More electoral chaos

by | Jan 10, 2018 | 2018 elections, Editor's Blog, Redistricting | 21 comments

Well, our election cycle is in chaos again. Yesterday, a three-judge panel ordered the state to redraw our Congressional Districts. This time, they ruled that the maps are an unconstitutional partisan gerrymander. In particular, Judge Jim Wynn’s ruling cited Rep. David Lewis’s comment that he drew districts that favored Republicans 10-3 because he couldn’t figure out how to draw them that would give them an 11-2 advantage.

While gerrymandering needs to be addressed and ended as much as possible, the court’s decision a month before filing begins is disrespectful of the political process. Candidates are already running in districts across the state. They’ve raised and spent thousands of dollars. Now, they don’t know whether they’ve wasted their time, energy and money or not. Maybe they’ll have a district in which to run, maybe they won’t.

It’s the second cycle in a row that the judges have done this to the state. In 2016, I was running. The district where I filed included the county where I grew up, where my parents still live and where my family has property and interests. When the districts were redrawn, that county wasn’t in the new district. Nor were several counties where I had strong networks. I stayed in the race but the disruption threw my campaign into disarray and altered the way I ran my race.

I can tell you that this morning campaigns across North Carolina from both parties are trying to figure out how deal with this decision. I can also tell you that, for challengers, fundraising is about to dry up, at least from in-state donors. Challenger campaigns should work their out of state networks until we know what’s happening. Most folks in other states aren’t paying enough attention to know what just happened. Incumbents will just turn to PACs, because, while their district boundries might be uncertain, they will almost certainly be running. From a financial standpoint, the decision yesterday burdens challengers and strengthens incumbents.

The Republican Party is going to ask the Supreme Court to stay the decision pending appeal. I suspect they will be successful. Two cases concerning partisan gerrymandering are already before the Supreme Court and a ruling is expected this summer.

I’m not a lawyer so I’m interpreting what I’m reading from people who have a better understanding of the laws than I do, but it seems that if the court upholds partisan gerrymandering, they would probably rule against the decision in this case and the districts would stay as they are now. If the court rules against partisan gerrymandering, then we’ll really be in a mess since we’ll be redrawing districts less than six months prior to the general election. There are no good answers.

What’s less clear to me is whether the Supreme Court’s response to the GOP’s request to stay the ruling sheds any light on what’s happening with the partisan gerrymandering cases. If they stay it, is that an indication that they’re probably going to allow partisan gerrymandering to continue? If they deny the stay, is that a sign that they’re about to try to end extreme partisan gerrymandering for good? I don’t know.

The only thing that’s obvious is that both the legislature and the courts have little respect for the election process. The legislature tried to draw districts that don’t reflect the nature of the state and give us no really competitive Congressional districts despite being among the most evenly divided states in the nation. The courts are making decisions in the middle of election years. They may view their decisions as larger than a single election but that’s not much comfort to those are willing to run for office this year.


  1. Mark Ortiz

    Well, we now have the stay, and today we have another ruling against partisan gerrymandering, in Pennsylvania.

    What I would expect now, based on recent precedent, is new districting, with a delayed primary. Not only was it handled that way in 2016, but also in 2004 as I recall.

  2. EBRUN

    OMG, have you hear the latest news that will drive NC liberals to new heights of frustration and indignation? SCOTUS just stayed (blocked) the three judge lower court’s ruling that NC must redraw our Congressional districts by later this month. Great news for representative government and bad news for liberal advocacy groups like the League of Women Voters and the ACLU.

    • Norma Munn

      Totally expected. Sorry to disappoint you. (Look at previous comments.) Why would the Supreme Court make any other choice since they have heard one case this year and have another on the calendar for argument in a few weeks. They will not approve of court decisions that are in essence before them until they decide those two cases in June. Allowing the decision to be implemented would have suggested that they had already made a decision before (1) hearing the second case (2) before any public announcement with the usual written opinions.

