Masters' Plans Might Raise Red Flags for High Court | Eastern North Carolina Now

    Publisher's note: The author of this post is Mitch Kokai, who is senior political analyst for the Carolina Journal, John Hood Publisher.

    Four days after their lawyers criticized the handiwork of a special master drawing new maps for N.C. legislative elections, Republican lawmakers learned that another special master will rework the state's congressional election map.

    It's unclear whether the nation's highest court would accept either special master's work.

    That's because lawmakers - and at least one federal judge - have questioned the courts' insertion of special masters into North Carolina's election mapmaking process, also known as redistricting.

    "While there is merit to the majority's procedure in identifying a Special Master at this juncture, I would not appoint a Special Master prior to the General Assembly's unsatisfactory enactment of a remedial plan," federal Judge Willian Osteen wrote in response to two colleagues in the case involving the congressional map. "I am not convinced any duties exist at this time for which an appointment is appropriate, nor do I believe there is an exceptional condition or any post-trial matter yet presented which cannot be effectively and timely addressed by the court."

    In essence, Osteen argues that colleagues James Wynn and Earl Britt have jumped the gun by agreeing to have an outside expert - the special master - draw an election map before the General Assembly has had a chance to respond to the court's order throwing out the existing map.

    It's the same argument legislators have been making ever since Wynn and two other judges appointed a special master in October to redraw state House and Senate election maps. Lawmakers contend that use of a special master usurps their constitutional role in the mapmaking process.

    Before explaining why the U.S. Supreme Court might respond favorably to that argument, a redistricting recap might help.

    After winning control of the General Assembly in the 2010 elections, Republicans had their first chance in 2011 to draw separate election maps for state House and Senate and congressional races.

    Critics filed lawsuits challenging all three maps. But all three survived both a review from then-President Barack Obama's U.S. Justice Department and an initial court challenge that started in state courts. Voters elected state lawmakers and congressional delegations under these three maps in 2012 and 2014.

    Unsuccessful in state court, the General Assembly's critics filed similar complaints about the election maps in federal court. Federal courts ended up tossing out all three maps.

    On the legislative side, voters used the 2011 map for 2016 elections. But a federal three-judge panel overseeing the case of Covington v. North Carolina forced lawmakers last summer to draw new House and Senate maps for 2018.

    The judges found additional problems with the second set of legislative maps. Rather than issue a court order striking those maps down, though, the judges simply expressed concerns about the maps. At the same time, the judges named Stanford law professor Nathaniel Persily as a special master in the case. The judges ordered Persily to draw his own maps.

    A Jan. 5 hearing in Greensboro gave GOP lawmakers and their critics a chance to critique Persily's work. Both sides now await a ruling from the three-judge panel.

    Legislative leaders have registered specific objections to Persily's plan. Perhaps as important, they have objected to the appointment of a special master in the first place. Lawmakers have argued that the three-judge panel should not have named a special master without officially rejecting the General Assembly's maps first.

    In addition, legislative leaders argue that the General Assembly should have had the first shot at correcting any deficiencies in their 2017 legislative maps. They contend that hiring a special master while lawmakers' maps remained in legal limbo short-circuited the normal redistricting process.

    Now, history appears to have repeated itself to some degree with the state's congressional map.

    Unlike the legislative maps, North Carolina's congressional districts did not survive the 2016 election cycle. Before the U.S. Supreme Court ultimately ruled the original 2011 congressional map unconstitutional because of racial gerrymandering, the state already had replaced that map with a 2016 plan that removed all consideration of voters' race.

    Lawmakers explicitly based their 2016 map on the partisan goal of electing a U.S. House delegation of 10 Republicans and three Democrats. Two separate lawsuits challenged that map on the basis of overly partisan gerrymandering. After hearing arguments in the consolidated cases in October, a three-judge panel waited until Jan. 9 to throw out the congressional map.

    While giving the General Assembly an opportunity to draw another map - the third congressional map this decade - the judges declared their intent to appoint another special master to draw his own map at the same time.

    There's no doubt that legislators will object to a special master drafting a plan before they've had even one chance to address the three-judge panel's concerns. And, in this case, Osteen agrees.

    As with most redistricting lawsuits, the losing party is virtually guaranteed to appeal to the U.S. Supreme Court. While there's no suggestion that the justices based in Washington, D.C., will object to the idea of naming special masters, the particular circumstances of North Carolina's cases might raise concerns.

    To understand why, consider the high court's first consideration of the legislative redistricting case.

    Back in June, a unanimous Supreme Court upheld the three-judge panel's decision to throw out legislative election maps used from 2012 through 2016. The high court issued that ruling without comment.

    At the same time, though, the unanimous Supreme Court also upbraided the three-judge panel because of its plan to order special legislative elections in 2017.

    The justices chided their lower-court colleagues for leaping to an order of special elections after addressing possible remedies in the case "in only the most cursory fashion" and using "minimal reasoning." The unanimous court called the three-judge panel's decision "clearly at odds with our demand for careful case-specific analysis." Justices lacked "confidence that the court adequately grappled with the interests on both sides of the remedial question before us."

    Legislative leaders contend that the appointment of special masters represents another example of the three-judge panels rushing toward a predetermined remedy. Lawmakers say it's their job to redraw maps - not the special masters' job. Osteen's commentary in the congressional case echoes their criticism.

    If the Supreme Court agrees, it might be hard for anyone to gain special mastery of North Carolina's ongoing redistricting saga.