Thread by @lekhashupeck

Here at the Wake County Courthouse waiting for the hearing on @nclcv gerrymandering lawsuit's preliminary injunction motion to start #ncpol

We're getting started - the different attorneys are presenting themselves

No surprise, Phil Strach is here for the legislative defendants

Judge Shirley says that the cases - LCV's case and the Harper case - will be consolidated. Plaintiffs each say they will take 20-30 min. Legislative defendants say about 25.

LCV is going first. Says that plaintiffs believe that elections should be fair and free - cites Common Cause v. Lewis

Shirley asks if LCV would recognize that the Common Cause case is not binding. LCV says that it's an open question.

LCV says that it's sufficient to show a partisan gerrymander that maps are drawn to create a disproportionate partisan advantage.

Judge Shirley says that traditional redistricting has involved political considerations going back to colonial times.

LCV says that in colonial times there were also hugely disproportionate districts by population and that didn't stop the courts from instituting one person one vote

Shirley asks if any partisan gerrymandering at all is allowed under the NC state constitution

Shirley references that Stephenson said that politics could be considered

Shirley asks if partisan gerrymandering requires intent

LCV says that they do not believe so under the free elections clause of the state constitution

LCV says regardless there is a lot of evidence of intent and the Supreme Court precedent requires a very low level of evidence of intent in redistricting cases

LCV says that statewide elections where Democrats won would create a Republican supermajority under these maps

LCV says that the partisan results of these maps could not happen by accident

Shirley says that the fact that the governor didn’t get a veto over maps means that the people of the state preferred for the maps to be controlled by the most political body in the state government 🙄🙄🙄🙄

LCV says that these results are also not the natural results of political geography

Shirley asks if legislators can take the legitimate position that partisan gerrymandering is constitutional in North Carolina

LCV says that while they disagree that don't believe that it is a frivolous view.

Shirley says that the standard for declaring any act of the legislature unconstitutional is beyond a reasonable doubt. LCV says that they believe it is a preponderance of the evidence standard.

Shirley says the question is whether or not the state constitution allows any partisan gerrymandering at all.

Shirley asks for the difference between extreme partisan gerrymandering and lower level partisan gerrymandering. LCV says that the maps contain extreme partisan gerrymanders regardless.

Shirley asks if he denies this PI will LCV come back with a PI on the basis of racial gerrymandering. LCV says no - they do have racial vote dilution claims in their suit though.

Shirley says there are a lot of racial vote dilution cases that LCV could rely on if they wanted to do that however.

Shirley again asks if LCV believes that Common Cause v Lewis is binding.

LCV cites Quinn v Lattimore (sp?) that free elections means the majority must rule. Shirley asks if LCV knows the facts of that case - LCV doesn't seem to.

Shirley asks if we are determining the will of the people by statewide elections. LCV says that when you use those results you get an extreme partisan result

Shirley says that LCV is basing this on the idea that people vote for parties not individual candidates. LCV says this result is consistent across years of statewide election results.

Shirley asks if a Republican voter has the right to be in a Republican district. LCV goes back to the results of statewide elections on these maps.

Judge Poovey says that LCV's argument is for proportional representation (the perpetual boogeyman). LCV says that is incorrect - that smaller misalignments aren't an issue - the extreme gerrymandering is.

LCV shows a poster board with some kind of statistical chart I can't see well (maybe someone on webex can screenshot)

Now showing a poster board with Charlotte precincts by election result on the new Congressional maps. Now another one with Guilford county.

LCV describes the aggressive cracking and packing in Guilford

Shirley clarifies that the maps LCV is showing are Congressional maps. LCV says yes but this all applies to the legislative maps as well.

Now the Harper attorney is making their argument. This case is about the Congressional maps specifically. She cites the Lewis quote about 10-3 map - and says that this is the same kind of result in this Congressional map.

Harper attorney says that legislators specifically targeted the largest metro areas for packing and cracking. Now talks about the expert report from Pegden who did an analysis that generated thousands of maps.

She says that the same analysis from the same experts were given great weight by the unanimous court in Common Cause

Harper attorney is explaining how efficient gerrymanders are drawn.

Harper says it is clear beyond any reasonable doubt that this is an extreme gerrymander

Harper now summarizing the Common Cause opinion

Shirley is asking about state precedent regarding the use of the state constitution's Equal Protection clause. Harper says that the state Supreme Court has used that Clause in a more expansive way than the federal constitution in a number of voting rights cases

Harper says the irreparable harm is clear - millions of voters will be forced to vote in gerrymandered districts that prevent fair representation

10 minute recess before we hear legislative defendants argument

Phil Strach for the legislative defendants - says that Stephenson expressly allows partisan advantage - but the legislature "handcuffed" their ability to pursue partisan advantage

Shirley brings up the Wall Street Journal article citing the @princetongerry F rating of our maps. If the most favorable national newspaper for Republicans is citing that what does that mean.