      • ebrun

        Wow, seems you are a lot more legally savvy than those three federal judges who ordered the districts be redrawn by the end of this month. Wonder why the three judges couldn’t figure that out?

        • Norma Munn

          No, I am sure they expected what the Supreme Court did. Frankly, they would have to be fools not to, which they clearly are not. You seem to think that having the decision put on hold is a slap at them. It is not. Judges (at least the smart and experienced ones) do what their training and judgement directs them is the correct decision regardless of what the Supreme Court will or will not do in the future. They will honor precedent, but independence by both district and appeals courts is a hallmark of our federal judicial system. These three judges may also have wanted to go on record as opposed to partisan gerrymandering before the Supreme Court makes it final decision on the two cases before them. Influence goes up the ladder in our judicial system, not just down.

          I would hazard a guess that in this case, the appeals court was also deeply annoyed with the NC legislature for re-gerrymandering the districts even after the court’s first decision instructed them to re-do the districts without tainted outcomes. (My words, not theirs.) That second redrawing of the districts to keep the gerrymandering in place was a clear demonstration of no respect for the court. Sort of like the teenager who stays out late again after having been warned not to do it. There are consequences, and in this case, the court had made it clear in its previous decision that it was not going to accept gerrymandered districts — or at least not as gerrymandered as the NC legislature re-established. Unless one of the judges writes a frank memoir, we may never know anything other than what is in the decision, in which they expressed only clear and concise legal reasoning.

          • ebrun

            Your analysis of the lower court’s rationale seems dubious at best since the three judge panel rejected the GOP’s appeal for a stay just before SCOTUS issued its stay. If they expected SCOTUS to stay their decision, why wouldn’t they do it themselves. Do you think they are just trying to confront the Supreme Court? Usually, lower federal courts show deference to SCOTUS when their decisions are overturned or likely to be overturned.

            And you misrepresent the lower court’s decisions with respect to the two orders to redistrict. This first order was based on racial issues and did not address partisan gerrymandering. The General Assembly redistricted to follow the court’s order to remedy the court’s opinion regarding racial discrimination. Then a new suit was filed to deal with partisan gerrymandering, an entirely new claim.

      • Scott Cooley

        Hear! Hear! Well put.

      • ebrun

        The good news for Republicans and for the political precess process in NC is that the current districts will, in all likelihood, stand for the 2018 Congressional elections. As even Mr. Mills concedes, redistricting at this late date is totally disruptive to an orderly and fair electoral process.

  3. Tom

    I know of no evidence the courts could have acted more quickly. On the at-large election: the US Constitution allows that and there have been times and states which do that. It would be fun, wouldn’t it? Some years ago the threat of at-large election sped up the General Assembly’s lagging work at re-districting.

  4. Norma Munn

    I have often been frustrated by the pace and timing of judicial decisions even though I know quite well that their job description does not, and cannot, include paying attention to the political arena’s needs or schedules. They are, as several have said, obligated to put the voters and their rights first. Some of the timing is not in their hands. They must allow counsel for both sides sufficient time to respond, to file briefs, etc. If they do not, any decision will not only be appealed, but almost certainly overturned. Would I prefer this decision several months ago? Yes, absolutely.

    As for the logic underlying the decision, I am surprised. They took a big gamble, and addressed the core issue involved in most gerrymandering. No one is going to get an answer as to whether this will stand until the Supreme Court rules on the gerrymandering cases before it, so any appeal will put the decision on hold. The Supreme Court is not going to reveal it’s thinking in advance of that decision. And, if they can find a way to avoid directly facing the question of partisan gerrymandering, I would bet on their avoiding it. I would take a bet on three of them being absolutely comfortable with partisan gerrymandering (Thomas, Alito and Gorsuch). Roberts may surprise us. He does notice the political arena and cannot be comfortable with the current contempt for long standing traditions within Congress, nor do I think he was happy with McConnell’s conduct vis a vis the replacement for Scalia. Nor is it likely that Kennedy was. Both may be coming to realize that gerrymandering, no matter who does it, has long term harmful repercussions. We need a system in which neither party can be too comfortable in their seats. Elected officials should be concerned about all the voters in their districts and not have districts designed to conform too much to their political preferences. Gerrymandering creates the opposite.

