Since the Supreme Court refused to rule on the North Carolina gerrymandering case brought before it-- Common Cause (and others) v. Rucho-- it's now the state's job to lay down a standard, one way or another, on gerrymandering.
Common Cause v. Rucho may not ever need to make it to the state courts; there's another similar case that has been in deliberation for the last 2 weeks: Common Cause v. Lewis. We've been watching this case closely, but like so many other things in North Carolina politics, it's gotten complicated real fast. If you're a next-level political junkie or a lawyer or some mind-boggling combination of the two, you can find all of the filings in this case here. If you're merely human, here follows a hopefully more palatable version.
Who's suing whom? Common Cause, the NC Democratic Party, as well as several Democratic and unaffiliated voters are suing. They're the plaintiffs. Republican legislative leaders, including Rep. David “This is a complete vindication of our state ” Lewis, are the defendants. They're the ones being sued.
What are the plaintiffs' claims? From Common Cause's website: “The North Carolina partisan gerrymanders are unconstitutional and invalid because they violate the rights of the plaintiffs and all Democratic voters in North Carolina under the North Carolina Constitution’s Equal Protection Clause, Free Elections Clause, and Freedom of Speech and Freedom of Assembly Clauses.”
What do the plaintiffs want? They want partisan gerrymandering to be declared unconstitutional. They also want the maps drawn in 2017, heavily gerrymandered by the Republicans with help from the late Thomas Hofeller, thrown out and redrawn by legislative leaders for the 2020 elections.
The trial officially started Monday July 15th, with opening statements from attorneys on each side. The statements from plaintiffs' attorneys amounted to “the facts will speak for themselves”. The attorneys on the defendants' side dramatically conjured up images of “a thorny thicket” of litigation that would grow from a ruling in favor of Common Cause and a “boogeyman” in the form of the late Thomas Hofeller's files, which they claimed the plaintiffs were using to “distract from the weakness of their case”.
Don't you just love it when Republicans out themselves without even realizing it?
Director of Common Cause Bob Phillips, as well as Democratic Sen. Dan Blue and Rep. Graig Meyer, testified later in the day, addressing defendants' claims and highlighting the need for a new mapmaking process altogether. “I am opposed to the [mapmaking] process as used by either party,” Rep. Graig Meyer said, indicating he was in favor of an apolitical redistricting process. “I think an unfair playing field is keeping Republicans in the majority,” testified voter Derrick Miller, who lives in a gerrymandered district and is seeking a fairer process so he can actually make his voice heard.
The first week of hearings continued with plaintiffs calling expert witnesses to help them make their case. Jowei Chen, who has “expertise in geographic information systems, political geography, redistricting and legislative districts”, presented his analysis of the Hofeller files (more about them a little later) as well as maps he, Mr. Chen, had created from computer simulations “to establish a baseline with which to compare Hofeller’s draft maps and the legislature’s final enacted maps”. He thus proved that partisan intent in drawing the 207 maps was irrevocably present.
Thomas Farr, an attorney for the defendants and a Trump nominee to a federal judgeship, told the judges, bizarrely, that “courts frequently don’t admit expert reports and instead rely on only testimony” and called the focus on the Hofeller files “a sideshow”. Chen was then cross-examined by Thomas Farr, who then again tried to get his testimony struck from the record, then argued with judges about his own objection.
When facts are not on their side, clearly these defendants favor verbal and legal gymnastics to try to wiggle out from between the rock and the hard place.
The court allowed Chen's testimony.
Joshua Brown, a plaintiff in Common Cause v. Lewis, a resident of High Point, testified next. Melissa Boughton tweeted “Brown says the way his House and Senate districts were drawn has significantly impacted his ability to participate politically in NC...Brown says he cares about issues like living wages, air quality and Medicaid expansion. His mother has been in the hospital and would not be facing certain health issues if the state had accepted Medicaid expansion.” Under cross-examination, Brown said he had not attended any redistricting hearings because transportation was difficult. He had not contacted his senator, Republican Jerry Tillman, about issues because he “hasn't wanted to waste time after hearing his stance on issues”.
