Updated 5:17 p.m., Oct. 12, 2017
North Carolina's redrawn legislative districts were debated Thursday before a panel of three federal judges who had struck down previous district maps for racial bias.
The judges must decide whether to force another redrawing of the boundaries approved by Republicans over the summer or to allow them to be used in the 2018 elections.
Lawyers representing GOP legislative leaders and dozens of voters who successfully sued to throw out previous districts were subjected to 3½ hours of questioning by the judges, who did not immediately rule. Candidate filing is scheduled for February.
The judges had ordered the GOP-dominated legislature approve new maps by Sept. 1, in keeping with their decision last year that 28 House and Senate districts drawn in 2011 were unlawful racial gerrymander. Nearly all of the districts challenged by North Carolina voters in a lawsuit had majority-black voting age populations.
The previous maps were first used in the 2012 elections. They helped the GOP expand and retain veto-proof majorities in the two chambers, which in turn implemented a conservative agenda on taxes, education and social issues. The 2016 election of Democratic Gov. Roy Cooper has done little so far to stop it.
The voters' attorneys still found fault with 12 House and Senate districts that they want redrawn again. Four districts still have problems with racial bias, they wrote, while eight others violate the North Carolina Constitution's prohibition against mid-decade redistricting and a rule designed to minimize district boundaries crossing county lines.
"They have exceeded the authority that this court has ordered for a remedy," said Anita Earls, a lawyer representing the voters who sued.
Thursday's questioning focused chiefly on the Republicans' decision to ignore racial data about the state's population during the latest round of redistricting. During legislative debate, Republicans said leaving out racial considerations would fix the problems that the judges previously found with the districts.
"Basically, the map drawer started with a clean slate," Phil Strach, a private attorney representing the GOP leaders, told the judges. Strach said all of the districts now "clearly comply with the court's judgment, and the legislature did exactly what it was told to do."
But some judges were skeptical that race could have been left out of the equation for the new maps, which Earls said looked similar to the 2011 maps. The new maps were drawn with the help of Tom Hofeller, the map expert who helped the GOP during the 2011 redistricting.
"There is certainly evidence that he knew (racial data) in the first instance," U.S. Circuit Judge Jim Wynn asked Strach. "In drawing, the second map, you're saying he didn't know this?"
Strach said there's been no evidence presented that Hofeller had access to the racial data, and countered that the U.S. Supreme Court has acknowledged a mapmaker may have at least cursory knowledge of an area's demographics. Strach also asserted that the new House and Senate boundaries are markedly different from the 2011 maps.
The other two panelists — U.S. District Judges Catherine Eagles and Thomas Schroeder — questioned Earls and an allied lawyer about how much the legislature should have considered race in drawing the maps without making it the predominant factor in their deliberations. Eagles pressed for specifics when Earls said racial data should be considered to ensure the districts are fair.
"Why is it not good enough that they just started over, and did not consider race?" Eagles asked. Earls responded that the legislature's new maps can't be presumed to be constitutional, given that lawmakers already failed once drawing lawful maps.
The plaintiffs represented by Earls want the judges to replace the 12 districts they still find unlawful with alternatives they offered to legislators in August, or to send the job to a third-party expert known as a special master. Republicans object, saying these alternative maps favor Democrats.
Without showing how they'd ultimately rule, Schroeder and Wynn sounded more interested in handing alterations, if any, to a special master, to avoid making court decisions that might be deemed political.
"We don't want to get to picking one side over another," Wynn said.