    Sorry, Thomas, but my voting rights just have to outweigh the needs and rights of those running. And yes, this is a big mess, expensive, frustrating for those trying to run and ultimately for the voters. It could, however, have been avoided if the GOP members of the NC legislature had shown even a modicum of respect for a fair process in the redistricting. Place the blame where it truly belongs.

    • Philip

      Re: Norma Munn’s comment–your analysis of the members of the Supreme Court and their likely thinking on this issue is well reasoned. It may well boil down to Kennedy and Roberts deciding whether they are partisans or patriots. All we can do is pray they will do the right thing.

  5. Mark Ortiz

    I have a suggestion. How about no districts at all? Elect the 13 US representatives at large, as follows:

    A party may have up to 13 nominees, but the voter only gets to vote for one, as at present, in both the primary and the general. The top 13 in the primary get nominations. The top 13 in the general get seats. Unaffiliated candidacies would be permitted.

    At first glance you might suppose that this would make campaigning and fundraising prohibitive, since the race would be statewide. However, it appears to me that the threshold number of votes to get a seat might well be less than at present, because the best known candidates would very likely get way more than they need to win a seat. That means that if you have enough support to win a plurality in a district, that would probably get you in the top 13 even if you get few votes in other parts of the state.

    Not only would this eliminate the entire question of gerrymandering, at least for US House, but it would also create a more diverse spectrum of political opinion in Congress. It would open the door to candidates with a strong ideologically minority base, somewhat like European party list style proportional representation, but without requiring a candidate to secure nomination to a party list.

    This would be constitutional under both the US and NC Constitutions. An act by the legislature is all it would take.

    • Philip

      Wonderful suggestion. For all the reasons you explain. And, for all those reasons, the chance of this happening is somewhere between never and zero.

      The legislature, controlled as it presently is, would never vote to weaken the power of the current majority. Neither would the opposition party should they take control. And both major parties would lock arms to prevent a third party from getting a foothold.

      The only remote way such a scheme would become law is if the Constitution of the State of NC were amended. And that, ladies and gentlemen, ALSO requires approval of the Legislature, so good luck with that one.

    • Norma Munn

      Interesting, but aside from the NC legislature and NC Constitution, I wonder if the portion of your comment – “because the best known candidates would very likely get way more than they need to win a seat” does not suggest a serious weakness in the idea. Getting well known in some areas still requires more money than many ordinary, but very capable and smart people, have or can raise.

      Yes, social media is an alternative way of becoming known, but given the prevalence of nonsense passing for information, I fear that would be even worse than ignorance.

      And quite frankly, I doubt being well known is a good criteria for putting someone in public office or voting them a judgeship. I understand why we all use it as a basis sometimes for our vote, but I think it allows our prejudices to over rule serious evaluation of a candidate.

      However, I would take your suggestion over the mess we have now. Certainly be interesting to see how either the GOP or the DEMs would retain a majority given the number of fed up, rapidly becoming independent voters in the state. I have vowed privately that the first Democrat or non-GOP person for whom I vote in this state who moves one inch toward gerrymandering will have me sitting in or outside their office for as long as I can. I want an end to this idiocy.

      • Mark Ortiz

        Since posting my original comment, I have learned that although the Constitution would permit what I suggested, there is a US statute that would need to be repealed.

