Checking redistricting from the bench: How the judiciary has helped reshape the districts we live in

Oct 12, 2021
Originally published on October 12, 2021 3:12 pm

Throughout American politics, there are checks and balances that serve to limit the authority of any one person or branch of government. However, redistricting in North Carolina remains a purely legislative process. The governor does not have veto authority over redistricting legislation. So when it comes to districts in our state, the most significant check – really the only functional one – is the judiciary.

We are always redistricting in this state. And really since 1980, it's been the political dynamics. And it's been the legal dynamics that have forced North Carolina not to go through a decade with one complete set of congressional and or state legislative maps.

Michael Bitzer, professor of politics and history at Catawba College

And during the past few decades, a somewhat dizzying labyrinth of case law has been established. There are rulings and subsequent guidelines for how to conduct redistricting - from the federal bench, as well as procedures laid out by state courts. Whereas some legal challenges have been unsuccessful at the U.S. Supreme Court, a different ruling has emerged in state courts.

The courts say racial gerrymandering is illegal, although the parameters of just what is permissible have changed over time. Partisan gerrymandering is not an issue for federal courts, after the Supreme Court ruled on a case out of North Carolina in 2019. But just two months later, a state superior court weighed in on the question of hyper-partisan districts with an unprecedented three-judge decision.

“We are always redistricting in this state,” said Michael Bitzer, professor of politics and history at Catawba College and author of a new book, "Redistricting and Gerrymandering in North Carolina."

Bitzer added: "And really since 1980, it's been the political dynamics. And it's been the legal dynamics that have forced North Carolina not to go through a decade with one complete set of congressional and or state legislative maps.”

North Carolina is the nexus for redistricting litigation and 2021 should be no different. Once congressional and legislative districts are approved later this fall at the NC General Assembly, legal challenges are inevitable.

“You know, race is always at the forefront of political decisions in the South. And, and you can't get around it,” said Derick Smith, a longtime lecturer at North Carolina A&T State University.

For example, in the early 1990s, the U.S. Supreme Court struck down a Congressional District that slithered from Charlotte all the way to Durham, ruling it unduly packed in Black North Carolina voters.

Packing is one tool used to gerrymander. This has been implemented by Democrats and Republicans. A legal challenge in state court in 2002 resulted in some limits on cracking. For legislative districts, North Carolina counties must remain whole whenever possible. At the same time all districts must contain a relatively similar number of people – this comes from the one-person one-vote principal.

State Senate seats each have a constituency of roughly 210,000 people, while state House districts contain close to 87,000 people. However, not every county in North Carolina has this many people, while others counties are much larger than these figures. So the Stephenson ruling is used to "cluster" counties together and achieve balance. Every grouping has enough people to have multiple seats.

And finally, in a somewhat fascinating, historical and ironic twist, the then-state Senator who wrote the bill 26 years ago preventing governors from blocking redistricting plans is the very same person who is today severely hampered by that limitation: Roy Cooper.

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