By: Blake Willis

Election litigation has experienced a new spike in recent years, with many states being involved with litigation over redistricting plans, Voter I.D. laws, and other ballot access issues. Since the inception of litigation under the Voting Rights Act of 1965 (VRA), there has been a consistent concern that federal courts should not be involved in determining the policies of voting, re-districting, and other related issues. Cases such as plurality opinion Davis v. Bandemer express such concerns, stating that partisan gerrymandering concerns are not justiciable, and that opening the door for federal courts to examine similar claims may set a dangerous precedent. In Veith v. Jubelirer, Justice Scalia echoed this sentiment, arguing that it is an increasingly difficult task for courts to determine what the predominant factor for drawing a district line may be. The expanding jurisprudence from both partisan and racial gerrymandering cases proves this argument may hold some validity, as evidenced by courts’ disagreement over the correct standard to apply, what the evidentiary standard should be, and who the burden of proof rests upon, as just a few examples. Although this litigation has been ongoing for decades, it is by no means near reaching an end.

North Carolina is no stranger to this category of cases. As a state with numerous jurisdictions covered under the original VRA § 5 preclearance doctrine (revoked by Shelby County v. Holder), North Carolina has been a defendant in a multitude of cases under equal protection, VRA section 5, and VRA section 2 claims, often having to rework a statute or redraw a district’s line because of a court’s ruling.

This year, North Carolina’s primary elections experienced chaotic administration due to the ruling of a three judge court and staying of the results by the Supreme Court. The Supreme Court of North Carolina had previously upheld the district lines, drawn as a result of the decennial requirement in 2011; and the lines were used for both the 2012 and 2014 elections, despite ongoing litigation. However, in February, a three judge panel ruled that the lines were drawn with too much consideration of race. The two districts in consideration were the 1st and 12th Congressional Districts, which have been the subject of previous litigation. The results of this ruling (and the upholding of the decision by the Supreme Court) meant that North Carolina would have to redraw its district lines before the March 15th primary election. In order to accommodate this and allow enough time for proper candidate filings, North Carolina decided to set the new primary date as June 7 for congressional primaries. However, the March 15 primary election still included candidates for U.S. President, North Carolina Governor, and U.S. Senate as before. But while the ballots still included names of the congressional candidates of the previously existing 1st and 12th Districts, votes for congressional candidates in those districts did not count in the March primary. Election officials encouraged voters in these districts to fill out the entire ballot, despite some of the votes not counting. This double primary resulted in the state having to use tax dollars to reprint ballots and hold the second primary date – an administrative nightmare. Over 9,800 absentee ballots had to be requested for the primary.

Over the summer, a federal court again ruled that 13 other districts were illegal racial gerrymanders and required redrawing of the lines, although these districts were allowed to be kept in place for the purposes of the 2016 general election. While all of this litigation and re-drawing of lines has caused much confusion among voters, elected officials, and other affected parties, there may be a solution to the complex of line-drawing in the future.

Late in August, a panel of 10 retired North Carolina judges released an experimental congressional map, as the result of a redistricting simulation. The group of judges was comprised of half Democrats and half Republicans, and drew a map without considering party registration or voter history. The resulting map appears to create a more creative system than what currently exists in North Carolina, and could very well reflect a solution that would be upheld.

While this map was redrawn from a politically neutral standpoint, it is arguable that the same process could be implemented from a racial gerrymandering perspective. The major difference between the two analyses is that political gerrymandering claims are typically denied, as the court has held that political (partisan) considerations in congressional map drawing are not necessarily unconstitutional. North Carolina would not be the first, or only, state to consider such a policy. States such as California and Florida, for example, have also used such “experiments” to draw district lines. Furthermore, it may be possible that including retired bi-partisan judges in the map-drawing process would pre-empt future litigation by providing an earlier analysis of some of the factors that courts look at when challenges against racial gerrymandering arise, by creating more racially neutral, politically competitive districts from the start. The results may protect against future administrative difficulties and confusion, and promote more efficient elections.

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