The purest distillation of the nation’s wars over voting rules and legislative gerrymandering is playing out in North Carolina.
A high-profile lawsuit is taking on a voter identification law and other voting changes. There are four other suits challenging North Carolina’s congressional or state legislative districts on racial grounds. Three more allege unconstitutional gerrymandering of local races. And on March 4, a new law changing how judges are elected was struck down by a three-judge state panel.
When voters go to the polls for the North Carolina primaries on Tuesday, any votes for congressional candidates will not count because a federal panel threw out the state’s congressional map in February. A separate congressional primary will be held on June 7.
States around the nation are embroiled in legal battles over voting requirements, district lines and the rules governing elections. But North Carolina feels like ground zero. It is a place where hyperpartisanship, the focus on voting rules after the disputed election of President George W. Bush in 2000 and the Supreme Court’s dismantling of a crucial section of the Voting Rights Act have created an incessant state of combat over the way elections are conducted.
“It’s not a pretty time for democracy in North Carolina,” said Bob Phillips, executive director of Common Cause North Carolina, a nonpartisan government watchdog group.
North Carolina is the rare swing state in the South where Democrats and Republicans are evenly matched, and where major elections are often settled by precious handfuls of votes. Nonetheless, under the 2011 maps drawn by the legislature, Republicans control 10 of the 13 congressional seats.
It is also a state where the memory of Jim Crow lingers – literacy tests were administered to voters here until the 1970s – and where Democrats lost control of both houses of the General Assembly in 2010 for the first time in more than a century.
Now, almost everything about voting in North Carolina can seem as though it is up for grabs.
With early voting already underway, local officials like Michael G. Dickerson, who oversees voting here in the state’s most populous county, Mecklenburg, are doing their best.
He has placed a State Board of Elections news release at polling places advising citizens to “Vote the whole ballot and let us worry about what will count.”
“You freak out about things you can control,” Dickerson said. “This, I have no control over. So you just play the cards you are dealt.”
The stakes are high here and nationwide. The four lawsuits over the Republicans’ 2011 redistricting plans make their case on racial grounds. But some scholars are wondering whether the challenge to the congressional districts, and cases like it, might prompt the Supreme Court to take a new look at blatantly partisan gerrymandering.
Overstepped their bounds?
Advocacy groups and the Justice Department brought the federal lawsuit challenging Republican-backed legislation that established a voter identification provision and cut or curtailed provisions that had made it easier to register and vote. Those provisions were adopted over the last 15 years and championed by Democrats. The Justice Department argues that black and younger voters were especially likely to take advantage of them.
The law included a reduction in early-voting days, the end of same-day registration and preregistration that added teenagers to voting rolls on their 18th birthday. If the case is decided before November, it could have an effect on turnout in a tight presidential contest here – President Barack Obama won North Carolina by a hair in 2008, and lost it by a hair in 2012 – as well as what is likely to be a difficult re-election fight for Gov. Pat McCrory, a Republican.
The local gerrymandering suits claim that Republicans in the legislature overstepped their bounds by restructuring the Greensboro City Council and the board of commissioners and school board in Wake County, whose seat is Raleigh. A panel of state judges recently struck down a new law changing the way state Supreme Court justices are elected; Democrats had said it was an attempt to keep conservative justices in power.
Many on the left acknowledge that Democrats were also guilty of drawing political districts and otherwise tweaking the rules to preserve their advantage while they controlled the legislature. But they argue that the Republicans have taken the practice to the extreme: In 2012, the year after the Republicans’ redistricting, about 51 percent of North Carolina voters chose a Democratic congressional candidate. And yet Republicans won nine of the 13 congressional seats. (The previous delegation had been split 7-6 in favor of Democrats).
Democrats and their allies also view the changes as part of a long, ugly tradition here of disenfranchising African-Americans. But Republicans see a Democratic effort to regain partisan advantage. “If you dig into it, it’s really pretty simple,” said state Rep. John A. Torbett, a Republican. “The Democrats, after being in charge for 140 years, are just really, really unhappy they’re still not in charge.”
