Redistricting reform: A good topic . . . for 2020

Jan 2nd, 2011
by Jason Kay
from The Asheville Citizen-Times


Recently, Gov. Bev Perdue extolled the virtues of redistricting reform in North Carolina. While discussing reform is a step in the right direction, it's imperative that we learn from the lessons the state Senate first ignored in 1999, and explain why a quick fix in the short term isn't the right fix for the long term.


There's no two ways about it: the North Carolina Constitution requires that redistricting be performed by the General Assembly. By Constitutional requirement, the legislature and only the legislature has the power to draw district lines.


But as lawsuit after lawsuit over the past two decades has demonstrated, the current process is fraught with partisanship and legal gamesmanship.


In the early 2000s, the Stephenson litigation demonstrated that the State Constitution does, in fact, apply to redistricting. Only when federal law requires a different result does the Constitution not apply. This, of course, didn't prevent further redistricting maneuvers. Eventually, a judge had to draw compliant districts.


Shortly thereafter, the legislature drew them again and there was more state and federal litigation, culminating in the Pender County case. So in 2009, at the end of the 2000s redistricting cycle, the U.S. Supreme Court agreed with the North Carolina Supreme Court that the district maps had not yet sufficiently complied with the Constitution.


In North Carolina a redistricting map has not been constitutionally approved since the 1990s. The problems may go even further back than that — the Shaw litigation of the 1990s may not have quite produced Constitutional district maps.


The problems with partisan redistricting are obvious. The maps can be, well, partisan. While the new leadership in the General Assembly has given every indication that it will draw fair districts, the accusations of gerrymandering and the lawsuits that follow, are most certainly not extinct.


Bad redistricting maps and partisan legal bickering have prompted a number of redistricting reform proposals over the years. But as is almost always the case, the party not in power sees the dangers of abuse more clearly than the party in power.


As early as 1999, Republicans tried to get the Democratic legislature to pass a constitutional amendment to allow an independent commission to draw the district lines. As Gov. Perdue understands, those suggestions fell on deaf ears. Republican reform proposals have languished in various committees for more than a decade.


Now the shoe is on the other foot, and it's the Democrats who see the merit in reform. They want a fix right now before the new districts are drawn.


The real problem is that any reform proposal will inevitably do one of two things: It will either bind the legislature in how it draws district lines or it will not. If a reform solution proposes controlling the legislature in any way — by changing the rules, procedures or the decision making body — that solution is likely unconstitutional.


Again, the legislature and only the legislature has the power to redraw district maps and other than the whole county provision, no other requirements are imposed. Not even the legislature can change the Constitution without an amendment.


If it doesn't bind the legislature, what's the point of reform? All the political energy and controversy it would create, without fixing the real problem, would simply be a distraction, taking time and tax dollars away from more pressing issues. Since the reform could easily be undone in the very next legislative session, we'd be back to square one.


The talk of a quick and easy redistricting fix is overblown and fatally flawed. You cannot change redistricting in a meaningful way without changing the Constitution. That takes time, thought and public input.


Some of the proposals that involve getting public input, respecting the Constitution, handing over the districting power to an independent commission are all viable starting points, but they require debate.


If we are going to engage our elected officials in a meaningful dialogue surrounding redistricting reform, let's do it right. The right way takes time and thought. Who knows what we'll find in the course of these discussions. Maybe we'll find a system that actually keeps the voters in control of their legislators instead of the legislators controlling the voters.


Maybe we'll find that all this talk of reform is really just another way to prevent legislators from obtaining more power — on both sides of the isle.


Or maybe we'll slowly arrive at the conclusion that the framers understood more than we thought.


Whatever we decide, the Constitution must be at the center of any discussion we have about redistricting in North Carolina.


Jason Kay is a senior staff attorney at the North Carolina Institute for Constitutional Law, a nonprofit, nonpartisan organization devoted to educating the public, bar, and policymakers about constitutional issues, particularly economic and related issues, both national and in North Carolina.