Nate Persily Appointed as Referee in North Carolina State Partisan Gerrymandering Case: What It Means

The three-judge state court which found North Carolina’s legislative districts to be unconstitutional partisan gerrymanders under that state’s constitution has appointed Stanford professor Nate Persily as the referee/special master in the case. This means that Persily at the least will evaluate for the court the maps that the state’s legislature is expected to pass this week, and if the judges are dissatisfied with what the North Carolina General Assembly has come up with, Persily will draw maps to be used for state legislative elections.

To begin with, it seems fairly likely that the court will call on Persily to draw new maps. The maps are being drawn by the NCGA in a strange way by beginning with some maps that were introduced into evidence in the lawsuit to demonstrate the bias of the old plan; these are not being drawn on a bipartisan basis. And the House just gave a few minutes notice before allowing for public comments on the map. This is not the kind of procedure I expect will endear the NCGA to the court, a court which already found unconstitutional action.

What kind of maps will Persily draw? I expect based on his track record that he will draw fair maps that will disappoint both sides. Almost by definition, the maps will provide less Republican advantage than the old maps. While Republicans will likely accuse Persily of bias (and did when he drew less Republican, but still Republican-leaning maps to cure partisan gerrymandering in congressional maps under the Pennsylvania state constitution), Democrats were not happy with the maps Persily drew in Georgia in the Larios case, and Democratic Speaker of the House Nancy Pelosi was not happy with maps Persily drew in a New York case. Both Democrats and Republicans have called for Persily to draw fair maps in the past.

But Democrats will likely be disappointed in that the maps are likely to still have a pro-Republican bias. That’s because the three-judge North Carolina court has limited the parameters of what the remedial map is supposed to do, and a lot of that can’t be touched by what Persily does.

But whatever Persily does, it is likely to produce a fairer outcome than the old maps found to be among the most extreme gerrymanders in the country. (Persily is not charged with redrawing the congressional maps which were at issue in the U.S. Supreme Court’s Rucho case; that was not at issue in this lawsuit and it may be too late to challenge them in time for the 2020 elections).

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