        It was enacted in 1967. It was sponsored by Sen. Howard Baker Jr. of Tennessee, who later served as Reagan’s White House Chief of Staff for two years. It was intended to prevent states from adopting the kind of at-large elections we usually see, where the voter votes for as many candidates as there are seats to be filled. Southern states were considering moving to that as a way to get around the Voting Rights Act and disenfranchise racial minorities. At the same time, New Mexico and one other multi-Representative state had been having at-large congressional elections of the usual kind historically for some time. The Act let those states continue to do that for 1968, and required that thereafter all states would have to have single-member districts.

        This points up that it makes a huge difference how at-large elections are done. If they are done in the usual manner, they tend to reduce diversity of representation. A party or philosophy or group can win all the seats even if it is strongest by only a very small margin. But that changes dramatically when the voter votes for only one candidate.

        It would also be possible for the voter to vote for two, or some other number between one and the number of seats to be filled. The greater that number is, the more normative the system becomes. Diversity of representation is maximized when it’s one.

        • Norma Munn

          Thanks for the additional information. The “secrets” of our history are so easy to forget or overlook.

  6. Peter Harkins

    Thomas, wonder what you might have had the three do?

    Postpone the publication of their decision until after the November elections?
    Publish, as they have, but issue a stay until after the elections giving as a reason the cases before the Supreme Court right now?

    Respectfully, until and unless we can insert comity into the redistricting process though a nonpartisan group drawing the lines, and/or add “compactness”, a lovely math concept, to one-man-one-vote and contiguity in forming districts, I fear we are doomed to flailing (or failing) ;-).

    Collectively we Tar Heels are responsible for the current crop of “Honorables” in Raleigh (lock up your women and children, they are returning shortly!). Why should we expect anything different? Comity has become a lost concept.

    Yep, should the Panel’s order stand, it will certainly add to the political muck this year. But albeit painful, like a root canal sans opiates, we’ll survive. Probably. 😉

    Uncle Grumpy

  7. Wayne Cooley

    I have to agree with A. Reed and respectfully disagree with the chaos statement by Mr. Mills. While the facts he brings forward are correct, the conclusion–as pointed out by Reed–is mistaken. Rather than seeing chaos as a result of the court’s decision, I see for the first time a real commitment to the one person/one vote principle without adulteration by race or party. What Mr. Reed sees as chaos for candidates and fundraising I see more as an inconvenience. The greater good is served by ridding our state and our country of the notion that it is all right to build the electoral system so it favors one party, one race, or ANY other group over another.

  8. Laura

    I have to agree with the sentiments already posted. I almost always like your essays, and agree with them, but this seems way off the mark. I sympathize with those running for office and the difficulties this will present, but this extreme partisan gerrymandering has been a gigantic problem for NC, and for the nation. I cannot see the court’s decision as anything but good news. Getting this right is far more important than the difficulties it imposes in this coming year.

  9. Philip

    Nice essay, Mr. Mills, but I seem to have overlooked the part where you offer a constructive solution to the problem. Oh, sure, it’s important to define the problem, but if you leave it at that, the job is only half done. Let’s hear your thoughtful suggested solution in the next posting. Thank you.

  10. A.D. Reed

    Gotta disagree with you on this one, Thomas. While it’s true that the court’s most recent decision might make it hard for campaigns this year, what matters more than any candidate’s needs is THE NEEDS OF THE VOTERS. WE have the right to have fairly designed districts that reflect our state’s population and its desires. WE have the right to get rid of unconstitutional, flawed, distorted districts that we have had to live with for the past 18 years — since the Democrats began with the snake districts in 2001, ’03, and ’05, and the Republicans took that sort of BS to a new level in 2011 and again more recently.

    WE ARE OVER IT. We the people want nonpartisan, fairly drawn, constitutional district lines that allow us to vote for and elect the candidates of OUR choice. And as a lifelong, avid Democrat and activist, I really don’t care about whether our need for fair districts makes it more difficult for you as a candidate — or any other candidate. Yes, I want Democrats to win, but far more importantly, I want WE the PEOPLE to win.

    And let me ad, in an unfortunately ad hominem way, that your column on this is really self-serving and whiny. You can do better.

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