S1: So marchers of Stern. I know you’re a lawyer but I’m gonna make you do a little bit of math to start the show. OK OK OK. Under the current congressional maps in North Carolina.
S2: Republicans hold how many seats out of how many.
S3: So Republicans hold 10 seats out of 13 in North Carolina right now.
S4: And what percentage of the state actually voted for Republicans about 50 percent or less in the last few election cycles.
S2: That doesn’t seem right.
S4: No. It sure doesn’t. But it is in fact exactly what Republicans designed their gerrymander to do.
S5: And it has succeeded swimmingly marches of Stern writes about the courts for Slate.
S6: He’s been covering North Carolina’s gerrymander for years now. He’s watched as the maps that decide who can vote for whom.
S1: Have been challenged again and again in the courts for racial bias for political bias saying these maps are controversial. It’s kind of an understatement. My favorite detail is the Republican map maker who said I just think Republicans are better. So I’m drawing maps so more Republicans win.
S4: Yes. That was the guy in charge of redistricting and he also said the reason that I created 10 Republican seats and three Democratic seats is because I couldn’t create eleven Republican seats and two Democratic seats. So these guys were not exactly subtle about what they were doing. The whole point was to dilute Democratic votes as much as humanly and mathematically possible.
S2: The last time we were talking about gerrymandering in North Carolina the Supreme Court had just weighed in and they basically just said We’ll take a hard pass on this. Yes they looked at this exact map the 10 to 3 North Carolina congressional map and said Yeah you know this looks pretty bad but we don’t really think there’s anything we can do to solve it.
S4: So we’re just going to shot partisan gerrymandering claims out of federal court for the rest of all time. Kate thanks by.
S7: But this week a ruling in North Carolina’s state court breathed new life into this fight against partisan gerrymandering. It could offer a way forward not just in North Carolina but in other states where voters are worried their voices are getting drowned out. I’m Mary Harris. You’re listening to what next. Stick with us.
S2: So I just want to remind people how hyper partisan North Carolina is right now. How hyper partisan it’s become. And I think a good way to do that is to look at something that happened back in September. Can you talk a little bit about what happened with North Carolina’s budget.
S4: Oh yes. This was quite a saga. So there’s this big fight over the budget for the whole state of North Carolina because the governor is a Democrat. ROY COOPER He’s very moderate but he says look I want Medicaid expansion guys I want it. And Republicans said we’re not giving you Medicaid expansion. And so there was this standoff over the budget Republicans passed one without Medicaid expansion. The governor vetoed it. Republicans needed to override that veto to have their their budget take effect right. But they didn’t have enough votes. So what they did was they waited until Democrats were absent from the chamber. Some Democrats had been told by Republican legislative leaders that there would not be any votes that morning. And when all the Democrats were out or almost all of them were out Republicans suddenly called a session to order. And with virtually no Democrats in the chamber overrode the governor’s veto and passed the budget with no Medicaid expansion.
S2: And this was shocking to watch because there were there were a couple Democrats there. Right. This one woman she just starts yelling. Get what we believe and you. Submit.
S8: This. Just say. It is time to. Go.
S1: South. God. Is. Not. How dare you do this. Mr. Speaker. You don’t expect this kind of behavior from our lawmakers but to me it showed just how bitter the conversation is between Democrats and Republicans in North Carolina.
S4: Oh yeah. I mean they they really hate each other at this point. And I think Democrats have like a pretty legitimate grievance with Republicans which is that Republicans have since they took power North Carolina continually changed the rules of the game. And yes this this Democratic legislator on the floor was just screaming but for good reason because they had the emails proving that Republicans had said we’re not holding a vote this morning. What do Republicans do. They congregate they wait for the Democrats to leave and then they hold a vote.
S2: So you can see why these gerrymandered maps are so important to both sides because there’s a real feud going on between the Democrats and the Republicans. And it’s been playing out over maps for a minute. Can we just explain a little bit of the backstory quickly about how how the Democrats Republicans in North Carolina have been fighting over these maps.
S3: So yeah I mean Republicans basically came into power at the beginning of this decade in North Carolina and hired this guy named Thomas Haller who was the sort of Republican gerrymandering guru.
S1: We’ve talked about Haller before he passed away last year but we learned a lot about him and how he did his work when his daughter handed his computer hard drive over to anti gerrymandering activists. Some people called this guy the Michelangelo of maps.
S4: He invented the art of modern high tech gerrymandering and had him draw a bunch of maps that were both racist and partisan.
