Jurisprudence

Instead of Fixing Their Gerrymander, North Carolina Republicans Are Trolling the Court

People gather with signs during a rally outside the Supreme Court
People gather during a rally outside the US Supreme Court during the hearings on the redistricting cases in Maryland and North Carolina.
MANDEL NGAN/Getty Images

When a North Carolina court struck down the state’s legislative gerrymander on Sept. 3, it gave the General Assembly two weeks to draw new maps uninfected by partisanship. Republican lawmakers decided not to appeal that decision to the liberal North Carolina Supreme Court. Instead, they appear determined to violate the court’s order and produce tainted maps that dilute Democratic votes. It’s a scheme that will clearly anger the court. That may be the point.

In directing the General Assembly to redraw North Carolina’s house and senate districts, the court laid down a few rules. It declared that “all map drawing [must] occur at public hearings,” a requirement meant to prevent Republicans from covertly manipulating district lines for partisan gain. Legislators must produce districts with equal population, contiguity, and compactness, taking care not to unduly carve up precincts and cities. Notably, legislators are strictly prohibited from using “[p]artisan considerations and election results data.” The court also announced that it would appoint a “referee” to assist “in reviewing any Remedial Maps enacted by the General Assembly”—and to “develop remedial maps” if the General Assembly fails its task.

The first indication that legislative leaders might not comply in good faith with the order came on Sept. 6. That day, GOP legislators filed a recommendation that the court appoint two “co-referees”: Art Pope and Gerry Cohen. This suggestion is, to put it mildly, absurd. Pope is the conservative multimillionaire who masterminded North Carolina’s Republican gerrymander. He bankrolled REDMAP, the GOP’s gerrymandering program, and helped to draw the state’s Republican gerrymander. Cohen is a more reasonable nominee: He once served as counsel to the General Assembly and is now a member of the Wake County Board of Elections. Republicans seem to have tossed in his name merely to create a sense of balance—and they did not consult him beforehand: He learned he had been nominated when I shared the news on Twitter. (The court has not yet acted on the GOP’s filing.)

After essentially flipping off the court, Republican legislators got to work drawing the new districts. They quickly settled on a plan to get around the ban on partisan gerrymandering. Lawmakers announced that they would work off maps created by Jowei Chen, a political scientist who served as an expert for the plaintiffs in this case. Their stated plan is to identify which if Chen’s maps best comports to the court’s guidelines and adopt them with minimal alterations.

There are many problems with this plan. First, and most obviously, Chen did not draw the maps in public hearings, as the court demanded. The court even clarified that “any relevant computer screen” must be “visible to legislators and public observers” to prevent subtle chicanery.

Second, Chen’s maps were never intended to serve as a model for redistricting. Instead, they were created as evidence to gauge the severity of the existing gerrymander. Chen ran 1,000 simulations for both the house and senate maps using non-partisan districting criteria but allowing for incumbency protection. Every single map produced more seats for Democrats; not a single one exhibited “the same extreme level of Republican bias.” The court relied upon these maps to illustrate just how extensively the GOP gerrymander diluted Democratic votes. Legislators claimed that Chen’s maps can serve as a baseline for redistricting because they have already been “accepted” by the court. That is simply false. The court never said “accepted” these plans as remedial maps, but as evidence of the current map’s infirmity.

Third, working off Chen’s maps will allow Republicans to smuggle partisan bias into the new plan. These maps, after all, were drawn using a simulation designed to protect incumbents. And most incumbents at that time were Republicans because of the partisan gerrymander. As Chen explained, the maps therefore “distort[ed] the partisan distribution of voters across districts” to favor Republicans. In other words, they have a built-in partisan bias. Moreover, Republican legislators, who are very familiar with the partisan distribution of voters at this point, can easily assess which simulated maps have the most bias toward the GOP. They will then rank their favorite plans and use a lottery machine to select which ones they will use. This performance is a bit mystifying since the finalists will all be extremely similar—and, most likely, extremely favorable to Republicans.

Again, GOP lawmakers probably don’t need election data to figure out which of Chen’s simulations will best preserve their electoral advantage. But they may have it anyway. Even though the court expressly forbade legislators from looking at this data, Republican attorneys sent this data to the General Assembly on Monday via email. The email provided partisan scores of Chen’s maps, stating which ones most favored Republicans. It’s unclear if this email was sent in error, but either way, lawmakers now know which maps will best maintain the current gerrymander. There is virtually nothing Democrats can do to stop these shenanigans. Republicans control the committee in charge of redrawing the maps and have plowed ahead with their scheme over Democratic objections.

Ultimately, the court may be forced to appoint a special master to draw genuinely nonpartisan maps now that the General Assembly’s process has been tainted. This may have been the goal all along.

Republicans surely know they stand little chance of winning this round. By trolling the court, they are all but ensuring the appointment of a special master. At that point, Republicans can accuse the judges of overreach and demonize the judiciary. A number of important judicial seats are up for election in 2020, and GOP lawmakers may hope to provoke a backlash against progressive judges to rally the base. Whatever the cause for their bad behavior, North Carolina Republicans have spent the last few days proving once again that they could not draw a fair map to save their lives.