Will House Bill 717 really fix population differences across judicial districts?

The State Legislature is proposing House Bill 717 to fix population discrepancies across judicial districts. But does H717 really fix these discrepancies? Or is there another reason for this bill?

It came out the week before last that Republicans believe they are close to passing legislation around redrawing judicial districts, and the big bill that we’ve been watching is House Bill 717. 

Is this related to the merit selection proposals by the North Carolina General Assembly (NCGA)?

There’s a lot going on in the judicial space right now. We recently wrote about a plan to change how North Carolina's judges get on the bench, with the NCGA planning to take the right for voters to elect judges and give it to...themselves. The General Assembly is also pushing to redraw judicial districts in case the merit selection plan fails. Evil geniuses.

Tell me more about this judicial redistricting business.

Justin Burr, bail bondsman and former intern for Jesse Helms, proposed House Bill 717 last June. He tried to pass it without anyone noticing, but intense pushback forced Burr to slow it down. He went around the state speaking with judges and court staff to understand how redrawing districts would impact how the court systems operate in North Carolina. He learned that a lot of lawyers and judges think his bill is a no good, very bad idea, even getting the disapproval of the North Carolina Bar Association.

Drawing judicial districts is hard.

The North Carolina Constitution guarantees the right for its residents to vote for their judges. Just like legislative districts, the NCGA draws the districts in which judges are elected. And just like legislative districts, the Voting Rights Act (Chisom v. Roemer) and the Equal Protection Clause of the U.S. Constitution (Blankenship v. Bartlett) apply to judicial elections. This means that legislators can't discriminate against minorities, and districts have to be equal (or very similar) in population size. You could argue that drawing judicial districts is more difficult than drawing legislative districts. Legislators have to create districts that are equal population in size, not dilute minority votes (this one really shouldn't be that hard), and consider caseload, which does not always correlate nicely with population. This is hard, which could be why the last time that judicial districts were drawn in North Carolina was over 60 years ago and it took a decade. Furthermore, districts in rural North Carolina share administrative resources, so mixing up these districts could mean completely reorganizing how districts have been operating on a day-to-day basis for the last 60 years. In short, this could be a mess if not done well. On top of that, if the legislature passes a map that gerrymanders based on race, or draw districts that do not abide by one person-one vote, it could mean additional expensive and long legal battles.

Does H717 violate the Equal Protection Clause of the U.S. Constitution?

H717 could end up in violation of the Equal Protection Clause if it is determined that some communities have less voting power than others, which is what was found in the recent Covington vs. North Carolina case. Democrats pointed out in June that some of H717’s districts maps are drawn in verrryyy similar ways to the State House and Senate districts that were found unconstitutional in Covington. In a recent committee hearing, Justin Burr, Champion for Making the Electric Chair Great Again, said that his maps would fix 60 years worth of population discrepancies that had bubbled up across judicial districts. When Democrat Floyd McKissick asked if he came up with ideal population sizes (which is common practice for drawing legislative districts), Burr said that No, he had not, because it was based on caseload for judges. Wait, wasn’t the entire point of this to fix population discrepancies?

These things cannot be the same.

Burr claims that his maps are drawn on population size, but failed to actually find an ideal population size for each district, which leaves one wondering what he meant when he said he was fixing population. He then claimed that they were based on caseload, but we know that caseload does not correlate with population. Because judicial districts must abide by the Equal Protection Clause, they have to take into consideration population and they can’t discriminate on race. Burr said that his new maps would not present any problems, but it’s clear that there’s almost no chance he’s doing this right.