North Carolina's Redistricting News
Journal: "N.C. Supreme Court affirms three-judge panel for
redistricting." April 22, 2004
The state Supreme Court said Thursday that a three-judge panel should hear the latest redistricting fight, marking a setback for Republicans looking to block the latest maps.
In an opinion with no dissenting justices, the court sided with legislative leaders and state attorneys who said the General Assembly had the authority to create the panel last year.
The panel, required by law to hear cases in Wake County, will decide whether state House and Senate boundaries approved in November are constitutional.
Republicans opposed to the latest maps argued that Johnston County Superior Court Judge Knox Jenkins still had the authority over redistricting. He struck down two earlier sets of boundaries, from 2001 and 2002.
GOP leaders said Democrats who control the state Senate and share control of the House intentionally took the case from Jenkins because they were unhappy with his past rulings.
Justice Bob Edmunds, writing for the court, determined that Jenkins was no longer the presiding judge over redistricting because final orders have been issued in the earlier litigation he heard. The Supreme Court has laid out all the constitutional requirements necessary for legislative maps, he added.
"The case is over," wrote Edmunds, adding that the GOP plaintiffs "do not have an ongoing vested right to venue in Johnston County."
In affirming a lower court opinion, Edmunds also wrote that the Legislature didn't create a new court when it agreed to a three-judge panel of Superior Court judges to hear the case. The Republicans said the panel wasn't in the state constitution, but the state argued that North Carolina has used such panels since the late 18th century.
"The General Assembly has recognized the unique nature of these infrequent but potentially divisive cases and has set out a workable framework for judicial review that reduces the appearance of improprieties," Edmunds wrote.
The ruling means the panel will hear additional arguments about the new set of maps that are to be used this year through the 2010 elections. Chief Justice Beverly Lake Jr. still has to name the three judges. One will be the senior resident Superior Court judge in Wake County, with one each from eastern and western North Carolina.
The candidate filing period for legislative seats laid out in these maps begins Monday for a primary election set for July 20, so time is dwindling for Republican attorneys to block the election.
Legislative leaders already have a pending lawsuit asking the panel to find the maps lawful.
Edmunds did acknowledge in the ruling that the GOP attorneys could sue in Wake County challenging the latest maps _ an action Rep. Leo Daughtry, a GOP plaintiff in the lawsuits, said was probable.
"Clearly, I'm disappointed," Daughtry, R-Johnston, said of the ruling.
Republican legislators contend the maps are illegal because they cross too many county lines, while legislative leaders disagree.
The federal government already has signed off on the maps because it says the boundaries don't appear to harm the political weight of minority voters.
Senate Majority Leader Tony Rand, D-Cumberland, said he hoped the elections now could come off as scheduled. The redistricting case already has delayed the primary by two months.
"I hope we can get on with this," he said.
North Carolina's new legislative map has been given final clearance by the federal government, two weeks after U.S. attorneys determined the redistricting didn't weaken minority voting strength.
The ruling affirms a July 20 primary date. The election had been pushed back by two months while the federal government examined the maps approved by the Legislature in November.
Assistant Attorney General Alexander Acosta told state attorneys on Tuesday that the department wouldn't object to the boundaries, clearing the maps through the 2010 elections.
Barring a late decision by state courts, which are still examining the state House and Senate maps, the election season should formally begin April 26 with the start of candidate filing.
The state Supreme Court heard arguments March 18 on a procedural issue related to which lower court would examine the maps. No date was set for the justices' decision.
Primary voters will choose a GOP challenger to Gov. Mike Easley and party candidates for Congress and the General Assembly among others.
Federal attorneys said Friday that they do not believe North Carolina's new legislative districts harm minority voters, a decision that keeps the state's July 20 primary on track.
The Justice Department, writing to a three-judge federal panel in Washington, said it will not challenge the state's latest House and Senate maps and has no problem if the judges declare them lawful.
The federal government's agreement that the maps conform to the U.S. Voting Rights Act is a victory for the largely Democratic leaders in the General Assembly who drew the districts that were approved in November.
Two earlier sets of maps were struck down by state courts for violating the North Carolina constitution.
Late last month, Justice Department attorneys asked the state to provide more information about majority-black districts held by two Democrats in Hertford County. State attorneys provided them with additional statistics that appear to have allayed their concerns.
In their letter, Justice Department attorneys told the U.S. District Court for the District of Columbia that the state has shown that the maps were "not adopted with a retrogressive purpose."
For the districts to take effect, the three-judge federal panel still must give its approval. Some Republican leaders who believe the maps are designed to keep them from gaining control of the state Legislature are still pursuing action against the new districts in state court.
It was unconstitutional for the General Assembly to transfer
judicial authority over legislative maps to a three-judge panel, according
to Republican plaintiffs in a lawsuit over redistricting.
