The gerrymandering lawsuit challenging North Carolina’s district lines for seats in the state legislature is scheduled for trial this July. But it’s still unclear who might even testify at trial, or what documents each side can use.
Redistricting guru Thomas Hofeller redrew North Carolina’s political lines in 2011, hired by the then-brand-new Republican majority in the state legislature. After those were overturned as unconstitutional, lawmakers hired Hofeller again to draw new lines. Now those new lines are also facing legal challenges.
But Hofeller can no longer defend his work. He died last August in Raleigh at age 75. An obituary in The New York Times described him as “a father of the Republican strategy of cementing political control by controlling redistricting.”
So as the trial date for the anti-gerrymandering lawsuit approaches, the challengers are trying to figure out who might be deposed, and what emails, texts or other documents might be able to be used in trial.
That was the focus of a hearing Thursday in front of the three-judge panel that will ultimately decide the case.
Complicating matters is something called “legislative privilege.” Years ago the North Carolina legislature passed a law keeping its members’ communications private.
R. Staton Jones, an attorney for plaintiff Common Cause in the case, said they sought to take depositions from a dozen different lawmakers and staffers in January, but they claimed the immunity of legislative privilege. But in the last few days some of the lawmakers changed their minds, he said, which could throw confusion into the court case.
Wake County Superior Court Judge Paul Ridgeway, one of the three judges hearing the case, asked lawyers for the legislature what would happen if there was an email exchange between multiple lawmakers and staffers, some of whom had waived their immunity and some who hadn’t.
“Are we going to hear half of a conversation?” he asked.
Common Cause is also concerned that lawmakers or their staffers might try to claim immunity from being deposed, only to turn around and waive the immunity and testify on their own behalf at trial.
Ridgeway said the panel wouldn’t rule on how to handle lawmakers and claims of immunity immediately Thursday, but that a decision would come soon.
A slow process has been a concern of Common Cause, which alleges the state has been dragging its feet so far. Jones said they haven’t been given answers on “even basic information” like a list of lawmakers’ home addresses or the names of people who were involved in the redistricting process.
“I don’t think, when we filed this lawsuit more than four months ago, that it’s reasonable to be here today with so little information,” he said.
Phil Strach, an attorney for the legislature, said that in some cases Common Cause had asked for information it wanted from the wrong sources, or that the information was already in the public record and could be found without the legislature’s help.
And as for the matter of how the trial will deal with questions about Hofeller’s work, Strach said the legislature has held onto the computer Hofeller used in 2017 and therefore still has his files from that year’s mapmaking efforts.
He said if the 2011 process and Hofeller’s work then comes up, the state will attempt to answer any questions “to the best of legislative defendants’ knowledge.”
Congressional gerrymandering case
Besides the legislative districts, North Carolina’s congressional districts are also facing legal challenges. On Tuesday the United States Supreme Court will hear arguments in a lawsuit challenging them, as well as Democrat-drawn lines from Maryland.
The cases in both the Supreme Court and in state court are over partisan gerrymandering, which is different from racial gerrymandering.
Racial gerrymandering has been considered unconstitutional for decades. But courts have largely not ruled on the topic of partisan gerrymandering, and the Supreme Court never has.
In the North Carolina case at the Supreme Court, the arguments for the challengers will be led by Allison Riggs of the Durham-based Southern Coalition for Social Justice, as well as Atlanta attorney Emmet Bondurant. The legislature’s case will be argued by Paul Clement, the former U.S. Solicitor General under President George W. Bush.