The fate of North Carolina's new legislative maps is now in the hands of a federal court. A ruling could come at any time.
But in a new twist in this long-running case, the judges signaled they may be willing to do something the plaintiffs explicitly did not ask for and state lawmakers do not want.
This is the case of Covington v. North Carolina. It's a case that James Wynn, Thomas Schroeder and Catherine Eagles know well. They are the three federal judges who ruled last year that 28 of North Carolina's 170 state legislative districts violate the 14th Amendment because they're illegal racial gerrymanders. The concern is state lawmakers packed African-Americans into specific districts, diluting the power of their votes.
The U.S. Supreme Court has already upheld this decision. Therefore, the maps were ordered redrawn. And in September, the Republican-led General Assembly did just that.
All this brings us up to Thursday's hearing. It was all about whether the new districts did enough to right the racial-gerrymandering wrong.
The proceedings kicked off with lawyers representing the plaintiffs, African-American voters who originally brought the case. They had a two-pronged argument: the state did not do enough to fix the racial gerrymanders and, conversely, the state did too much when it redrew the boundaries.
The defendants in this case are the Republican leaders of the General Assembly who ran the redistricting effort. Their lawyers largely just countered the plaintiffs' arguments. So let's take them one-by-one.
The State Did Too Little
The plaintiffs focused their argument here to just six of the 28 racially gerrymandered districts. Four in the House and two in the Senate.
In these, they argued, the boundaries had hardly changed. A nip here and a tuck there, but the redraw, they argued, was more cosmetic than substantive.
And they pointed out that the black voting age population, a key metric in this case, had not been changed enough under the new maps because areas with large African-American populations were still grouped together by long and meandering boundaries that seemed constructed in order to do just that.
The defendants disagreed and said race was not an official criterion this time. The map makers, they argued, stuck to standard redistricting practices like keeping counties, towns, and voting precincts whole within the new boundaries whenever they could. Any high concentration of African-American voters were "naturally occurring," meaning it was due to where they lived and not a redistricting motive.
The State Did Too Much
For this point, you need to know something about the North Carolina Constitution. It actually bans lawmakers from doing what's known as mid-decade redistricting. This means they can only draw up new legislative districts following the ten year census. The sole exception is if lawmakers are ordered to do so by a federal court.
Here, the plaintiffs argued the state violated North Carolina's constitution because they didn't just change the 28 racially gerrymandered districts ordered by the court, or the districts that shared a common boundary with them.
The General Assembly redrew some districts that had been found constitutional by the court and were far enough away from the racial gerrymanders they should have been left untouched. This includes some House and Senate Districts in Mecklenburg and Wake counties.
The defendants countered this by saying it was all due to a 'ripple effect.' Changes in the racially gerrymandered districts begat changes in contiguous districts begat changes in yet other districts. All part of normal redistricting, they said.
Now these were the arguments both sides were prepared for. But this is an appeals court which means the judges get to directly question the lawyers.
Questions From The Bench
This hearing was scheduled to take two hours or so. Instead, it ran for four and a half hours.
There were questions about what role the court itself should play in redistricting.
"I feel caught in the middle" said Judge Thomas Schroeder, who asked the plaintiffs if judges should be put in the position of ruling on political contests.
"All maps have political consequences" was the answer.
But the bulk of the judges' questions dealt, unsurprisingly, with race. And what role race played, if any, in drawing these new maps.
"What evidence do you have that race played no role in the new districts?" Judge Catherine Eagles asked the defendants.
"Look at them" was the reply.
The lawyer also pointed Judge Eagles to the transcripts documenting the General Assembly's public redistricting meetings and debates, where lawmakers said again and again that race was not considered.
"But that was not said under oath," stated Judge Eagles, adding lawmakers could have offered a sworn affidavit which, "you didn't do."
But easily the most contentious exchanges focused on Tom Hoffeller, a favorite GOP political map maker here in North Carolina and nationally.
Hoffeller drew the 2011 maps and the racially-gerrymandered districts. He also drew the new maps. That seemed to bother Judge James Wynn, who doubted the defendant's claims that Hoffeller did not use his previous knowledge of where North Carolina's African American population was concentrated.
"Is it your contention that he simply ignored it?" asked Wynn.
"There's no evidence," that he did use race, the defendants answered adding "speculation is not evidence."
The New Twist In The Case
It has to do with what's known as a "special master."
Both sides in this case have submitted legislative district maps which they believe solve the racial gerrymanders.
If the court decides neither map fully complies with their order, they have the ability to appoint a person, a special master, to redraw the districts independently. And it seems that may be in play here.
After the hearing the judges ordered both sides to create a list of three people they agree are qualified to draw yet another map. If not, the order stated, the court could make the pick on their own.
Thursday, the plaintiffs told the court they did not think such a move was necessary. It was one of the few things the defendants agreed with.
The parties have until Monday, October 18th, to comply.