The U.S. Department of Justice has before it a new, legislature-approved set of maps, and could end North Carolina's seemingly endless redistricting feud by approving or disapproving them within two weeks.
Tomorrow would be good.
Some Republican lawmakers and gubernatorial hopefuls opine that the department can't do that, and don't want to give it a chance. Instead, they say, the state Supreme Court must ensure that North Carolina has a primary, and a voice in the selection of presidential nominees, by ordering the use of a 2002 set of maps drawn by a Superior Court judge.
Well, we're for a primary, or a two-stage primary, or even, as a last resort, Iowa-style caucuses. But where do these mavericks get their certainty? What makes them so sure Justice can't do its job that they're trying to force the state to fall back, for the second time, on maps that were defended by the judge who drew them as (deep breath here) less unconstitutional than the General Assembly's?
Democrats are providing the noisiest criticism, but every member of the legislature knows what's going on. And there is bipartisan anger about a largely personal political feud that has been inflated into a constitutional crisis.
The appeal for Supreme Court intervention is an attempt to thwart a plan to field remap disputes to a panel of Superior Court judges. An order from the high court would trump that plan and leave the issue in the hands of one particular Superior Court Judge, Knox Jenkins, whose old maps suit the plaintiffs' personal agendas better than the new ones drawn and approved by the legislature.
Nobody knows how a judicial panel would handle the dispute - or if the judges would even consent to manage what the state constitution unequivocally says is a legislative function. But a few Republicans are so confident of the outcome if the case goes to Jenkins that they're maneuvering to make sure that he, and only he, gets access to it.
They may be wrong about Jenkins. The plan used in 2002 was his, and he did in fact lay claim to the issue, seemingly for all time. But Jenkins has no clear or consistent record as a Republican operative.
Unfortunately, that's not the point.
The disputants were wrong to stall the process by obstructing a plan that would settle disputes in timely fashion. And the plaintiffs are wrong to urge the state's highest court to dismiss a new and as-yet-unreviewed plan in favor of Jenkins' dusty and admittedly unconstitutional contrivance.
If time is of the essence, the Justice Department is the timekeeper. All these machinations are just so much clutter strewn in the path of progress.
Redistricting session moves into another day
By Scott Mooneyham
November 25, 2003
RALEIGH, N.C. -- Legislative leaders hoped to push through another contentious redistricting session in a single day.
It didn't happen.
Although the House approved its new plan in a lopsided 84-32 vote, the Senate was forced to delay voting on its proposal after leaders decided to make a final change, shifting four districts west and north of Charlotte.
Most lawmakers predicted new maps would be adopted Tuesday. The Senate was expected to roll its proposal into the House bill, a move that would procedurally speed matters.
But in the House, which debated its plan for just 30 minutes before voting, critics condemned the rush to approve the plan.
"The whole process was done in bad faith. There was no debate. There was no time to look at the maps," said Rep. Leo Daughtry, R-Johnston.
Daughtry also criticized the House proposal for dropping minority voting strength in 13 of 22 districts in which blacks make up 40 percent or more of the population.
He was joined in that criticism by Sen. Minority Leader Patrick Ballantine, R-New Hanover.
"You have retrogressed these African-American districts to protect white incumbents," he told Senate Democratic leaders.
Legislators are drawing new districts for the third time in as many years after two previous sets of maps were declared unconstitutional.
Daughtry and Ballantine were two of the plaintiffs in the lawsuit that led to the rulings.
The state courts ruled that district plans adopted in 2001 and 2002 unconstitutionally divided counties, creating unwieldy gerrymandered districts intended to benefit incumbents.
The rulings led Superior Court Judge Knox Jenkins to order legislative elections held last year using temporary maps that he approved.
The Republican legislators promised another court challenge after seeing the new maps Tuesday.
But House and Senate leaders noted that their proposals split fewer counties than an interim plan imposed by Jenkins last year.
"It is much more compact, if you can measure compactness, than the court's map. It is far more pleasing to the eye," said Sen. Tony Rand,
Sen. Dan Clodfelter, D-Mecklenburg, said a recent U.S. Supreme Court ruling, Georgia v. Ashcroft, provided more leeway to draw minority districts.
In a 5-4 ruling, the justices said lower courts reviewing redistricting cases should consider all factors and not focus solely on whether minorities can elect a minority candidate.
"Not only are we interested in having districts from which we can be elected, but we are also interest in having influence in other districts," said Sen. Katie Dorsett, a black Democratic senator from Guilford County.
The Senate plan reduces the black voting-age population in seven districts that have historically contained a majority of black voters. Six of those districts are represented by black senators.
A provision in the Senate bill also would create a new three-judge panel that would hear all future redistricting cases in Wake County.
The News & Observer (Raleigh)
Legislative maps spur GOP threat
By Lynn Bonner & Dan Kane
November 25, 2003
In a hotbox of recriminations, lawsuit threats and a party switch, state lawmakers tried Monday for the third time in two years to draw legislative maps that the courts will endorse.
