Judges on the U.S. District Court for the Middle District of North Carolina last year ruled 28 of the state’s 170 legislative districts were unconstitutional, and Republicans submitted a new plan last month. The court issued an order on Thursday saying nine of those districts were likely to still be illegal or unconstitutional. The court also announced it would appoint Nathaniel Persily, a Stanford law professor, as a “special master” to help them further evaluate the districts and, if necessary, redraw them.
Republican lawmakers said the new proposed districts could not be unconstitutional based on race because they did not consider it as a factor at all when drawing the new lines. Michael McDonald, a political science professor at the University of Florida who has served as an expert witness in other gerrymandering cases, said Persily’s appointment was a signal the court was suspicious of the GOP’s new plan.
“The court must have suspected to some degree that the new districts are unconstitutional,” he said. Persily “is fair and will not prejudge the districts until he has evaluated the available evidence. He could recommend new remedial districts or he could agree that the legislature’s plan has addressed the court’s concern.”
Neither North Carolina Senate President Pro-Tempore Phil Berger (R) nor House Speaker Tim Moore (R) responded to a request for comment.
State Rep. David Lewis (R) and Sen. Ralph Hise (R), who control the redistricting committees in their respective chambers, criticized the court’s decision in a joint statement.
“Similar to this same federal court’s order for a special election in North Carolina that the U.S. Supreme Court reversed, this unusual and vague order provides absolutely no legal or factual basis for objecting to the new maps, while also potentially delegating the legislature’s constitutional authority to draw districts to a lone professor in California with no accountability to North Carolinians,” they said.
Persily’s appointment was the latest step in lengthy litigation that has already reached the U.S. Supreme Court. Earlier this year, the high court upheld a lower court’s ruling that 28 of the state’s electoral districts were unconstitutional, and sent the case back to the lower court to consider whether special elections were necessary ahead of the ones scheduled in 2018. The court ruled in August not to hold those special elections, but tweaked Republicans for dragging their feet in making the changes.
“It has been shown time and again that the state legislature refuses to draw fair districts that comply with the law. Our clients are hopeful that this process will result in fair districts for all North Carolinians,” Anita Earls, the lawyer for the plaintiffs in the case and executive director of the Southern Coalition for Social Justice, said in a statement.
North Carolina Republicans, who have super-majorities in both chambers of the state legislature, have faced scrutiny over a number of efforts to make it more difficult for minorities to vote. They enacted a voter ID law that a federal appeals court struck down, saying it targeted African Americans “with almost surgical precision.” The Supreme Court also struck down two of the state’s congressional districts earlier this year, saying they were impermissible racial gerrymanders.
Persily has served as a court-appointed special master to oversee redristicting plans in Georgia, Maryland, Connecticut and New York. He also served on the Presidential Commission on Election Administration, a commission President Barack Obama convened to come up with ways to improve elections.
This story has been updated to include comment from Hise and Lewis.