This article first appeared at American Lens on December 5, 2017.
This article and related previous articles are being republished here as the redistricting legal battles in NC continue.
Nathan Persily, the Special Master forced on North Carolina by a three-judge panel in the ongoing Covington v. North Carolina case over redistricting, has produced a “plan” and changes to the maps already drawn in August by elected NC legislators.
The three-judge panel consists of Judge James Wynn of the 4th U.S. Circuit Court of Appeals and Judges Catherine Eagles and Thomas Schroeder of the U.S. Middle District of North Carolina. This same panel has not yet to ruled on maps the lawmakers drew in August but went forward with imposing the Special Master on the state anyway.
Persily Special Master Order – Violation of State Sovereignty
The original order for a Special Master, delivered by Judge Eagles, only gave the defendants 2 days to reject the court’s choice of Nathan Persily as a Special Master. The extremely short time frame was met by strong criticism from legislators in charge of the redistricting process.
Rep. David Lewis and Sen. Ralph Hise reacted to the Special Master assignment in a joint press release, “It is an outrageous and extraordinary violation of the principles of federalism and our state’s sovereignty.”
The districts in question are 21 and 28 in the Senate and 21, 36, 37, 40, 41, 57, and 105 in the House. The court’s Special Master order states these specific districts, “fail to remedy the identified constitutional violation or are otherwise legally unacceptable” yet the court gave no explanation to support this claim.
Reactions and Race-Based Redistricting
The North Carolina Democratic Party’s Chairman, Wayne Goodwin, released the following statement on the release of Special Master Persily’s December plan and maps:
“The independent, non-partisan special master had one task – to fix Republicans’ unconstitutional racial gerrymander after Speaker Moore and Leader Berger refused. NCDP applauds the special master for doing just that, and for giving voters in the affected districts a chance to pick their representatives again instead of the other way around. Republicans made this bed and now they must lie in it, and their efforts to delegitimize the special master and our judicial system are dangerous and destructive.”
NC Legislative leaders responded that ‘their worst fears about these maps had been realized’ and charging that the courts were legislating from the bench.
“Earlier this week, the (Raleigh) News & Observer analyzed the original maps drawn by the so-called ‘special master’ and reported those maps would already make it easier for Democrats to defeat Republican incumbents,” said Rep. Lewis and Sen. Hise in a statement.
“By making many changes Democrats demanded, Mr. Persily has confirmed our worst suspicions: this entire ‘judicial process’ is little more than a thinly-veiled political operation where unelected judges, legislating from the bench, strip North Carolinians of their constitutional right to self-governance by appointing a left-wing California professor to draw districts handing Democrats control of legislative seats they couldn’t win at the ballot box,” the Lewis/Hise statement said.
Special Master Nathan Persily’s report contends that his maps will address, “all of the constitutional infirmities the Court has identified in the plans enacted by the North Carolina General Assembly in 2017.” Persily wrote in his report that, “plan is inoculated against the kind of attack that the legislative defendants seek to lodge with respect to racial predominance,” and that he focused on “race-neutral criteria.”
Persily as Special Master was ordered on October 26th. Within a few weeks, on November 13th, he produced new, albeit apparently incorrect, draft maps:
The incredibly quick turn around time and production of Persily’s draft maps has not been questioned by media and likely won’t be.
It is not immediately clear how many changes there are between the early November draft maps and the December 1st maps.
What is clear is that Persily has relied on racial data, specifically black voter data, in both his draft maps and in the December maps. A previous ruling in the Covington case admonished the NC General Assembly map makers for relying ‘too heavily’ on race in maps drawn prior to August 2017. The 2017 August maps drawn by North Carolina elected officials took that part of the ruling into account and did not rely on racial data.
The three-judge panel will meet next on January 5th in Greensboro before a final decision is made on whether or not to adopt the Special Master’s changes. That meeting will come just 5 weeks before candidates will begin filing for the 2018 election.
Speaker of the North Carolina House, Tim Moore, has indicated that the maps would likely be appealed to the U.S. Supreme Court should the court move to adopt Persily’s changes.
Persily – The Draft Maps
According to an analysis done by the News and Observer, the draft maps Persily produced in November, “make it easier for Democrats to defeat Republican incumbents in four House races and two Senate races.” The headline even read, ” Maps drawn to fix NC gerrymandering would help Democrats in these districts.”
According to that analysis, in the Senator Wesley Meredith’s (R-Cumberland County) new district was reconfigured to represent a near evenly split between the party vote result in 2016 of 49% Republican Pat McCrory and 48.8% Democrat Roy Cooper. Meredith’s district had been 53% Republican.
Persily’s draft map shifted Guilford County from slightly Republican-leaning to Democrat-leaning. It also double bunks Democratic Sen. Gladys Robinson and Republican Sen. Trudy Wade. As a result of that double bunking, it forces a new open seat in a heavily Democratic district in Greensboro – which was left untouched by Persily’s draft maps.
Persily’s changes in the House were arguably worse, according to the News and Observer’s analysis. Persily’s maps make significant alterations to the two largest counties in the state by politically tilting them democratic.
Other than shifting Rep. Linda Williams (R-Wake) a bit further Republican than her district was previously, the changes Persily makes in Wake county are beyond a doubt an effort push the county democratic.
Rep. Chris Malone (R-Wake) was put into a district favored Cooper by 1.8 percentage points by Persily’s draft map. The previously drawn district had nearly a tie vote percentage between Cooper and McCrory in 2016.
Rep. Nelson Dollar (R-Wake) had a Republican-leaning district prior to Persily’s draft plan. The Special Master now has his him sitting in a district that Cooper carried by nearly 7 points.
Rep. Andy Dulin (R-Mecklenburg) lands in a new district that Cooper won by 3.5 points. Dulin’s district had leaned Democratic but Persily’s draft made it overtly so.
Rep. Scott Stone (R-Mecklenburg) had a district that previously had been won by 0.4 points by Pat McCrory. Persily’s draft plan puts Stone in a district that Cooper won by 1.2 points.