A short while ago, news broke that the federal judges in Greensboro overseeing the Covington v. North Carolina
gerrymandering case appointed their own special master
to help them determine whether nine redrawn legislative districts pass muster and to redraw them if they don’t. The special master is Nathaniel Persily
, a professor of law at Stanford Law School who has helped several states draw their districts.
You can read the whole order below.
Before we dive in, some background: last year, the three-judge panel unanimously ruled that the legislative districts the General Assembly had passed constituted racial gerrymanders, meaning they diluted the power of the black vote by packing African Americans into some districts, thus leaving others whiter. In June, the U.S. Supreme Court affirmed the verdict
, sending it back to the trial court. The court ordered the legislature to redraw its districts. In August, it did. The plaintiffs in the Covington
case then sued, alleging that nine districts were still racial gerrymanders.
With this order, the trial court seems to agree.
After careful review of the parties’ written submissions, arguments, and evidence, the Court is concerned that 2017 Enacted Senate Districts 21 and 28 and 2017 Enacted House Districts 21, 36, 37, 40, 41, 57, and 105 … either fail to remedy the identified constitutional violation or are otherwise legally unacceptable. In anticipation of the likely possibility of such a finding, in view of upcoming filing period for the 2018 election cycle, and upon consideration of the technical nature of determining an appropriate remedy when district lines are at issue, the Court finds exceptional circumstances and intends to appoint a Special Master.
According to the order, the special master will “assist the Court in further evaluating and, if necessary, redrawing the Subject Districts by developing an appropriate plan remedying the constitutional violations allegedly rendering the Subject Districts legally unacceptable.”
Per the order, the two parties have two business days to object to Persily, if they think he has a conflict of interest. That state will pick up the tab for his work—$500 per hour, which, the order notes, is “half his usual hourly rate.” (You can also read his extensive résumé in the PDF below.)
After the order was issued, Anita Earls, executive director of the Southern Coalition for Social Justice and the lead attorney in the Covington
case, issued a statement, saying, “It has been shown time and again that the state legislature refuses to draw fair districts that comply with the law. Our clients are hopeful that this process will result in fair districts for all North Carolinians.”
The N.C. Democratic Party piled on, too: “This is a stunning rebuke of Republican legislators who refused to fix their racists maps and a colossal political failure from Speaker [Tim] Moore and Senator [Phil] Berger,” party leader Wayne Goodwin said. “They had a chance to fix their maps and doubled down instead—and now the courts will fix it for them.”
Goodwin seems to be getting out in front of his skis, if only a little. While the court did cast doubt on the legality of those two Senate and eight House districts, it has not declared them unconstitutional, at least not yet. And it’s not at all surprising that the court would bring on an expert to help the judges wade through very technical details. So there’s a possibility
that, with the special master’s help, the judges will declare the districts just fine.
But, from reading the order, that doesn’t seem likely. Rather, it looks like the judges are ready to declare those districts illegal and have the special master draw new ones. And that’s where things get interesting. With districts less explicitly designed to help Republicans consolidate their power on Jones Street, it will be nigh impossible for Republicans to maintain their supermajorities in the House and Senate after next year’s elections. And if Democrats can manage to break through in either chamber, that means Governor Cooper’s vetoes will start being worth the paper they’re printed on.
In short, the state’s Dems would start to matter again.
See related PDF