The struggle has only intensified since the Supreme Court in 2013 effectively struck at the heart of the federal Voting Rights Act, giving a number of states and local jurisdictions, many of them in the South, the ability to change voting rules that affect minorities without first seeking federal approval. The removal of this so-called preclearance review, once mandated for 40 of North Carolina’s 100 counties, freed up the Republican-controlled legislature to pass a host of changes to the electoral process, nearly all of which Democrats say are partisan in intent.
Republicans have defended some of the restrictions as anti-fraud measures. Lawmakers softened the voter identification requirement in June, allowing voters without IDs to cast provisional ballots after providing a “reasonable” excuse.
‘Only tool they have’
Wendy Weiser, director of the Democracy Program at the Brennan Center for Justice at New York University Law School, said the lawsuits against voter restrictions could clarify what protections remain under the Voting Rights Act and the Constitution.
“It’s a very significant moment in the law, and for democracy generally,” said Weiser, who is a lawyer for the plaintiffs challenging a Texas voter identification law.
The redistricting battles in North Carolina predate the Republicans’ legislative dominance. In fact, in the 1990s, it was conservatives who sued over the congressional maps drawn by Democrats, arguing that Democratic lawmakers had divided voters by race in violation of the 14th Amendment’s equal protection clause.
In the case, Shaw v. Reno, the Supreme Court ruled against the existing districts and, in so doing, created the concept of the unconstitutional racial gerrymander – that is, a separation of voters by race without sufficient justification.
Many liberals at the time protested. But their case against the 2011 Republican map relied on similar grounds. Their complaint, filed in 2013, argued that Republicans packed black voters into two districts that already had a plurality of black voters, thus reducing their influence in surrounding districts.
“They’re using that because that’s the only tool they have,” Richard L. Hasen, a law professor at the University of California, Irvine, said of liberals’ use of racial gerrymander claims. “The court is equipped to police voting rules on the basis of race, but not on the basis of party.”
After the three-judge panel for the Middle District of North Carolina ruled against the districts Republicans created in 2011, the legislature drew its new maps last month. This time, Republicans drew up a new list of criteria to guide them. Race would not be taken into consideration at all, and the districts would “maintain the current partisan makeup of North Carolina’s congressional delegation.”
On the state House floor, Rep. David R. Lewis, a Republican and a chairman of the redistricting committee, said the maps complied with the judges’ ruling. And he was open about their partisan nature – much the way Democrats had been when they redrew districts in 2001.
“I think electing Republicans is better than electing Democrats,” he said. “So I drew this map in a way to help foster what I think is better for the country.”
‘A playground mentality’
This case and others like it could prompt the courts to clarify complex issues of race, partisanship and how political lines are drawn in changing times. Hasen and others have speculated that the Supreme Court now may be willing to reconsider the constitutionality of partisan gerrymanders.
In a 2004 opinion, Justice Antonin Scalia, who died in February, wrote that political gerrymandering should not be adjudicated by the federal courts. But he was joined by only three other justices.
“This issue is in limbo,” said Edward Foley, a law professor at Ohio State University.
Even though they are in control, some Republicans join Democrats in saying the process has to change. After the new maps were approved by the General Assembly, McCrory reiterated his desire to see districts drawn in a less partisan way.
“We need to revisit the whole concept of how to draw districts,” he told The Asheville Citizen-Times, “not only in North Carolina but throughout the nation.”
Such sentiments are welcomed by Jane Pinksy, director of the NC Coalition for Lobbying and Government Reform, a nonprofit that has been pushing for a nonpartisan entity to draw the state’s electoral maps. But Pinksy said the political mood may have to lighten first.
“I mean, it’s a playground mentality – ‘You did it to me, so I’m going to do it to you,’” she said. “It’s like a telenovela, or a soap.”