It would take a flowchart to keep track of all of the gerrymandering lawsuits that have been filed in North Carolina over the last decade—federal lawsuits, state lawsuits, racial gerrymandering, partisan gerrymandering, state Supreme Court decisions, U.S. Supreme Court decisions, new maps, special elections, canceled special elections, new lawsuits, more new maps. It hasn’t stopped.
“It’s almost like you need to be a PhD,” says Bob Phillips, the executive director of Common Cause.
For almost twenty years, Phillips has been on the front lines of the gerrymandering fight—back when Democrats controlled the legislature and fiddled with the lines to their advantage while Republicans screamed bloody murder, and now while the reverse is happening.
His organization was behind one of the state lawsuits—and was connected to the other—filed in Wake County Superior Court that forced lawmakers to redraw districts this year.
Heading into next year’s election—and, in 2021, the next round of redistricting—Phillips sees an opportunity. If nothing else, lawmakers are on notice that extreme racial or partisan gerrymandering is illegal. Depending on how things shake out, they might even be willing to talk about creating an independent redistricting board.
That’s what he really wants. Phillips thought he was close to it in 2011, after the Republicans broke the Democrats’ stranglehold on the General Assembly. For years, they’d been in the wilderness, victims of districts drawn to minimize their power. Many of them had called for reform, but the ruling Democrats weren’t listening.
With the tea-party wave, the tables turned. Just like that, Democrats got religion. And just enough Republicans stuck to their guns that Phillips thought there was a chance at real reform. In 2011, the bipartisan HB 824—with David Lewis, a future gerrymanderer-in-chief, and Rick Glazier, now head of the NC Justice Center, among the lead sponsors—passed the House of Representatives 88–27.
Senate leader Phil Berger sent it to the Rules Committee to die.
Over the next two sessions, after the General Assembly crafted radically GOP-oriented districts and the lawsuits started coming, Phillips kept searching for a legislative solution. But the legislature wouldn’t budge. Even when bills were introduced with bipartisan support, he says, they were consigned to committee and left there to languish.
Phillips says he gave up in 2016, when, following a court order, lawmakers were redrawing the state’s congressional lines. The lightbulb moment came when Lewis—the same guy who had sponsored reform legislation five years earlier—declared: “I propose that we draw the maps to give a partisan advantage to ten Republicans and three Democrats, because I do not believe it’s possible to draw a map with eleven Republicans and two Democrats.”
To Lewis, this was a hyperbolic way of signaling that Republicans were engaged in partisan, not racial, gerrymandering. To Phillips, this meant that there was “no point in doing anything legislatively on this issue.”
Later that year, Common Cause filed a federal lawsuit challenging the now-admittedly partisan gerrymanders as unconstitutional. This was a new idea, that to explicitly and egregiously draw congressional districts to disadvantage one’s political opponents—a practice as old as parties themselves—was unconstitutional. The Court had already ruled that doing so on the basis of race wasn’t allowed, and, especially in the South, race and party were so intertwined that the intent was often irrelevant to the end result. As Common Cause’s case wound through the federal system, the Supreme Court voiced reluctance to decide what was and was not an acceptable level of partisan gerrymandering.
Then, in 2018, Justice Anthony Kennedy retired. He was replaced by the right-wing Justice Brett Kavanaugh, just in time for Common Cause to make oral arguments.
Even so, Phillips says, he was hopeful. He shouldn’t have been. In a 5–4 decision, the Court ruled, in essence, that there was nothing it could do.
“I was crushed,” he says. “But you pick yourself up. There’s more fight to be had.”
He went down to the legislative building right after the decision came down, where Lewis was telling reporters that the Court had vindicated them. Phillips told him he wasn’t going away.
He had another card to play.
Last November, immediately after the elections, Common Cause sued in Superior Court. Democrats had won more votes, and while they’d broken the GOP’s legislative supermajorities in 2018, they had not come anywhere close to claiming a majority. Common Cause argued that this reflected an extreme partisan gerrymander that was prohibited by the state constitution.
That case was heard weeks after the U.S. Supreme Court’s decision, and it produced a bombshell. A woman named Stephanie Hofeller contacted Phillips, who put her in touch with Common Cause’s lawyers. Her late father, Thomas Hofeller, had helped the Republicans draw districts in North Carolina and other states; she had his files and wanted to turn them over.
They contained a trove of information.
“We were blown away by what Hofeller was doing,” Phillips says. “It was breathtaking.”
Not only did the files suggest that lawmakers had lied to a federal court in order to delay a special election, but they also provided clear evidence that the Trump administration’s effort to add a citizenship question to the 2020 census was an attempt to aid Republicans in elections.
The Superior Court struck down the legislative districts. Surprisingly, the General Assembly didn’t try to appeal. It was unlikely to get a friendly ruling in the state Supreme Court, which Democrats control, but Phillips expected Republicans to try to run out the clock until it was too late to redraw districts yet again.
In retrospect, he thinks that this was canny. In a time crunch, the state Supreme Court might have taken the job upon itself. This way, Republicans could maintain some control. The districts they passed all but guaranteed that they’d keep the House, and probably the Senate. At the court’s urging, they also passed congressional districts likely to lead to an 8–5 GOP split, which the Superior Court grudgingly approved earlier this month, as candidate filing was about to begin.
For Phillips, what happens next is a question mark. If there’s a big Republican year, there will be little incentive to change the rules. If there’s a blue wave big enough to give the Democrats one chamber, maybe that’s the best scenario for a compromise.
But what if, somehow, there’s a blue tsunami, and Democrats take complete control of Jones Street—will the same people arguing for reform today sing a different tune tomorrow?
“If they cut and run,” Phillips says, “they would be paying a big price with the public, and we would be leading the parade.”
No matter what, he adds, “I hope we are in a different place than we were ten years ago. They have all supported this at one time or another. The trick is getting everyone on the same page at the same time.”
Contact editor in chief Jeffrey C. Billman at jbillman@indyweek.com.
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