Judges grill legislative attorney in redistricting hearing


Dan Way - Carolina Journal



ALEIGH — Attorneys for legislative Republican leaders endured a barrage of questions and comments from a three-judge federal court panel over lawmakers’ failure to remap 28 unconstitutionally drawn legislative districts.

Judges James Wynn, Catherine Eagles, and Thomas Schroeder issued no ruling after a three-hour hearing Thursday in the Covington v. North Carolina lawsuit.

But they repeatedly expressed impatience with the General Assembly’s inaction.

The hearing, at the federal courthouse in Greensboro, was necessary because the U.S. Supreme Court said — even though the districts in question unconstitutionally relied too much on race — the panel failed to justify a separate election for a legislature that would serve only one year. The federal justices will review the panel’s opinion from Thursday’s hearing and decide if the judges made their case or if the high court needs more information or even a full set of arguments before issuing an opinion.

Wynn, an appointee of President Barack Obama who sits on the 4th U.S. Circuit Court of Appeals, said several times the court could hire a special master to redraw the maps even though he expressed doubts about the plaintiffs’ call for a special legislative election this year.

The judges sat passively through the plaintiffs’ presentation of expert testimony. When plaintiffs attorneys Anita Earls and Edwin Speas gave their closing arguments, the judges asked a handful of questions.

But Wynn and U.S. District Court Judge Eagles — also appointed by Obama — sharply challenged attorney Phil Strach, representing GOP legislative leaders. Strach spent most of his allotted time answering questions instead of presenting his arguments.

Strach reminded Wynn and Eagles that in sending the case back to the three-judge panel, the Supreme Court also said their remedy should limit any impacts on the state’s sovereignty in electoral matters, not disrupt the ordinary processes of government needlessly, or unnecessarily set aside state constitutional provisions.

“That’s where it gets complicated,” Wynn said. “I don’t recall the Supreme Court telling us when to have the maps in place.”

He said the districts were unconstitutionally drawn by race, and “you had to know this case would be affirmed” by the Supreme Court.

“This is serious. We have 28 districts that are drawn in violation of the U.S. Constitution,” Wynn said.

Eagles echoed Wynn’s admonition, claiming Strach wasn’t serious about fixing the unconstitutional gerrymanders.

“We respectfully disagree,” Strach responded.

Eagles disparaged Strach’s contention the state had complied with the court’s 2016 ruling to fix the gerrymandered districts. Strach said the legislature was ordered to remedy the unconstitutional districts in its next session, and the General Assembly sits in a two-year session.

“You’re saying the legislature has until 2018?” Eagles asked. Strach said yes.

Strach said the House and Senate redistricting committees are now focused on the situation, and a public hearing process is vital. The legislature wants to put out new maps, then hold three public hearings in August, September, and October.

Eagles said public hearings were held in 2011 when the original maps were drawn, and questioned the need to repeat that process.

Wynn asked why the hearings hadn’t been held.

Strach said the state’s population has shifted dramatically since 2011, and new maps would look very different, so public hearings are essential.

He noted that the legislature thinks more than 100 legislative districts might need to be redrawn to accommodate the 28 unconstitutional districts. He reiterated that the session lasts until 2018, and the General Assembly did most of the heavy legislative work in this year’s long session so that it could spend the next year on the new districts.

Eagles said in 2002, state legislative districts were redrawn in two weeks under court order, and she saw no reason why that couldn’t happen again.

Strach reminded her that a court struck down those maps and then drew its own set, demonstrating the folly of a rushed process. “The legislature has a plan to do it right” this time, he said.

Wynn suggested a number of scenarios.

The legislature could submit maps and conduct public hearings while the judges reviewed them. Any significant changes could be handled through a petition to the court.

The court could hire a special master to draw new maps if the judges reject the legislature’s plan, preventing further delays.

Wynn said he prefers not to redraw the maps because that is the legislature’s job. Schroeder — a U.S. District Court Judge appointed by President George W. Bush — said jurists are among the least qualified people to draw new electoral maps, but the legislature’s timeline gives the court scant opportunity to review the maps and consider plaintiffs’ request for a special election.

Dan Way

Carolina Journal

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