John Locke Update / Research Brief

A commission is not needed for effective redistricting reform; clear standards are

posted on in Civil Society, Law & Regulation
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  • North Carolina will be redrawing state and federal legislative districts this year
  • There is already a host of constitutional, statutory, and judicial criteria in place that restrict how the General Assembly can draw districts
  • Additional reforms can assure equitable redistricting without a redistricting commission

The North Carolina General Assembly will draw districts for 120 NC House, 50 NC Senate, and (likely) 14 congressional seats this year. What criteria are used for drawing those districts, and what, if any, additional criteria should be added to make the redistricting process better?

A redistricting commission is not the answer

But before we get into the current standards for redistricting and what further standards are needed, let’s take a brief look at what is not needed: a redistricting commission.

During the 2019 legislative session, a host of redistricting reform bills were filed in the General Assembly. Each of them featured some form of redistricting commission, a political or independent body that would draw state legislative and congressional maps, which is a function currently performed by the General Assembly. Two of those bills, House Bill (HB) 69and HB 140, had bipartisan support. The NC House Redistricting Committee reviewed those bills in October 2020 with an eye towards pushing one of those bills forward in 2021.

Commissions themselves, however, do not remove politics from the redistricting process, nor do they assure that the districts they create will survive legal challenges. For example, the California Citizens Redistricting Commission, often held up as the best example of a redistricting commission, was manipulated by party officials and activists and failed to deliver more competitive districts. Also, over the past two decades, state legislative maps drawn by commissions rather than legislatures were more likely to be struck down by legal challenges. (Commissions did have a better success rate than legislatures for congressional maps).

In any case, given the Census Bureau’s delay in reporting data needed for redistricting this year due to “the pandemic and the anomalies found in the census data,” adding another delaying factor in the redistricting process is not practical.

What standards are currently in place for redistricting?

There are three major sources guiding how districts are drawn in North Carolina: the NC Constitution, the US Constitution along with federal election laws, and court decisions.

Article 2 of the NC Constitution (Section 3 for the House and Section 5 for the Senate) lays out four basic criteria for drawing state legislative districts:

  • Each state representative or senator shall represent “as nearly as may be” an equal number of people.
  • The district must be contiguous (but can cross bodies of water).
  • Counties cannot be split (the “whole county” rule).
  • Districts can be drawn only once every ten years.

The NC Constitution balances equal representation with the whole county rule by allowing for multimember districts. So, while smaller counties would be represented by one legislator, larger counties could be represented by two or more legislators running in a single county-wide district (see below, however, for discussion of how the NC Supreme Court’s “Stephenson rule” affects multimember districts).

The US Constitution and federal law also set criteria for redistricting. The US Supreme Court has interpreted Article 2, Section 1 of the Constitution and Section 2 of the 14th Amendment as requiring equal representation in both congressional (Wesberry v. Sanders, 1964) and state legislative (Reynolds v. Sims, 1964) districts.

In addition, Section 2 of the Voting Rights Act prohibits states from drawing districts that dilute the voting power of voters based on race. Compliance with the VRA can be a two-edged sword. For example, the US Supreme Court ruled in Cooper v. Harris (2017) that North Carolina went too far in establishing majority-black congressional districts and ordered the state to redraw its congressional map.

Another case has an oversized influence on how redistricting will be done in North Carolina this year. Stephenson v. Bartlett(2002) effectively ended the use of multimember legislative districts. It also created the “Stephenson rule” assigning smaller counties to “clusters” based on population. While counties may be divided into different districts within clusters, they cannot be divided between clusters. That rule limits how creative legislators can get when drawing state legislative districts and encourages the legislature to keep communities of interest together.

(While the county cluster process is somewhat complicated, here is an excellent primer on how it works.)

What further standards do we need?

So what other standards should be considered when redistricting? One would be to prohibit the use of political data, such as voter registration numbers and regional voting patterns. Such a prohibition, along with transparency in the process, was at the heart of court-ordered redistricting in 2019. While those orders do not apply to redistricting this year, legislative leaders including House Speaker Tim Moore and Senate President Pro Tem Phil Berger have voiced support for using similar rules for this year’s redistricting.

Perhaps the legislature should get the rules down in writing before they begin the process. In addition to the current constitutional and legal requirements, the General Assembly could set standards to include:

  • Forbid use of voter registration data
  • Forbid use of past election results
  • Forbid use of voter’s demographic data, except as needed to comply with the Voting Rights Act
  • Forbid considering the addresses of incumbents when drawing districts
  • Make districts reasonably compact, consistent with other standards and North Carolina’s geography

The good news is that legislators do not need to spend much time researching and drafting legislation to create those standards. They were included in the two redistricting reform bills, HB 69 and HB 140, that had the most support in the last session of the General Assembly. Legislators could simply lift the redistricting standards language from one of those bills and modify it as needed.

Those standards plus a requirement for transparency in the map-drawing process would go a long way towards assuring an equitable redistricting process without the need for a commission.

As Director of the Civitas Center for Public Integrity at the John Locke Foundation, Andy focuses on government compliance with the law and best practices, particularly regarding election policy and law. He researches and writes on public and election integrity,… ...

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