Lawsuits could change the rules in North Carolina politics, balance of power in Raleigh

ASHEVILLE – Jake Quinn says his main job when he umpires baseball games as a volunteer for North Asheville Little League is to ensure each team is treated fairly.

"Before the first pitch is thrown, the score is 0-0 and the team that scores the most runs during the game wins the game," he said.

But, he says, "That's not the way elections work. With gerrymandering, one team starts out in the lead. That's fundamentally unfair."

A lawsuit in which Quinn is a plaintiff could alter the rules of the game in elections in North Carolina and across the country, dramatically curbing the ability of state legislators to draw political boundaries every 10 years to favor their political party.

A separate case may result in new district lines for several legislative races in central and eastern North Carolina. This would increase the odds that Democrats either take control of the state General Assembly or at least win enough seats to end Republicans' ability to pass laws without Gov. Roy Cooper's approval.

Or, judges could uphold actions of the Republican majority in the General Assembly in either or both cases.

More: NC's method of drawing districts threatens democratic process, reform advocates say

More: Politics or justice? Legislators consider shaking up voting for judges

If Quinn's side loses its case, the GOP would probably continue to dominate the state's delegation to the U.S. House for at least a few more years and possibly many to come.

If the challenge to legislative races is unsuccessful, that would make it harder for Democrats to make significant inroads on Republicans' control of the legislature.

Math in the courthouse

Quinn, a Democratic Party activist and retired federal employee, is one of three Asheville residents who are plaintiffs in two lawsuits that seek to get the courts to use mathematical tests to declare the state's congressional district lines unconstitutional.

The suits brought by the state League of Women Voters, Common Cause, Democratic Party and Democrats across the state have been consolidated into one case.

Judges for decades have shied away from using unequal treatment of political parties as a basis for striking down districts used to elect members of the U.S. House of Representatives and of state legislators. Many have turned aside lawsuits alleging political gerrymandering, saying it is not the courts' role to become involved in political decisions.

But some judges in recent years have expressed sympathy for the idea that district maps drawn to help one party over another can violate voters' First Amendment rights or language in the Constitution guaranteeing every citizen equal protection under the law.

A problem has been how to decide just what a political gerrymander is and to what degree a district map must treat parties and their voters differently to be unconstitutional.

A 2016 lower court ruling in Wisconsin cited a measure called the efficiency gap in a ruling striking down state legislative districts.The maps gave Republicans nearly two-thirds of legislative seats despite winning only 49 percent of the vote in 2012.

It is derived from a formula using the number of votes considered "wasted." A wasted vote is a vote in excess of the number needed to elect a winning candidate or a vote cast for a losing candidate. Wasted votes are divided by the total number of votes.

The smaller the resulting number, the more districts reflect voters' desires, proponents say.

The Wisconsin case made its way to the U.S. Supreme Court for oral argument Oct. 3. Justices generally agreed that they dislike partisan gerrymandering, but disagreed over how to measure it or whether to do anything about it.

Justice Anthony Kennedy, thought to be a swing vote on the issue, appeared skeptical of arguments made defending the map. But Chief Justice John Roberts called statistical measures of gerrymandering "sociological gobbledygook."

A three-judge panel of federal judges in North Carolina is deciding now on how to rule on similar arguments in the two lawsuits challenging the state's U.S. House districts as partisan gerrymanders.

Under current district lines, Republican candidates won 10 of the state's 13 congressional seats in 2016, or 77 percent, despite getting only 53 percent of all votes in U.S. House races.

The Wisconsin case would have a major impact on the ultimate fate of the North Carolina one, which is likely to be appealed to the U.S. Supreme Court and could even be decided in conjunction with the Wisconsin one and a Maryland case challenging districts drawn by Democrats.

Attorneys in the North Carolina case do, however, offer other ways of measuring the bias of maps statistically. They might provide a way for plaintiffs to win the North Carolina case even if the Supreme Court does not adopt the efficiency gap methodology in the Wisconsin case.