Voters are supposed to cast ballots in the new state House and Senate districts in elections next year and through 2010.
But Senate Republicans immediately vowed to challenge the maps in court, saying the plans improperly dilute black voting power. And some GOP House members who
would have to run against other incumbents next year said angrily that Republican Speaker Richard Morgan was out to get them.
Without a public hearing and with only a half-hour debate, the House voted 84-32 to approve its plan for 120 districts. The Senate plans to vote on its 50-district map this morning; then the House will take final votes on the plans.
State courts declared two previous sets of maps unconstitutional. Before the new plans can be used, the U.S. Justice Department or a panel of federal judges must check them to see that they do not dilute the influence of minority voters.
Legislative leaders anticipate another lawsuit. "Oh, yeah," said Democratic Speaker Jim Black of Matthews. "Those who don't get their way go to court."
Though legislators have worked on the districts for months, refinements were made Monday when the special session convened. Senators were still discussing Monday night how to draw districts in four western Piedmont counties. The House plan was distributed one hour before members met to vote.
In the Triangle, the biggest changes would be in Durham, Orange and neighboring counties. For example, the seat now held by Sen. Wib Gulley, a Durham Democrat, would represent a district that includes all of Chatham and Lee counties instead of stretching north from Durham into Granville and Person.
"It's a breathtaking change," said Gulley, who has represented Person County for a dozen years. "This gall darn majority Republican Party Supreme Court decision has forced this kind of change on us."
In two opinions last year, the state Supreme Court handed down rules for the legislature to follow in drawing new districts. Legislators must draw compact districts that split as few counties as possible and abide by the federal Voting Rights Act when creating
districts with substantial numbers of minority voters.
From the first ruling against them by a Superior Court judge in Smithfield in late 2001, Demo-crats have complained that the courts were biased against them. The Senate moved Monday night to force redistricting lawsuits to be filed in Wake County and heard by a
three-judge panel drawn from throughout the state.
Also, the state Board of Elections would have the power to postpone next year's May primary if legislative districts weren't approved by the time candidates are to begin filing for office.
Senate Republicans said the Justice Department would reject the plans because African American voters were moved out of key districts. "You've taken minority voters out of minority districts to protect white Democrat incumbents," said Senate GOP Leader Patrick Ballantine, a Wilmington Republican.
Black senators, however, defended the proposed districts, saying that they give African-American voters wider influence.
"One thing we know does not work -- packing all African-Americans in the pocket," said Sen. Vernon Malone, a Raleigh Democrat.
Statistics prepared by Senate Democrats show their proposal gives black voters a chance to elect black candidates in nine Senate districts, compared to seven in the existing plan.
To begin the day, freshman Sen. Tony Moore of Pitt County announced that he is switching from the Democratic Party to the Republican. At a news conference where fellow Republican legislators welcomed him, Moore said he had been thinking about
the switch for some time, but the Senate redistricting plan, which puts him in a district with Sen. John Kerr, a veteran Democrat from Goldsboro, gave him the final push.
The proposed Senate map also puts Mecklenburg Republicans Robert Pittenger and Robert Rucho in the same district. Republican Sens. John Garwood and
Virginia Foxx are also in the same district, though Foxx is running for Congress.
The new House map drew plenty of criticism from Morgan foes. All four Republican districts that pit incumbents against one another include those who did not back Morgan for speaker.
Reps. Leo Daughtry and Billy Creech would have to square off in a district covering northern Johnston County, and the plan creates an open seat next door. "We expected it because I'm not loyal to Morgan," Creech said. "Nor is Leo, and so if you're not loyal,
you are his enemies, and he wants to get rid of his enemies."
A handful of Republicans stood outside the Legislative Building with signs denouncing Morgan.
But Morgan said court guidelines dictated the shapes of districts. "As for my political adversaries, some of them may be put together," he said. "Some of them may have good districts."
Reps. Connie Wilson and Ed McMahan would run against each other in Mecklenburg County. Wilson stormed off to Morgan's office when she saw the map. "I'm sure it's punishment for Ed McMahan, but I refuse to run against another Republican with the same voting record," she said.
Staff writer Lynn Bonner can be reached at 829-4821 or [email protected].
The News & Observer
Republicans who sued over legislative redistricting plans in 2001 revived their complaint in a Johnston County court this week in an attempt to push the General Assembly's redistricting schedule. In their suit, filed Tuesday in Johnston County Superior Court, Republicans ask the court to set a deadline for the General Assembly to approve new districts. If the legislature does not enact constitutional plans, Republicans want the judge to draw maps to be used for the rest of the decade.