S9: So did as much as possible to dilute the votes of black people and Democrats both white and black Democrats pack them into just a few districts and then distribute the rest throughout red districts where their votes wouldn’t really count. And this was highly highly highly effective. And I actually think it’s worth noting we don’t talk about this often but the Supreme Court struck down the racial gerrymander and even Justice Clarence Thomas agreed with the liberal justices that this was a racial gerrymander and said You guys went way too far here.
S4: And that kept Republicans in power for much of the decade. They had to redraw the maps to undo the racial gerrymander but then they just turned it into a full on partisan gerrymander and that’s what we still have in North Carolina today.
S2: And it’s not just congressional maps maps for folks who go to Washington. It’s a state House maps too right.
S4: Yeah exactly. And that’s an important distinction that sometimes gets glossed over you have legislative maps which are the state House maps and you have congressional maps which are the ones that send people to the House of Representatives. And both of those were severely gerrymandered and the Supreme Court struck down both as a racial gerrymander in over the past few years. So we already know that this whole process was infected by racism but when Republicans got called out on it they just went to their back rooms hired holler back and drew a total partisan gerrymander that used partisan data instead of racial data which is why this North Carolina map ended up back at the Supreme Court where Chief Justice John Roberts decided enough.
S1: His ruling took the federal courts out of the partisan gerrymandering game for good.
S4: However they also had little paragraph in their opinion they said by the way we’re not saying that state judiciaries can’t deal with partisan gerrymandering if they want to. We’re only saying that you know the big boys in federal court aren’t going to be dealing with this. So they punted to the J.V. squad.
S10: State judges would not appreciate that that nickname and so I will not a sense to it but some may view them that way.
S1: Yes so progressive activists they saw this path another chance to plead their case in North Carolina. They decided to test it out first by challenging those legislative maps. It was actually former Attorney General Eric Holder who led the effort.
S4: He now heads up the National Democratic Redistricting Committee which is sort of devoted to undoing Republican Jerry Manders around the country. So that’s where a lot of this money is coming from and it’s a very focused effort to undo these skewed maps. Holder’s group backed a lawsuit against the legislative maps. So we’re talking about the statehouse map right. And took it to state court and said OK it doesn’t matter what the justices said in D.C.. You know federal court a whole different ball. We’re talking about the North Carolina Constitution which is actually more explicit in its protection of voting rights. So for instance it guarantees a right to free elections. It guarantees equality of votes not just that every voter has to be able to cast a ballot but that ballots are counted equally. And the state court which was two Democrats and one Republican. So it was a bipartisan three judge panel looked at this challenge and said You know what. These maps this gerrymander it does violate the North Carolina Constitution.
S2: So we’re going to strike it down under our own state laws and they give the state like two weeks to fix it. They were like you got to get on this. So it touched off this race to fix the maps. How did that work.
S3: So I will say at the end of the day the court ended up approving the maps that the legislature created the court forced legislators to draw these maps in open session. The maps were on a big TV screen so everyone could see what was being done. This was not going to be a repeat of the smoky back room gerrymandering right. They took these simulated maps and and basically took their top favorite simulations of what the map might look like and then put them in a literal lottery machine and then drew balls from the lottery machine to introduce an element of chance and none of this is really how you’re supposed to redistrict. But it was Republicans trying to say look we’re not being partisan at all.
S2: How did the lottery people get involved. Because literally you saw them rolling in like the Powerball machine to choose the district maps.
S4: Here’s one of the big flaws of this process that the legislators weren’t allowed to use partisan data but they were allowed to go off the maps that currently exist. And so what you saw was not so much a partisan gerrymander as an incumbent protectionist gerrymander and because the incumbents are mostly Republicans that sort of carried a little bit of the previous gerrymander over into the new maps. Does that make sense. So you had Republicans and Democrats sort of coming together and saying All right well look we have to draw fairer maps but let’s do what we can to make sure we aren’t going to put ourselves out of business here. And so they ended up sort of drawing different versions of a map putting those variations into a Powerball machine and then drawing several out of that machine to decide on the final plan the State House map that they eventually chose using this lottery machine method.
S1: What does it look like. Is it expected to change who gets elected where this map is fairly fair.
S3: It is pretty much down the line with a slight bias toward Republicans. I think if we’re giving legislators the benefit of the doubt that’s because there is currently a Republican majority and as I said there was a real effort to protect incumbents. So I think that basically what you have now is a map that benefits Republicans in a 50/50 election Republicans are still going to win a slim majority in the state house. But if there’s any kind of blue wave Democrats have a real shot of taking control.