If the Supreme Court upholds the lower court's decision in the Wisconsin, North Carolina's U.S. House districts would "be unconstitutional overnight," said Chris Cooper, a political science professor at Western Carolina University.

"We'd have to draw new lines and the new lines would benefit the Democrats," he said.

Cooper's read on comments made during oral arguments before the Supreme Court is that while justices have raised the possibility of changing the rules on redistricting, they will probably strike down the lower court's Wisconsin decision.

"The door is open and some justices have opened it," he said. But, "It just seems like the oral argument wasn't particularly favorable" toward adopting the statistical standard proposed in the Wisconsin case.

A tilted field?

Critics of the way maps are drawn today say they increase polarization between political parties and reduce participation in democracy. In districts where one party's candidate is almost sure to win, a party primary is tantamount to election and primary voters tend to be more liberal or conservative, the argument goes.

Aaron Sarver, a West Asheville resident and Democratic activist who is a plaintiff along with Quinn, noted organizations that handicap congressional races all say incumbent Republican Reps. Patrick McHenry and Mark Meadows are virtual locks to win re-election.

"Then we don't get a political debate on the issues here in Western North Carolina. McHenry and Meadows don't have to do a debate. They don't have to engage," he said.

"I don't believe they're listening to their constituents," Sarver said.

Quinn said Democrats also engaged in political gerrymandering when they were in power in Raleigh, but he said he would welcome a change that would also restrict Democrats should they return to the majority.

"Voting rights is something that is very important to me," he said. "Out of all the issues out there, that is the one that is my primary focus, even above Republican-Democrat ones."

He used another baseball analogy.

"When the playing field is tilted to favor one team or another, what kind of candidate is the underdog team going to field?" he asked. "Do you think the best and brightest is just going to step up and give it her all in the face of certain defeat?"

Chris Cooper said the current redistricting process does help more extreme candidates from either party get elected.

Changing it would help with that problem, "but it's not a panacea for polarization."

Americans and North Carolinians have self-segregated themselves into Democratic and Republican areas, he said, making it almost inevitable that some districts will heavily favor one party or the other.

The legislature's job?

The legislature adopted the current U.S. House district lines last year after previous ones were struck down in court. Judges said the old lines focused too much on racial considerations, cramming predominantly Democratic African-American voters into a few districts so that Republicans would have a better chance of winning in the rest.

Republicans today do not necessarily argue against the idea that the current map was drawn with partisan intent.

Criteria a legislative committee used for map drawing said it would attempt to preserve Republicans' 10-3 advantage among the state's U.S. House delegation.

“I acknowledge freely that this would be a political gerrymander, which is not against the law,” Rep. David Lewis, a Harnett County Republican and chair of one of the redistricting committees, said when the new map was being drawn up in February 2016. “I propose that we draw the maps to give a partisan advantage to 10 Republicans and three Democrats because I do not believe it’s possible to draw a map with 11 Republicans and two Democrats.”

Instead, some GOP officials say the redistricting system was set up in the U.S. Constitution to give the party in power the ability to draw districts and that the courts should respect the General Assembly's prerogative. They say courts have upheld partisan redistricting maps before and critics want judges to exceed their authority.

They are also skeptical of the idea that the degree of gerrymandering can be measured statistically or that adopting such a measure would be good for democracy.

Dallas Woodhouse, executive director of the state Republican Party, called the statistical tools critics of the congressional districts rely on "a lot of Democratic-inspired hocus-pocus."

Democrats' problems with the current map stem in part from the fact that so many of their voters live in North Carolina's largest cities and Democratic candidates have declined in popularity in rural counties, Woodhouse said.

That results in lopsided elections, he said. Redrawing districts to make them more competitive in the way critics suggest would result in sprawling, "octopus-looking districts" to take in urban, suburban and rural areas, Woodhouse said.

Using the efficiency gap as a measure of districts' fairness would discourage parties from nominating candidates in districts where they would have a hard time winning, he said, and there are other problems with the statistical standards proposed by political scientists and mathematicians.