As a result of the Republicans' last lawsuit, Superior Court Judge Knox V. Jenkins Jr. of Smithfield ended up drawing maps of House and Senate districts used in last year's election for all 170 General Assembly seats. The state Supreme Court had backed the Republicans' claim that the Democratic-controlled General Assembly drew districts that violated the state constitution. Jenkins' maps were good only for the 2002 election.
Because of court rulings, the General Assembly must draw a new set of plans, but legislative leaders have said they don't intend to hold a special redistricting session until mid-November.
Republican opponents of Republican House Speaker Richard Morgan worry that the redistricting plans will place them in unfriendly or undesirable districts. If the General Assembly approves its redistricting maps after Nov. 2, legislators won't be able to move and run from new districts next year. The state constitution requires that candidates live in their districts for a year before an election.
The plaintiffs in the suit are state Rep. Leo Daughtry of Smithfield, gubernatorial candidate Bill Cobey, former Rep. Art Pope of Raleigh, Republican activist Ashley Stephenson of Beaufort County and Sen. Patrick Ballantine, a Wilmington Republican running for governor. They are suing the state Board of Elections and its executive director, Democratic House Speaker Jim Black, Morgan, Senate leader Marc Basnight, Gov. Mike Easley and Attorney General Roy Cooper.
Staff writer Lynn Bonner can be reached at 829-4821 or [email protected]
RALEIGH, North Carolina (AP) -- Maps outlining North Carolina's state House and Senate districts drawn last year by the Democrat-led Legislature are unconstitutional, the state Supreme Court ruled Wednesday.
The four majority justices in the 4-1 opinion are Republicans and the lone dissenter is a Democrat. Two other Republican justices did not participate in the ruling.
The decision means lawmakers likely will have to draw legislative district maps a third time. The 2002 elections were held using interim maps drawn by a lower court judge.
A plaintiff in the case, Republican state Sen. Patrick Ballantine, said the decision "was a down-the-line victory for the voters of North Carolina."
"It reaffirms that the days of unconstitutional gerrymandering to protect incumbent legislators are over," he said.
A call seeking comment from the State Attorney General's Office, which defended the General Assembly in the case, was not immediately returned Wednesday morning.
Supreme Court justices in North Carolina are elected to eight-year terms. They previously ran with party affiliations but the next election, in 2004, will be nonpartisan.
The battle began in late 2001 when Republican legislators filed suit claiming that Democratic legislators unconstitutionally split counties in designing districts to give their party a political advantage.
Superior Court Judge Knox Jenkins agreed, ordering legislators to draw another set of maps. The Supreme Court upheld his ruling last year with an opinion that provided a criteria for lawmakers to use in drawing districts.
With the House split 62-58 in favor of Democrats, legislators drew a second set of maps but Jenkins threw out that set, too, ruling the lawmakers still hadn't complied with the criteria set by the Supreme Court, and drew his own maps to be used only for the 2002 elections.
"We conclude that the evidence supports the trial court's findings of fact, which establish numerous instances where the 2002 revised redistricting plans are constitutionally deficient," Chief Justice Beverly Lake Jr. wrote in Wednesday's majority opinion.
In dissent, Supreme Court Judge Sarah Parker said the majority argued redistricting decisions should be left to the Legislature unless they are "clearly erroneous, arbitrary, or wholly unwarranted."
North Carolina's legislative districts must be redrawn every 10 years to reflect changes in the census. But nothing requires that partisan politics must control the process.
It's not a pretty sight. In 2001, Democrats in the state House and Senate drew new legislative districts that seemed likely to give themselves continued control of the legislature. Republicans sued, arguing that Democrats failed to follow a constitutional requirement not to split counties. They won in Johnston County Superior Court and before the N.C. Supreme Court -- and came away with somewhat more favorable districts drawn by Superior Court Judge Knox Jenkins.
That set of maps led to some Republican gains in the Senate, which Democrats still control, and a narrow edge for Republicans in the House before a Republican legislator became a Democrat and put the chamber in a tie. Still with us?
But wait -- the issue isn't settled. The N.C. Supreme Court is hearing an appeal from the state of North Carolina, which argues in favor of earlier redistricting maps. Now the Supreme Court has asked Judge Jenkins to tell the justices why he drew the maps he did. No telling when it will end.
Is this a mess, or what?
There must be a better way. We've long favored the creation of an independent redistricting commission to divvy up the 120 House and 50 Senate districts without distracting the legislature from its increasingly difficult job of drawing the budget.
Now a coalition of public interest groups has united to support such a commission, and two exemplars of the political left and right have agreed to sponsor legislation to create it. Sen. Hamilton Horton, Republican of Forsyth, and Sen. Ellie Kinnaird, Democrat of Orange, are promoting the independent commission to redraw legislative districts as well as the state's 13 congressional districts every decade.
Sen. Horton explained last week, "The events of the past year should convince us, if we are honest with ourselves, that the General Assembly is simply incapable of redistricting itself fairly."