S4: And I think that’s all they really hoped they could ever get out of this process.
S1: So after all of this happened with the statehouse districts in September is that when someone like Eric Holder starts thinking Oh maybe I can also bring these congressional maps to court.
S10: Yes exactly. And that’s exactly what Holder’s group did.
S3: Shortly after this decision about the legislative maps went back to the exact same court and said Hey remember what you guys just said about gerrymandering and how it’s illegal under North Carolina law. Well you should apply that principle to the congressional maps and do it like right now because the elections are right around the corner.
S2: And we want these maps redrawn pronto and this week we got a ruling. So are we going to see the Powerball machine rolling into the state house again.
S3: Oh I think we may come the court predictably said yeah of course a 10 3 map and a 50/50 state is not going to pass constitutional muster in North Carolina and blocked the maps and basically said look we want you guys to do some version of what you did last time. You know it might not have been perfect but there was real bipartisan cooperation and transparency.
S2: So maybe see if you can take a crack at these maps and draw something a great deal fairer and they didn’t give a two week deadline this time but they did say that the that the federal primary elections the presidential primary elections could be delayed if these maps are not redrawn by them.
S4: So at the core basically said was look you know a few months down the road we’re going to issue a final judgment and we’re going to say that this is illegal. But right now we’re at a pretty early stage. So if you guys in the legislature want to make life easier for everyone don’t wait for us to get to the end of all this you know how we’re going to rule fix the maps now we’re not going to order you to do it but if you don’t fix the maps now and you wait until the primaries are right around the corner we are going to put those primaries on hold until we have maps that are actually legal.
S2: So this won’t create a precedent for other states. But I am wondering how it will influence other states because there are plenty of other places that have gerrymandered maps that were moving through the system until this Supreme Court ruling came down.
S3: I mean the real question here is which other states have liberal judiciaries and which have conservative judges here is because as a general rule it’s not always true but progressive judges tend to think that partisan gerrymandering is illegal and wrong and undemocratic and conservative judges tend to think well it’s just not our place to get involved there. And so it doesn’t create a precedent outside of North Carolina but it does show other progressive state supreme courts that they can step in here to play referee and to the world will not end. You know if North Carolina Republicans didn’t burn down the courthouse after this ruling then surely Republicans and other states can kind of be brought into line by their own judiciaries.
S2: We talked a little bit about Eric Holder how this is his mission now to kind of get involved in redistricting and try to make the maps fairer whereas he’s setting his sights next.
S4: Yes. So he’s got a lawsuit going in Mississippi to try to topple this horrible system for electing governors in in Mississippi or actually any statewide candidates wherein you have to win not only the popular vote in Mississippi but you have to win a majority of the state House districts. And wouldn’t you know it the state House districts are gerrymandered. And so it’s basically impossible for a Democrat to win any kind of statewide race in Mississippi.
S2: And we should say that there is a governor’s race going on right now in Mississippi.
S4: Absolutely. And it’s very competitive. On paper the Democrat might actually pull through. But once you put it through this crazy system his odds seem pretty slim. This system is a direct result of Jim Crow. This system was designed to prevent any black person from winning statewide office because at the time it was instituted there were a lot of black people who were voting but white people still held the levers of power over state governments. And so they crafted this to prevent those black people from electing a black statewide office holder. And it has worked.
S2: No black person has ever won statewide office under this system ever and more than a century do we expect to see any kind of ruling before the governor’s race actually happens.
S4: You know I think that there is a chance that this system is so egregiously racist that you could get an injunction sort of halting it’s in time for the governor’s race. And I will say that even some conservative justices like Brett Kavanaugh have looked at these laws that are rooted in Jim Crow and been willing to acknowledge that they are tainted by racism. And so this doesn’t necessarily break along the liberal conservative split but the closer we get to the governor’s race the less chance there is of this map being blocked or the system being blocked because courts are really wary of weighing in on any kind of electoral law. On the eve of an election.
S7: Mark Joseph Stern thank you so much for joining me. Always a pleasure. Thanks. Mark Joseph Stern covers the courts for Slate.
S11: And that’s the show. What next is produced by Jason Leone. Mary Wilson Morris Silvers and Danielle Hewett. This episode is part of who counts. It’s a slate initiative aimed at looking at who’s votes matter and who’s don’t. In the run up to the 2020 election. Check it out at Slate dot com slash who counts. I’m Mary Harris. I will talk to you tomorrow but I’ll do it in the afternoon for our special impeachment episode. In the morning. Get ready. It’s Lizzie O’Leary in your ears with what next TV. Talk to you later.