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Judges again weigh NC legislative maps

The federal judges overseeing North Carolina redistricting cast some incredulity toward the legislative majority's claims Thursday, but they also seemed to struggle with just where to hold the needle the General Assembly must thread when it comes to how race can, must or should be considered when drawing election maps.

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Debate on redistricting maps continues
By
Travis Fain
GREENSBORO, N.C. — The federal judges overseeing North Carolina's redistricting process cast some incredulity toward the map makers claims Thursday, but they also seemed to struggle with just where to hold the needle that the General Assembly must thread when it comes to how race can be used in drawing election maps.
This three-judge panel is reviewing maps that the legislature approved in late August to replace House and Senate maps the court }threw out over a racial gerrymander. The federal case, filed more than two years ago and one of several lawsuits attacking maps drawn by the Republican-controlled General Assembly, is nearing its end. The judges must decide whether to accept the replacement maps for use in next year's legislative elections.

They could also appoint their own map maker, called a special master, or adopt maps drawn by the plaintiffs in this case. All U.S. District Judge Catherine Eagles said at the end of a four-hour hearing Thursday was that the panel she chairs would "take the matter under advisement," but that afternoon the court ordered the two sides in the case to huddle and come up with three people they agree would be qualified to draw new maps.

That list is due next Wednesday, and the judges said they asked for names ahead of their decision to avoid delay if the court sides with plaintiffs challenging these new maps. Filing in General Assembly races comes in February, and the judges have expressed interest in the past in giving potential candidates time to line up support. Any decision from this three-judge panel could be appealed to the U.S. Supreme Court.

Even at the high court, judges have struggled to give state legislatures solid guidance on race and redistricting. The law requires that minority voters be able to elect the candidates of their choice in at least some districts, but packing too many minority voters into one district dilutes their strength in surrounding districts.

After North Carolina's maps were struck down over racial gerrymanders in 19 House and nine Senate districts, GOP leaders vowed to redraw them without looking at racial data at all. Democrats bellowed: How can you fix the unfair use of race without considering race?

What's more, Republicans used the same consultant on the redraw, Tom Hofeller, who drew the initial maps. Hofeller would already know where to find clusters of minority voters, attorneys argued Thursday. They pointed primarily to four districts, saying their black voting age populations – BVAP in redistricting parlance – remain high enough to suspect legislators still attempted to pack minority voters into them.

"This time, they didn't say it, but the circumstantial evidence is the same," attorney Edwin Speas said.

Attorneys for legislative leaders argue that the numbers naturally followed a race-neutral process. But Eagles and 4th U.S. Circuit Court of Appeals Judge James Wynn – both President Barack Obama appointees  – questioned the results. Eagles said some districts seem hardly to have changed, something Democrats argued during the recent redistricting session.

"How do we ignore looking at what we see?" Eagles asked Phil Strach, an attorney for lawmakers.

"I strongly disagree," replied Strach, who is married to the state's director of elections, Kim Westbrook Strach. "These districts look a lot different."

The plaintiffs also argued against one of the legislature's goals in this redraw: protecting incumbents. Protecting legislators elected from an unconstitutional map, attorney Anita Earls said, has the effect of "baking in the gerrymander."

U.S. District Judge Thomas Schroeder, a President George W. Bush appointee, picked up on this thread, asking at one point whether incumbent protection could be a proxy for race.

Plaintiffs also argued that legislators exceeded the redistricting authority given them by the court by tinkering with districts they didn't need to touch. By going beyond correcting the 28 districts found unconstitutional by the court, Earls argued, legislators ran afoul of the state constitution's prohibition on redistricting more often than once a decade after each U.S. census.

Eagles didn't seem to think much of this argument in Wake County, where the plaintiffs pointed to several districts that, they said, should have been left alone.

"They're not going very far away from the unconstitutional districts," Eagles said. "Your argument seems inconsistent."

"It's like they're durned if they do and durned if they don't," the judge told Earls.

A separate lawsuit before a separate three-judge panel goes to trial next week. That case argues that North Carolina's maps should be struck down because they are overly partisan.

Courts have traditionally allowed partisan gerrymanders, as opposed to those based on race, but that could change. The U.S. Supreme Court is weighing a case out Wisconsin on the matter.

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