Sens. Horton and Kinnaird propose a nine-member redistricting commission with three members named by the governor and two each named by the Supreme Court chief justice, the speaker of the House and the president pro tem of the Senate. The commission would not take politics out of redistricting, but it would put politics in the proper context. For example, commission members would make decisions about political districts without having to decide how those districts affect their own districts, a consideration seldom far from the minds of legislators involved in redistricting.
Legislators don't like to give up powers affecting their own futures, so the proposed independent commission is a long shot at best. But we believe it's the best way of ensuring the drawing of districts that will allow voters to choose their legislators, rather than legislators choosing their voters.
RALEIGH, N.C. - A diverse group of lawmakers and public interest groups wants the General Assembly to abandon its current redistricting process and use an independent commission to draw political maps.
"Fundamental to our system of government is the proposition that those elected should reflect the preferences of voters," said Sen. Hamilton Horton, R-Forsyth. "But this idea is regularly thwarted by partisans who seek to skew elections in their party's favor - what we call gerrymandering."
Horton and Sen. Ellie Kinnaird, D-Orange, filed bills Monday that would create an independent commission to draw up new legislative and congressional district maps every 10 years. One of the bills would establish a constitutional amendment to ensure the commission operates into the future.
Horton and Kinnaird were joined at a news conference by members of several public policy groups to support the legislation, including The John Locke Foundation, Common Cause of North Carolina, Citizens for a Sound Economy and the N.C. State Grange.
The bill comes in response to a fight between Democrats and Republican over legislative districts that has lasted more than a year.
Legislative Republicans challenged House and Senate maps drawn by Democrats, claiming they unconstitutionally split counties to gain a political advantage. The case is still pending before the state Supreme Court, although Republicans won several rulings in lower and appellate courts.
Horton said the court fight is proof that an independent commission is needed.
"The events of the past year should convince us, if we are honest with ourselves, that the General Assembly is simply incapable of redistricting itself fairly," he said.
Both bills introduced by Horton and Kinnaird call for creating a nine-member redistricting commission.
Members would be appointed by the governor, chief justice, House speaker and Senate president pro tem. Each would appoint two members, except for the governor, who would name three.
Each person making appointments would have to include appointees from more than one political party.
Chris Heagarty, director of the N.C. Center for Voter Education, said an independent commission might do away with many of the lengthy lawsuits that result from redistricting after each census.
"It's like the political equivalent of the seven-year locusts, except it only comes every 10 years," Heagarty said.
Stateís highest court should know its limits
The redistricting ruckus that erupted last fall was one big mess, with cases bouncing from court to court. But the surviving issue, now before the state Supreme Court, is both simple and important.
Does a Superior Court judge have the constitutional authority to throw out a legislative district map and, without explanation, substitute his own?
To sneer that partisan motives are at work is to restate the obvious: Redistricting is about politics, is supposed to be about politics, and that's why the state constitution places the responsibility for it on the legislature. The separation of powers is, or should be, an abiding concern of all.
The constitution says something else, too: "No county shall be divided in the formation of a senate district," and "No county shall be divided in the formation of a representative district." Those provisions, hopelessly at odds with federal case law and the U.S. Constitution, were affirmed when the state Supreme Court threw out a Democrat-drawn map that was riddled with such divisions.
The new map that the Democrats thereafter presented to Judge Knox Jenkins was also thrown out despite a sharp reduction in the number of splits, and Jenkins substituted a Republican-drafted map that split only one less county.
So the Supreme Court, which had an easy time of it when ruling on the constitutionality of split counties, should now think long and hard before issuing a ruling of the little-bit-pregnant variety. How much unconstitutional county-splitting is constitutional, anyway?
This should long ago have been resolved by legislative repeal of provisions that circumstances had made anachronistic. But the correct outcome is likely only if the justices acknowledge that they have no authority to revise two unambiguous sentences in the document from which their own powers derive.
A second set of legislative districts approved last spring by the General Assembly should not have been thrown out by a lower court judge, lawyers for the state argued Monday.
Deputy Attorney General Eddie Speas told the state Supreme Court that legislators complied with the high court's ruling when it passed House and Senate districts that were then rejected by a Superior Court judge.
He said the lawmakers' district maps should be reinstated.
"Any other (ruling) would turn redistricting into a terminal judicial game of 'gotcha,'" Speas said.
The state is appealing a ruling by Judge Knox Jenkins, who threw out legislative districts drawn by the General Assembly in May and imposed his own interim plans.
Election district maps are redrawn every 10 years when new census numbers are released.
The maps in question were the second set drawn by the Legislature based on 2000 Census figures. The first set was rejected by the state Supreme Court for unconstitutionally splitting too many counties.
In that decision, the Supreme Court set out a criteria for lawmakers to follow in drawing new maps. The state's appeal will determine whether the Legislature complied with those requirements, or whether they will have to draw yet a third set of maps since Jenkins' plan was to be used only for the 2002 election.
