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Feb. 10, 2003

Redistricting: It Ain't Over

By J. Barlow Herget

RALEIGH - The state’s legislative districts will soon be back in the news. As Yogi Berra might put it, redistricting ain’t over until it’s over, and it ain’t over.

That’s right. The legislative districts used in the November 5th, 2002, election were interim boundaries. An original redistricting plan was adopted in 2001 by the General Assembly following the 2000 Census, but those boundaries were declared unconstitutional by the state Supreme Court. (The state legislature also draws new congressional districts at the same time. Those districts were approved and are not part of the current redistricting lawsuit.)

Redistricting is the constitutional responsibility of the legislature and, surprise, politics is very much an ingredient in the process. This is not illegal, but it has often led to some strange looking districts and begot the word "gerrymander" into the American lexicon.

Both parties indulge in gerrymandering. In 2001, for instance, Republicans here sued the state over the plan drawn by Democrats and next door, Virginia Democrats sued over their Republican counterparts’ plan. Arguments here focused primarily on the 2001 plan’s excessive crossing of county lines to form districts. The experience has prompted some to call for an Independent Redistricting Commission. Such a commission could reduce the costly and time consuming wrangling in the General Assembly.

Traditionally, the political party in power tries to protect its incumbents and help its party when shaping the districts. In 2001, both the Senate and the House were controlled by Democrats. But Sen. Hamilton Horton, Jr., R-Forsyth, has written about how the 2000 election, thanks to gerrymandered districts, produced only 15 out of 50 seats for Republicans even though they received 49.84 percent of votes cast in state Senate contests.

The redistricting plan that emerges from the court case, known as Stephenson v. Bartlett, will set district boundaries until the 2010 Census. So, this is not beanbag. Nothing less than control of the legislative branch of government is at stake. There also is the issue that the courts, in 2002, usurped the legislature’s redistricting responsibility and injected judicial partisan politics into the result.

The 2001 plan was found unconstitutional by conservative Superior Court Judge Knox Jenkins of Smithfield and later in April 2002 by the state Supreme Court on a party line vote, 5-2 with Republicans in the majority. The legislature, still controlled by Democrats, revised the plan, but Jenkins dismissed the 2002 revised plan, too.

Jenkins amazingly then drew up his own, interim plan, which resembled the Republican plan. The Jenkins plan immediately was challenged by Democrats and the State Board of Elections. But time was of the essence, and the Supreme Court ordered the Jenkins plan to be used for the 2002 primary and general elections.

The high court agreed, however, to hear arguments over the legislature’s 2002 plan this year. The tentative date for arguments is Thursday, March 13, at 9:30 a.m.

The Jenkins plan, which attempted to correct perceived Democratic excesses in crossing natural and county boundaries, did indeed result in districts that proved favorable to Republicans. Nov. 5 election results showed Republican gains in both state houses.

The Supreme Court has several options in making its decision:

One, the court may affirm the 2002 plan drawn by the legislature. That will end the matter. Two, the court may find the 2002 plan unconstitutional and order the legislature to draw a third plan. Three, the court may affirm part of the plan and order the legislature to fix the other part. Four, the court may throw out the 2002 plan and order the legislature back to the drawing board. If the legislature reaches an impasse, then the court may impose its own or another court plan such as Jenkins’ interim plan.

As for the outcome? The state Supreme Court is now dominated by Republicans by a margin of 6-1. But the Judicial Campaign Reform Act of 2002 also made all judicial elections non-partisan, meaning in future the justices will not be identified by party label. Redistricting cannot be wrung dry of politics, but the court’s treatment of the process should be what the public expects of its courts—fair and impartial justice.

Barlow Herget is a contributing author in "The North Carolina Century: Tar Heels Who Made a Difference, 1900-2000," and a former member of the Raleigh City Council.