Date: Mon, 9 Feb 2004 14:37:05 -0600

For Republicans & others who care about our state:

I've obtained an eye-opening Memo about redistricting that
you might like to see, & I have been granted permission to
share it.

I wanted you to see this before the flood of blather about
any delay in the Primary begins - - & have it as a sober
Reality Check.

Please circulate the Memo freely. Thanks!

charles gregory
Raleigh grassroots volunteer

Senator Patrick J. Ballantine
Office of the Republican Leader
North Carolina Senate
Raleigh , NC 27601-2808
(919) 715-2525
- - - - - - - - - - - - - -

Joel Raupe
Administrative Assistant
MEMO: Tuesday, January 13, 2004
TO: Senators Ballantine & Pittenger
FROM: Joel Raupe

RE: Stephenson v. Bartlett

On December 29, Judge Robert Hobgood of the Superior Court of Franklin County formally reaffirmed Stephenson as an on going and still unresolved case before the North Carolina Supreme Court.

While two detailed decisions authored by Chief Justice Lake seem to have been specific and clear about the legal way to harmonize state and federal requirements on redistricting, and the necessity of judicial review of the General Assembly’s compliance with those written decisions, much misunderstanding remains about why continued litigation benefits North Carolina.

There persists, for example, the erroneous notion that the continued pursuit of compliance with Stephenson, after the latest state legislative district plans were finally enacted in late November, threatens the Presidential and other Primary election schedules.

Even many Republicans do not grasp the fact that responsibility for any pending delay of the May Primary lays directly at the feet of the Stephenson Defendants.

In July 2003, the Defendants were ordered by the Supreme Court to make a further attempt at drawing legal legislative district plans - during the regular 2003 session of the General Assembly and in time for required judicial review.

The Defendants instead waited until late November and then passed legislative plans without a legitimate opportunity for public comment and with virtually no time remaining for the required judicial review of those plans ordered by the Supreme Court before the election schedule is underway.

The Defendants also added language to the maps that opened additional constitutional questions and added further unnecessary delay for a proper judicial review by the state courts. And, rather than seeking federal Voting Rights Act preclearance of these new maps by the Civil Rights Division of the U.S. Justice Department, the Defendants elected to seek such approval by trial in federal court.

Even if compliance with Stephenson were not pursued by the Plaintiffs, this last tactic would all but insure that the Primary election schedule would be delayed. It is unlikely such a preclearance trial can take place before the final resolution of Georgia v. Ashcroft, a still-pending case upon which the Defendants are heavily dependant for allowing retrogression of minority populations in the Voting Rights Act districts included in their latest legislative district plans.

While there have been intermediate opinions issued by the U.S. Supreme Court in Georgia v. Ashcroft, the final resolution of that case at trial will not happen before May, long after the scheduled Primary date.

Some still suggest the courts could separate the legislative Primary from the Presidential and other federal Primary elections. This is unlikely because the courts have shown deference to the General Assembly’s expressed will when parts of a challenged statute are not unconstitutional. Language in the latest redistricting bill directs the Board of Elections not to separate the legislative from other Primary election schedules when a delay becomes inevitable.

As to the plans enacted last November, the Defendants have, without question, appear to have made an attempt to be in compliance with Stephenson. Nevertheless, anyone familiar with the requirement for strict compliance with the clear and specific criteria, for legislative plans to be considered legal under state law, set forth in two North Carolina Supreme Court opinions (Stephenson I (May 2002) and Stephenson II (July 2003)) should ultimately have to admit the plans are not presently in compliance.

While I am most familiar with the state Senate plans, I note, in addition to retrogressing minority-voting strength in Voting Rights districts, the latest enacted map for the House fails to maximize the number of single and two-county combinations. That requirement was very specifically written in Stephenson opinion.

In contrast, the latest Senate plan certainly came closer to meeting the Stephenson criteria. Indeed, the plan demonstrates what may possibly be the maximum number of whole-county combinations, but fails to maximize the number of two-county combinations while unnecessarily and severely retrogressing minority-voting strength in Voting Rights Act districts to create, so-called, “coalition districts.”

Left unchallenged, the retrogression in the latest state Senate map would set a new national standard for retrogression far surpassing what was sought in Georgia, suggested as legal in intermediate opinions in that case authored by Justice O'Connor. In Senate hearings, Democrats specifically cited retrogression allowed (but less far-ranging) in those intermediate opinions in Georgia - a still unresolved case - as allowing them to dilute minority voting strength in Voting Rights Act districts.

When combined with the decisions already obtained, the Stephenson Plaintiffs’ proposed remedial maps demonstrate again that they continue to have an excellent case. The Stephenson Plaintiffs chances of ultimate success are perhaps greater than when the case was originally filed in 2001. However, the Defendants appear to hope the resolution of many state and federal challenges will run out the clock before Council of State elections must be held in 2004.

No figure has been made public of the amount of taxpayer money the Defendants have spent losing Stephenson in venue after venue. Even in defeat, such funds will not have been truly wasted if, at last, after a third Stephenson opinion is handed down, a necessary check upon partisan gerrymandering will have been achieved; one that respects communities of common interest and the importance of counties and the proper representation of their interests, and that of the voters, in the legislature.

--- Joel Raupe