Speas argued that the ultimate factor the justices should weigh is how many counties were split.
The Legislature's House map split one fewer county than the map imposed by Jenkins, while its Senate map split one more than Jenkins'.
Lawyers for the Republican lawmakers who brought the lawsuit said a broader issue is whether the Legislature followed the criteria laid out by the judge.
Raleigh lawyer Tom Farr said that didn't happen, and that the districts approved by legislators also were not compact.
"For 300 years, when we had districts based on county lines, those districts were geographically compact," Farr said. "Compactness is a part of the state constitution."
The Supreme Court isn't expected to make a decision in the case for several weeks.
RALEIGH, N.C. - State Supreme Court Justice Bob Orr is excusing himself from the legislative redistricting lawsuit because of a judicial misconduct complaint the state Democratic Party filed against him.
The Supreme Court is to hear arguments in the case March 13. At issue is whether the General Assembly must redraw legislative districts again, or use maps that a trial judge rejected last year before drawing districts of his own that were good only for last year's elections.
A complaint filed in July faulted Orr, a Republican, for making political remarks as master of ceremonies at a June fund-raiser for Sen. Elizabeth Dole. Among other things, Orr said he hoped Republican state Sen. Patrick Ballantine, a plaintiff in the redistricting suit, would be Senate majority leader someday.
Orr said the complaint compelled him to drop out of the case.
"It's a judgment call," Orr told The News & Observer of Raleigh. "Could my impartiality be reasonably questioned because of what transpired? Arguably, yes. I think the circumstances dictated this."
Instead of a generic recusal, which requires no explanation, Orr filed what the court calls a "remittal of disqualification" that refers to the judicial complaint.
Under the state Code of Judicial Conduct, a judge must disqualify himself from "a proceeding in which his impartiality might reasonably be questioned."
Orr will participate in the case only if all 15 parties to it - including the state's top Democrats - file written statements with the court that they want him to stay involved. Among the Democrats who would have to ask Orr to stay in the case are Gov. Mike Easley, Attorney General Roy Cooper, Senate leader Marc Basnight and House co-speaker Jim Black.
The controversy over Orr's remarks arose after the Supreme Court voted 5-2 along party lines to strike down district maps the Democrat-dominated General Assembly had created to reflect population changes.
Superior Court Judge Knox Jenkins then rejected the Legislature's second set of maps and drew his own for the 2002 election - which Orr criticized in a partial dissent.
The state Supreme Court on March 10 will hear the appeal of a lower court's ruling that, for the first time, had all legislative candidates running in districts drawn by a judge. The state Attorney General's Office is asking the high court to rule that Superior Court Judge Knox V. Jenkins Jr. of Smithfield acted improperly last year when he threw out legislative districts the General Assembly approved and replaced them with his own, without adequate explanation.
The attorney general, who is representing the State Board of Elections; Senate leader Marc Basnight, a Manteo Democrat; and Democratic House Speaker Jim Black, wants the Supreme Court to allow the state to use in future elections a second set of redistricting maps that Jenkins had rejected.
The appeal would be another step in a legal fight over legislative districts that began more than a year ago, when Republicans sued over redistricting maps the Democratic-controlled legislature drew in 2001.
The Supreme Court declared the 2001 plans violated the state constitution because legislators crossed too many county boundaries to create the districts.
Legislators should, as much as possible, avoid crossing county lines, the court's order said. The court also said that, under most circumstances, districts should have one member each.
The General Assembly drew another set of plans in May 2002, but Jenkins rejected them. Last year's elections were held using redistricting maps that Jenkins imposed.
The judge's maps helped Republicans in the Senate close their 20-seat deficit. Senate Democrats, who had outnumbered Republicans 35-15, now have a slimmer 28-22 edge.
In the state House, Republicans won a two-seat, 61-59 edge. The GOP advantage was lost when Rep. Michael Decker of Walkertown switched from the Republican to the Democratic Party, leaving the House in a 60-60 split.
Under the court order, the General Assembly should redraw legislative districts again this year because Jenkins' maps were good for only one election.
But if the Supreme Court agrees with the state's attorneys, the legislature would not have to redraw legislative districts again this session.
In a court brief filed Monday, the Republicans' attorneys said that the 2002 redistricting plans were unconstitutional and that the General Assembly should draw new maps.
The attorney general's complaint about Jenkins' taking redistricting out of the General Assembly's hands was actually a complaint about the Supreme Court subjecting redistricting to judicial review, the brief said. Once the legislature produces another set of maps, it should submit them to Superior Court to determine whether they comply with the Supreme Court's redistricting mandates.
The Republicans' attorneys said, if the lower court finds the next set of maps unconstitutional, the judge should redraw them.
Having drawn two sets of plans in two years, some legislators are tired of the politically charged task of drawing district lines.
