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A Second Bite at the Apple?

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Following the 2010 census the North Carolina General Assembly prepared redistricting plans for both houses of the state legislature and for the US House of Representatives. As required by federal law, the plans were submitted to the US Department of Justice for "preclearance," and it was determined that the changes did "not have the purpose and will not have the effect of denying or abridging the right to vote on account of race or color." Nevertheless, within a few months of their enactment by the legislature in July of 2011, a large number of individuals and organizations, including the North Carolina Conference of Branches of the NAACP, challenged the new plans in state court complaining that they did, in fact, abridge voting rights on account of race. The complaints were subsequently consolidated into one case called Dickson v. Rucho.

In July of 2013 a three-judge panel of the NC Superior Court upheld the redistricting plans. The plaintiffs appealed that ruling, first to the NC Supreme Court — which upheld the trial court — and then to the US Supreme Court. Having recently decided an important redistricting case from Alabama, the US Supreme Court sent the case back to the NC Supreme Court for reconsideration in light of that new precedent. After reconsideration, last December the NC Supreme Court again upheld the 2011 redistricting plans. It said:

We hold that the enacted House and Senate plans, as well as the federal Congressional plan, satisfy state and federal constitutional and statutory requirements and, specifically, that the three- judge panel’s decision fully complies with the Supreme Court’s decision in Alabama.

That might have been the end of the matter, but it wasn’t. In 2013 — shortly after the North Carolina trial court rendered its original decision in Dickson v. Rucho — the new US Congressional districts came under a separate challenge, this time in federal court in a case called Harris v. McCrory. The Harris plaintiffs repeated the claim that had previously been made by the plaintiffs in Dickson, namely, that the 2011 Congressional district maps abridged their voting rights on account of race. The State, for its part, denied that claim using many of the same substantive arguments that it had used in Dickson, but it also raised a procedural defense based on the legal doctrines of res judicata and collateral estoppel.

These closely related doctrines ensure that, once a court of competent jurisdiction has rendered final judgment in a dispute, the parties to that judgment may not relitigate the matter in question. The parties may appeal to a higher court, but they may not simply file a new complaint in the hope of getting a better result from a different judge or jury. Res judicata bars the relitigation of a previously adjudicated claim. Collateral estoppel bars the relitigation of a previously adjudicated issue or fact.

The State’s res judicata/collateral estoppel defense in Harris can be summarized by saying:

The claims and issues raised by the Harris plaintiffs were previously raised by NC NAACP in Dickson.

The Harris plaintiffs "were members of the NAACP before, during and after 2011 when the NC NAACP filed its complaint … in Dickson."

"Where an association is a party to litigation, federal courts have held that members of the association are precluded under the doctrines of res judicata and collateral estoppel from relitigating claims or issues raised in previous actions by an association in which they are a member."

"Allowing plaintiffs to avoid being bound by the state court’s judgment … is contrary to law and opens the door for endless legal challenges to the districts at issue here."

The US District Court for the Middle District of North Carolina didn’t buy this procedural defense. Nor did it buy the substantive arguments that had convinced the North Carolina courts to approve the new plans. Instead, just last month it found that, "Congressional Districts 1 and 12 as drawn in the 2011 Congressional Redistricting Plan are unconstitutional," and it ordered the State to "redraw a new congressional district plan." An appeal is underway, and it will ultimately be up to the US Supreme Court to decide whether res judicata and collateral estoppel apply in this case.

To complicate matters, the 2011 NC House and Senate maps that were approved by the NC Supreme Court have now also been challenged in federal court. The complaint was filed last May in Covington v. North Carolina. As in Harris, the Covington plaintiffs repeat claims that were previously made by the plaintiffs in Dickson, and, as in Harris, the State has raised the doctrines of res judicata and collateral estoppel in its defense. It will be interesting to see whether the US District Court for the Middle District of North Carolina reaches the same conclusions in Covington that it reached in Harris. It will also be interesting to see whether the controversy over the 2011 maps can be resolved before the next round of redistricting begins after the 2020 census!

Whatever one may think about the merits of the arguments, these redistricting cases make two things abundantly clear. First, it’s time to put an end to racial gerrymandering. It’s wrong in principle, and it can no longer be justified as a practical necessity. Despite ruling against the State, the US District Court majority went out of its way in Harris to note that it made "no finding as to whether individual legislators acted in good faith in the redistricting process." Going even further, one member of the panel, Judge Osteen, filed a concurrence for the sole purpose of saying:

I wish to emphasize that the evidence does not suggest a flagrant violation. Instead, the legislature’s redistricting efforts reflect the difficult exercise in judgment necessary to comply with [the Constitution and] the Voting Rights Act.

"Difficult" is putting it mildly. Federal voting rights law simultaneously requires and forbids redistricting based on race, and it uses an incredibly abstruse and subjective series of tests to determine whether any particular instance of racial gerrymandering succeeds in doing what is required while avoiding what is forbidden. Moreover, as these cases show, racial gerrymandering is no longer about race; it’s about politics. Why are the parties involved in this dispute interested in how black voters are apportioned among the various legislative districts? It’s not because those voters are black. It’s because those voters almost always vote for Democrats. The Republicans want to apportion them in a way that minimizes the number of Democratic majority districts, and the Democrats want the opposite.

Which brings me to the other thing that seems abundantly clear. It’s also time to put an end to political gerrymandering. In another concurring opinion in Harris, Judge Cogburn says:

Unfettered gerrymandering is negatively impacting our republican form of government….

Elections should be decided through a contest of issues, not skillful mapmaking. Today, modern computer mapping allows for gerrymandering on steroids as political mapmakers can easily identify individual registrations on a house-by-house basis, mapping their way to victory….

And he adds:

Redistricting to protect the party that controls the state legislature is constitutionally permitted and lawful….

Courts will not … interfere with gerrymandering…. It is left to the people of the state to decide whether they wish to select their representatives or have their representatives select them.

There’s an important message there for North Carolinians. We should institute non-partisan redistricting procedures that enable us to choose our representative rather than the other way round. Other states have done it. We can too.

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Jon Guze is Senior Fellow in Legal Studies at the John Locke Foundation. Before joining the John Locke Foundation, Jon practiced law in Durham, North Carolina for over 20 years. He received a J.D., with honors, from Duke Law School… ...

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