year, the ruling was overturned after conservative justices were elected in last year’s midterms to secure the majority. The courts ruled 4-3 in favor of the General Assembly.

The maps were drawn in a 10-4 split in 2021. 

Maps are changed every 10 years due to population shifts. A 14th congressional seat was picked up in the 2020 Census. It resulted in the state adding more than 900,000 people over the last decade.

The North Carolina League of Conservation Voters, on behalf of a group of voters, filed a lawsuit regarding the maps in April 2021. The complaint claimed the gerrymander of seats violated the North Carolina and U.S. Constitutions because the maps weakened minority voting power and benefited white voters and Republicans.

In December of 2021 North Carolina’s state court ordered the primaries be delayed by two months to allow for a decision in Harper v. Hall to allow for new maps to be drawn by the General Assembly.

The revised maps were still deemed unacceptable. Two months later, in a 4-3 split decision, the North Carolina Supreme Court threw out the General Assembly’s 10-4 map. 

The same month the Democratic-dominated state court drew its own maps for the 2022 elections. It resulted in an even 7-7 split among Democrats and Republicans and was used in U.S. House elections last November.

In January of 2023, the General Assembly, led by House Redistricting Chairman Destin Hall (R-Caldwell) and Senate Redistricting Committee Co-Chairs Ralph Hise (R-Madison), Warren Daniel (R-Burke, McDowell) and Paul Newton (R-Cabarrus), immediately asked for a review of the voter ID law and the congressional maps.

The state Supreme Court agreed to. 

According to Gibson, it is a highly unusual move for justices to take up cases that have already been ruled upon, as done two months ago.

“Courts tend to stick with precedent, but this was obviously a pretty political move,” Gibson said. 

In the dissenting opinion from April’s ruling, the state court’s two Democrats said they fulfilled their sworn duty to uphold the state constitution and guarantee free and fair elections. They said Republicans on the court ruled on the case based on politics.

“This decision is now vacated by a Republican-controlled Court seeking to ensure that extreme partisan gerrymanders favoring Republicans are established,” wrote Justice Anita Earls, who was joined in her dissent by Justice Michael Morgan.

The conservative judges had a different take.

“This case is not about partisan politics but rather about realigning the proper roles of the judicial and legislative branches. Today we begin to correct course, returning the judiciary to its designated lane,” as indicated by the majority opinion written by Republican chief justice Paul Newby.

At the center of the complicated case is a once-fringe and widely disputed idea known as the “independent state legislature theory.” This theory maintains state legislatures have the power under the U.S. Constitution to determine how federal elections are run, without oversight from state constitutions or courts.

The state court’s decision opened the door for the General Assembly to draw a new map at its discretion. The redistricting plan could reach committees by later this summer.

Nevertheless, North Carolina’s maps are still being debated by the U.S. Supreme Court. The high court took the case in June of last year after the General Assembly appealed the state court’s ruling striking down the gerrymandered districts.

It is unknown how the state ruling could affect the federal case — even though the fate of elections nationwide could be upended should the high court rule the maps are valid.

“Because the [U.S. Supreme Court] has to look at the consequences of the North Carolina case, the high court might not want to touch this case since the state Supreme Court has already ruled on it,” Gibson said. “Partisan identification is not a protected class like race or gender – and, historically, the Supreme Court has stayed away from these cases.”

Both forms of gerrymandering push the boundaries of what average citizens believe is acceptable — a problem throughout American history between both parties, according to Gibson.

“It’s not going away anytime soon, unfortunately,” she said. “At the end of the day, the U.S. Supreme Court has to decide these cases, and that’s bad for the country as a whole.”

The high court’s ruling in Alabama’s Allen v. Milligan could provide a road map for challenging other state’s redistricting plans. According to the University of South Florida, district lines in Louisiana, South Carolina and Georgia could be altered almost immediately.

It may include North Carolina, which has an African-American population of 22% and a Hispanic population of 10%, according to the Census.

The ruling saved at least one Democratic seat in Alabama.

The new GOP map could make at least four Democratic seats immediately vulnerable, including the brand-new 14th district, located in the Charlotte area. Other vulnerable districts include the sixth in the Greensboro area, represented by Kathy Manning; the 13th in the Raleigh area, represented by Wiley Nickel; and the first, covering nearly 20 counties stretching from the Virginia border to just outside Durham, represented by Don Davis.

Davis was originally considered one of the most endangered House members in the country. However, due to the U.S. Supreme Court’s ruling in the Alabama case, the first-term Democrat could likely keep his seat, even after the new maps are drawn.

Regardless of how the redrawn map plays out, Gibson expects another legal challenge on the horizon.

“There will be a group waiting to make a Section 2 claim, regardless of what the map looks like,” she said. “Republicans in the General Assembly now have a mandate to do everything they want to do now, because they have a supermajority in both chambers and control of the courts.”

Port City Daily reached out to all House and Senate representatives in New Hanover, Pender and Brunswick counties for input; no one responded by press.

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Shea Carver
Shea Carver
Shea Carver is the editor in chief at Port City Daily. A UNCW alumna, Shea worked in the print media business in Wilmington for 22 years before joining the PCD team in October 2020. She specializes in arts coverage — music, film, literature, theatre — the dining scene, and can often be tapped on where to go, what to do and who to see in Wilmington. When she isn’t hanging with her pup, Shadow Wolf, tending the garden or spinning vinyl, she’s attending concerts and live theater.

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