Senate Minority Leader Patrick Ballantine, a Republican from Wilmington, wants the Senate to agree to adopt Jenkins' plans. Basnight did not appoint a redistricting committee last week, saying it might not be needed.
In the House, leaders are not saying how they plan to handle redistricting.
Republican Speaker Richard Morgan of Moore County said he had heard some in his party were proposing putting aside the redistricting fight.
"That's a school of thought in Republican circles that you just not do anything and leave them alone," Morgan said. "I'm not ready to say anything like that."
Staff writer Lynn Bonner can be reached at 829-4821 or [email protected].
The North Carolina legislature yesterday set a long-awaited primary date for the state's high-profile Senate race, picking Sept. 10 for the vote and deciding there would not be time for runoffs.
The primary, originally scheduled for May 7, was delayed repeatedly by court challenges to legislative redistricting. On the Republican side, Elizabeth H. Dole has only token opposition for the nomination to succeed retiring Sen. Jesse Helms (R). But the Democratic race includes three high-profile candidates: former Clinton White House chief of staff Erskine Bowles, former state House speaker Dan Blue and North Carolina Secretary of State Elaine Marshall.
Bowles has led Democratic polls after sewing up most of the party establishment's support, but Blue and Marshall hoped he would fall below 40 percent of the vote in a nine-person field, forcing a runoff. North Carolina observers said that without a runoff, Bowles remains a clear favorite.
Blue is the leading African American candidate in the contest, and blacks often make up 30 percent or more of the Democratic primary electorate. But North Carolina observers noted that June 30 financial reports showed Bowles with $1.7 million in cash on hand, compared with $42,240 for Blue and $37,500 for Marshall. Dole, a former Cabinet official and Red Cross president, had even more -- $2.5 million.
Heartening News for Bush
It has been a rough week on Wall Street, but President Bush might find comfort in a series of polls recently commissioned by the political newsletter Hotline. The surveys asked voters in the home states of 10 potential Democratic presidential candidates whom they preferred: Bush or their native son (or, in Connecticut, either of two native sons).
Bush topped all but two of his potential challengers in their states. In Massachusetts, Sen. John F. Kerry easily out-polled the president, and in Connecticut, Sen. Joseph I. Lieberman led by three percentage points.
Bush led by 14 points or more in head-to-head matchups in the home states of Sen. Thomas A. Daschle (S.D.), Sen. John Edwards (N.C.), Sen. Russell Feingold (Wis.), Georgia Gov. Roy Barnes, Rep. Richard A. Gephardt (Mo.) and former vice president Al Gore of Tennessee. A few others were closer. Sen. Christopher J. Dodd of Connecticut trailed the president by three points in his state, while Vermont Gov. Howard Dean ran five points behind the president in the Green Mountain State.
Democrats' efforts to regain an advantage in the fall elections took a hit Thursday when a panel of three federal judges refused to let North Carolina's election proceed using legislative district maps the General Assembly approved last fall.
The judges in U.S. District Court in Washington, which has jurisdiction over federal Voting Rights Act cases, said the federal court in Raleigh is best suited to hear the dispute. Democratic lawyers are expected to make their pleas again in a similar lawsuit during a previously scheduled hearing in U.S. District Court in Raleigh on Tuesday.
The court wrangling could determine when the state gets to hold its primary, originally scheduled for May 7. The maps that ultimately get used could help determine who controls the General Assembly.
Democratic legislative leaders are trying to thwart a series of legal victories by N.C. Republicans. After Democratic lawmakers drew and passed maps last fall that protected Democratic incumbents, Republicans sued and Superior Court Judge Knox Jenkins, in Johnston County, ruled those district lines were unconstitutional. The state Supreme Court agreed and let the trial judge oversee the drawing of new maps, which benefited Republicans.
Lawyers for the Democratic leaders argued Wednesday that state elections officials may not have enough time to hold a runoff, or second, primary if they must wait for the judge's maps to be approved by the U.S. Department of Justice, which examines districts to ensure they comply with the Voting Rights Act. The Democrats also argued that the judge's maps may diminish the influence of minority votes in some districts.
The three federal judges said there was no threat of irreparable harm created by waiting a few days and letting the federal court in North Carolina hear the dispute. The judges also pointed out that U.S. Justice Department officials signaled they will have completed reviewing Jenkins' maps in two weeks. State officials familiar with redistricting said those comments suggest the Justice Department will approve Jenkins' maps and in an unusually abbreviated time span.
Senate President Pro Tem Marc Basnight, D-Dare, said he hopes the case can be resolved quickly, "with no more disruption or confusion than (voters) have already suffered."
The three-judge panel in Washington could take up the Democrats' case later if they are unsuccessful in the federal courts in Raleigh.
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SMITHFIELD - Testimony from two state Senate Democrats, Tony Rand and Brad Miller, defending the shapes of state Senate districts marked the first day of a hearing on the constitutionality of the new redistricting plans.