"These egghead professors are not smarter than political people when it comes to politics," Woodhouse said.

He and state Sen. Ralph Hise, a Spruce Pine Republican who is now chairman of the Senate Redistricting Committee, say the statistical standards critics propose would essentially require proportional representation for parties in which their share of seats would correspond to their share of votes.

That's the way it's done in parliamentary democracies in Europe and other parts of the world, Hise said, but, "That is not our system. We set up individual districts where the voters choose a winner."

"I reject any philosophy that the Republican or Democratic party is entitled" to a particular number of seats, he said.

A chance for Democrats?

A three-member panel of federal judges is expected to rule in a few weeks on a continuing challenge to the district lines used to elect members of the state General Assembly.

The panel, made up of judges appointed by Democratic and Republican presidents, unanimously ruled in August 2016 that 28 of the state's 170 legislative districts unconstitutionally diluted the power of African-American voters. Judges said legislators had gone too far when they concentrated black voters in just a few districts.

After the Supreme Court upheld that decision, the General Assembly drew new districts last August. Republican legislative leaders said the new map was developed without considering race.

Attorneys for legislators and state residents who brought the suit are still arguing over the fairness of the new map and judges have brought in an outside expert, Stanford University professor Nathan Persily, to evaluate it. The debate has narrowed to twelve districts.

The filing period for state legislative and congressional races is set to run Feb. 12-28. It is unclear whether it will have to be delayed while the courts consider the challenge to legislative districts. Whatever the three judges decide will probably be appealed to the U.S. Supreme Court.

None of the districts in question are in Western North Carolina and the litigation is unlikely to change the lines of any districts in the mountains.

WNC residents may still feel the effects of the new lines already drawn, however, and the outcome of the court case. The new districts are expected to improve Democrats' chances to win some seats now held by Republicans -- prospects generally thought to be better this year because of the political mood of the state and nation.

Republicans hold 35 of the state Senate's 50 seats and 75 of the 120 seats in the House. If legislators vote in party blocs, Democrats would have enough votes to uphold vetoes by Gov. Cooper if they can switch as few as four seats in the House or six in the Senate from Democrat to Republican.

Chris Cooper, the WCU political science professor, says there's a good chance that will happen this year.

"That would take our governor from the least powerful in the country ... to where people would listen to him," he said.

"He would be more like a traditional governor and he would be able to have a veto ... which is one of the few institutional powers he has," Cooper said.

Changing lines change Congress

The share of votes for Democratic and Republican candidates for the U.S. House in North Carolina has not translated into comparable shares of the 13 congressmen the state elects. This chart shows the share of the all votes for House seats each party's candidates got in recent elections and the number of seats its candidates won.

2008

Democrats got 57.2 percent of votes and won 9 seats, or 69.2 percent.

Republicans got 42.5 percent of votes and won 4 seats, or 30.8 percent.

2010

Democrats got 45.2 percent of votes and won 7 seats, or 53.8 percent.

Republicans got 54.1 percent of votes and won 6 seats, or 46.2 percent.

2012

Democrats got 50.6 percent of votes and won 4 seats, or 30.8 percent.

Republicans got 48.7 percent of votes and 9 seats, or 69.2 percent.

2014

Democrats got 43.9 percent of votes and won 3 seats, or 23.1 percent.

Republicans got 55.4 percent of votes and won 10 seats, or 76.9 percent.

2016

Democrats got 46.6 percent of votes and won 3 seats, or 23.1 percent.

Republicans got 53.2 percent of votes and won 10 seats, or 76.9 percent.

Notes: Vote percentages do not add up to 100 percent because of votes for Libertarian and write-in candidates. Democrats did not nominate a candidate for the 9th Congressional District in 2014. If that race is excluded, they received 46.8 percent of votes that year. Figures are calculated from N.C. State Board of Elections returns.

A previous version of this story gave the wrong home county for Rep. David Lewis. He is from Harnett County.