Another expert witness for the plaintiffs testified next. Dr. Christopher Cooper, a department head and political science professor at Western Carolina University, “about how allegedly gerrymandered districts have been split compared to how they could have been split without partisan intent”.
If you're noticing that I link to Melissa Boughton's Twitter feed frequently, there's a reason for that. She is livetweeting the trial daily, bless her, and her insights and expertise are invaluable.
The Hofeller files came into play fairly quickly. I've reported on them before, and we all know the gist of the story: Thomas Hofeller worked with Republicans in North Carolina and nationwide to both build the foundation of the NC GOP's 2010 coup and subsequent consolidation of power, and more recently before his death worked with people in the Trump administration to engineer the citizenship question on the 2020 census.
In the hearings, defendants continued to belittle the evidence the Hofeller files represented. “We did everything in accordance with the law, and they have yet to give even an ounce of evidence that there was any wrongdoing,” said Rep. Lewis. Jowei Chen's testimony presented a different story: that Hofeller may have racial data in his map design (which is illegal and unconstitutional), which was then adopted by the NCGA. It's not clear in the files themselves if Hofeller actually did do this or not.
In any case, if racial motivation was murky, partisan intent was absolutely not:
“Hofeller worked hard to make sure the legislative districts would give Republicans an unfair partisan edge. Hofeller color-coded the state’s political leanings, Cooper said, using a traffic light system of green for Republican areas, yellow for tossup areas, and red for Democratic areas. His color-coding went down to the neighborhood level, broken up into individual voting precincts. 'It shows that partisanship was front and center,' Cooper said.”
Johnathan Mattingly, chair of the mathematics department at Duke, testified as an expert witness for the plaintiffs next. His testimony appears in Common Cause v. Rucho as well. Mattingly has studied gerrymandering and written papers about his approach to analyzing partisan bias in districting maps, and his research clearly shows how radical the 2017 maps had become in relation to others. Attorneys for the defendants had no compelling or productive cross-examination. I can't imagine why.
Wayne Goodwin, chair of the NC Democratic party, took the stand next for the plaintiffs. Though he could not tell attorneys for the defendants which districts specifically the plaintiffs were displeased with (not that it matters; it's the process the plaintiffs are challenging, not the results), he did remind us that “in 2010, when the red wave washed up ashore, Repubs were able to elect a legislative majority in both chambers w/maps the Dems drew. That is in stark contrast to the way the maps were drawn by the Repub majority since then”.
The plaintiffs' next witness, Wesley Pegden, another professor, analyzed the Republican-drawn maps using a sensitivity analysis, once again exposing the maps as drastic outliers with no other explanation than partisan intent. Cross-examination was also more of the same: questioning Professor Pegden's status as an expert.
The defendants then called their first witness, Dr. Karen Owen. She is an assistant professor at the University of West Georgia, as well as a gender politics, American institutions and elections scholar. “She has published articles on congressional elections, state legislative partisanship and women serving in legislative and judicial positions.” Right away, attorneys for the plaintiffs objected to her status as an expert on North Carolina politics. The judges allowed her to continue.
“She admitted during her cross examination that she didn’t talk to any North Carolina voters, legislators, former legislators or winning or losing election candidates from 2018 in performing her research. She relied instead on her experiences, expertise, newspaper and blog reports and a couple of interviews with North Carolina legislative staff members to write her expert report.”
Janet Thornton, the second expert witness for the defendants, spent most of her testimony and cross-examination questioning the plaintiffs' witnesses' research, and offered little in the way of rebuttal.
Rep. John Bell was the next witness for the defendants. He's the House majority leader and has served on redistricting committees. I'll let the following image speak for itself.
Defendants' last witness of the day was Douglas Johnson, a research fellow at the Rose Institute of State and Local Government in Claremont, California, and president of the National Demographics Corporation. Most of his testimony amounted to developing maps that gave more partisan advantage to Republicans and then saying “hey, at least it wasn't this bad!”
The trial continues tomorrow, with an expected wrap-up date of this Friday. If you're on Twitter, do yourself the favor of following Melissa Boughton for live coverage of the trial, and check NC Policy Watch for non-Twitter updates.
I'll leave you to ponder this tweet by Sen. Jeff Jackson. What do you think?
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