Politics & Government

Josh Stein plans to speak out against gerrymandering. So how will he handle defense of NC maps?

N.C. Attorney General Josh Stein has delegated oversight of his office’s defense of redistricting cases to two career attorneys in the state Department of Justice so he can speak out against partisan gerrymandering.
N.C. Attorney General Josh Stein has delegated oversight of his office’s defense of redistricting cases to two career attorneys in the state Department of Justice so he can speak out against partisan gerrymandering. N&O file photo

Josh Stein, North Carolina’s attorney general, has delegated oversight of his office’s defense of state redistricting maps to two career attorneys so he can speak out publicly against partisan gerrymandering.

“In a democracy, voters should choose their elected representatives, not the other way around,” Stein said in a statement released Friday. “Partisan gerrymandering turns this fundamental principle upside down. It rigs the system against the voters in favor of the politicians who draw their own districts. Partisan gerrymandering undermines democracy itself. It’s wrong and damaging, no matter which party does it.”

Stein, a Democrat, served in the state Senate in 2011 when the Republican-led General Assembly adopted district lines for state legislative and congressional seats that have been found by the federal courts to include unconstitutional racial gerrymanders.

In North Carolina, which has been described by New York University’s Brennan Center as one of the most gerrymandered states in the country, there have been at least five lawsuits filed in state and federal court challenging redistricting done by the General Assembly since 2011.

Several lawsuits focused on the maps that included 28 districts found unconstitutional after they were used to elect state House and Senate members. A panel of federal judges will review new lines approved by state lawmakers on Aug. 30 for those districts. The judges struck down the 2011 maps more than a year ago in a ruling that was unanimously affirmed by the U.S. Supreme Court.

Several lawsuits have challenged the congressional lines that have resulted in the election of 10 Republicans and three Democrats to the U.S. House.

One of the congressional lawsuits, focused on racial gerrymander claims, forced the General Assembly to draw new congressional lines in 2016, which were used in elections last year. Common Cause, an organization advocating for nonpartisan redistricting, and the League of Women Voters in North Carolina have challenged the 2016 lines and accused the General Assembly of extreme partisan gerrymanders that violate free-speech and equal-protection rights. A trial in that case is scheduled for Oct. 16.

Stein’s office has assisted legislators in defense of the various redistricting cases alongside private lawyers hired by the General Assembly. They did so when Gov. Roy Cooper was the state attorney general, and have continued in their role after Cooper was elected governor in 2016.

Stein delegated his oversight authority and responsibility for the state Department of Justice’s defense of the maps to Grayson Kelley, chief deputy attorney general. Kelley will oversee the department’s representation and supervise its attorneys.

Alec McC. Peters, senior deputy attorney general for special litigation, has been lead counsel on three of the cases and will continue to have an active role.

“To avoid any questions about the professionalism of the department’s representation of the state in cases involving claims of political gerrymandering, I have delegated my oversight authority for the Department’s defense of those cases to career attorneys,” Stein said. “I have taken this action because this is no ordinary disagreement over policy. As Attorney General, I have defended and will continue to defend laws without regard to whether I agree with them as a matter of policy. But partisan gerrymandering goes to the heart of the health of our democracy, and I will speak out publicly on this critical issue.”

House Speaker Tim Moore and Senate leader Phil Berger released a statement Friday on Stein’s plans.

“The maps passed by the General Assembly are not gerrymanders,” the Republican legislative leaders said. “If Josh Stein’s partisan political bias has blinded him to the fact that our maps abide by the strictest anti-gerrymandering standards in the entire country, then perhaps it’s best that he is personally recusing himself. He should have done the same with his clear conflict of interest in the Voter ID case.”

In the court case involving North Carolina’s overturned voter ID law, Stein disputed Republican arguments that he had a conflict because he had testified in court as a lawmaker and because his father had at one point represented challengers of the law.

“We still expect him to fulfill his oath of office and number one responsibility to voters by designating the full staff and resources necessary to vigorously defend the laws of this state,” Berger and Moore wrote.

N.C. State Bar professional conduct and ethics rules restrict what attorneys can say about a case while they are involved with it.

Michael Gerhardt, a UNC-Chapel Hill law professor whose expertise includes constitutional law, the legislative process and separation of powers, said Friday that while Stein might be trying “to walk a relatively fine line,” he did not think his action runs afoul of professional conduct or ethics rules.

“It doesn’t seem like there’s much doubt that those lawyers can handle the legal work,” Gerhardt said. “He’s trying to erect this sort of wall between the legal discourse and political discourse.”