Superior Court Judge Knox V. Jenkins Jr. heard lawyers' arguments and witnesses' testimony about the maps approved last week by the General Assembly in a courtroom packed with about two dozen legislators and their lawyers.
Jenkins must determine whether the new plans comply with an order issued by the state Supreme Court last month that declared the original maps unconstitutional and ordered them redrawn.
The court directed that counties, where necessary, be grouped into "clusters" to form districts that comply with federal law and the state Constitution.
Using a red laser as a pointer, Rand, the Senate majority leader from Fayetteville, showed Jenkins how clusters were formed in the Senate map.
Miller, chairman of the Senate Redistricting Committee, told how the Voting Rights Act districts -- or those where African-Americans make up the majority of the population -- were drawn.
Thomas Farr, a lawyer for Republicans who brought the lawsuit against the plans, argued that the newly adopted maps were unconstitutional because they did not strictly comply with the Supreme Court order.
The Senate redistricting plan Republicans submitted has two more districts composed of two-county clusters, and Voting Rights districts with higher percentages of minorities, Farr said.
Republicans don't want Jenkins to adopt their map, he said, but offered it to show there are better ways to draw districts.
Edwin Speas, a lawyer with the state Attorney General's Office, argued that Miller and Rand's testimony was important to understand how the districts were created.
Later, Speas said the plans were constitutional. He said the points highlighted by Farr and the differences between the Republicans' map and the Democratic map were minor.
"They say we didn't cluster exactly right," Speas said. "Are those differences of constitutional significance? They are not, Your Honor. This is not a case to be determined by who has the most clusters."
Jenkins will hear arguments on the House plan today.
Two Democratic House leaders, Rep. Joe Hackney of Chapel Hill and state Rep. Ronnie Sutton, chairman of the House Redistricting Committee, may testify. Farr may call state Rep. Art Pope, a Raleigh Republican, to testify.
Jenkins said he hopes to have a decision on the plans by Tuesday, the first day of the General Assembly's session. If Jenkins wants changes in the plans, he could order the legislature to make them, or make them himself.
Jenkins admonished lawyers for making political statements in their arguments. And after listening to Wednesday's courtroom barbs, he asked the attorneys to refrain from characterizing the motives of the other side.
"When we do that, we simply get away from what we're here for," Jenkins said. "It's more effective for a jury than for a proceeding like this."
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The General Assembly voted Tuesday, without long speeches or much discussion, to move a precinct between neighboring districts in the House redistricting plan.
The votes were 31-8 in the Senate and 58-28 in the House to correct a mistake in the House map approved last week. Before the House vote, Republicans were asked to vote against the correction, in case their 'yes' votes might be construed as approval of the entire redistricting plan.
The brief meetings Tuesday were the lull between last week's race to pass redistricting maps by a court-imposed deadline and the next pivotal scene in the legislature's redistricting drama that begins today, when a Superior Court judge in Smithfield holds a hearing on the constitutionality of the House and Senate plans.
Lawyers representing Republicans will try to convince Judge Knox V. Jenkins Jr. that the maps the Democratic-controlled General Assembly passed last week do not comply with a state Supreme Court order. Lawyers with the state Attorney General's Office will defend the adopted plans.
Jenkins' review is required by the state Supreme Court, which declared the legislative redistricting plans the General Assembly adopted last year unconstitutional because they split too many counties. Jenkins can accept the new maps as the legislature approved them, send the plans back for changes, or approve his own maps for use in this year's elections.
Republicans submitted alternative House and Senate plans to Jenkins.
State Rep. Art Pope, a Raleigh Republican, said the hope is that Jenkins will adopt the Republican plans, but a more realistic expectation is that he will use the GOP maps as a starting point to draw his own plans.
Democrats in the legislature were eager to defend districts that Republicans have targeted for criticism. Where Republicans see oddly shaped districts, Democrats see districts that connect similar communities.
Two of the wide targets in the House plan are districts that cross to tie Stanly County to Richmond County and Anson County to Montgomery County.
State Rep. Pryor Gibson, a Troy Democrat whose district would include Montgomery and Anson, said the Democrats' configuration is better than the Republican options because more counties are left intact and smaller counties are kept together.
"Stanly, Richmond, Anson and Montgomery have more in common than just the Pee Dee River," said Gibson, referring to the river that flows south along the county lines into South Carolina. "We have been paired in every way possible ..."
"... for decades," said state Rep. Wayne Goodwin, a Rockingham Democrat whose district would include Richmond and Stanly counties.
Democrats hope the judge will accept their plans, but they know the legislature might have to come back into session to make changes.
A House "skeleton session" -- a short meeting without votes -- is scheduled for Thursday afternoon, but House Speaker Jim Black told members that could change.
"Check your e-mail two, three times a day," Black told members, because the House might have to move quickly to react to a court decision.