Shirley asks what the partisan breakdown of the current Congressional map. Strach confirms it is 8/5

Strach says that the legislature handcuffed itself and regardless political coalitions change so no one knows what outcomes these maps will create

Strach talks about the "transparency" of the process.

Strach says the public had the opportunity to influence the districts in real time as they were being drawn. 🤬🤯🤯🤯

Strach says there was no election data in the computers used to draw maps.

Shirley asks who drew which districts. Strach says the committee chairs drew whole maps.

Judge Layton asks what base maps legislators started with. Strach says they started from scratch "didn't carry any prior work in with them"

Shirley says that the complaint alleges that they did use notes. Strach says he's not aware of that happening.

Strach says there were detailed explanations given for the maps (I think he's talking about all those media markets FINGER COUNTIES stuff)

Shirley asks what the composition of the Congressional delegation would be compared to the 2016 maps. Strach says he has no idea what the outcome would be 🙄

Strach says that no one actually knows what extreme gerrymandering is - all the experts have rigged the algorithms to make the results whatever they want ❗️❗️❗️

Shirley says that legislators face elections every two years - they know the political dispositions of their districts. Strach says that legislators were allowed to use that personal knowledge.

Shirley asks what the required criteria was. Strach says they followed Stephenson. Shirley asks if they drew VRA districts first. Strach that isn't what they think Stephenson says.

Strach says that there are very few municipal splits in the maps.

He also says there was a compactness floor?

Shirley goes back to the VRA districts - shouldn't they be drawn first? Strach says that they don't believe that - they think it talks about priority. Shirley reads Stephenson which says that should be drawn "prior" - that's temporal.

Strach says the legislature didn’t believe any VRA districts were required. Shirley asks if you would have to look at racial data to determine that. Strach says that they don't think you do.

Strach says that if they used racial data they would be accused of racial gerrymandering. And the court previously said that there was no racially polarized voting.

Shirley says that the court was referring to specific districts - not that there were no VRA districts in the state.

Strach says that case addressed districts across the state and nowhere met the Gingles factors.

Strach says that if Black people can be elected in districts under 50% no VRA districts are necessary 🤬

Strach starts talking again about how great the process was. He says there was some kind of briefing doc about the maps - which I have never seen

Shirley asks if that's the case how do you explain the plaintiffs' claim that the results are substantially similar to the results that the Common Cause court called partisan gerrymandering

Strach says the legislative redraw was approved by the court. And Republican representation actually went up after the 2020 election.

Strach says it's totally baseless to claim you know how any elections will turn out at all ever

Shirley says that the ultimate outcome of the elections begins at the district level. Strach says he doesn't think that's true.

Strach is literally saying that we can have no idea how any elections will ever turn out.

Shirley asks if Strach is saying the court was wrong in Common Cause. Strach says they were wrong. Shirley asks if it is persuasive. Strach says the court can consider it but he doesn't believe it should be.

Shirley says that you can't redraw state legislative maps that haven't been struck down as unconstitutional because of the prohibition on mid decade redistricting

Strach says that Common Cause got the legal decision completely wrong and isn't helpful factually because the court didn't tell the legislature exactly what was wrong with each district.

Strach says that Stephenson allows partisan advantage.

Shirley asks if the court finds that Common Cause is authoritative and was correctly decided, what does that do to their argument.

Strach says that even if that was the case these maps don't violate it because it has an intent component.

Shirley says that in criminal court you often have to rely on circumstantial evidence of intent - is there no circumstantial evidence here? Strach says there is no circumstantial evidence.

Strach says this is because all the algorithms used by experts are rigged. Shirley says that generally people intend the natural results of their actions.

Strach says that the maps could be "scrambled" if Republicans and Democrats spoke to different communities.

Strach says that's a problem the court can't address.

Another attorney takes up the argument now against the expert reports.

She's describing various election systems. She's explaining what redistricting is.

She says that Democratic voter clustering explains the maps.

Cites an affidavit by Sean Trende about NC political geography

The attorney is describing the affidavit. It's apparently a map of NC counties with election results from the last 3 presidentials.

I don't understand what the point of this is? She's just saying that most counties outside of the cities are Republican. Apparently the report compares North Carolina counties to the average county in the country. This seems asinine

The attorney says that the plaintiffs experts didn't respect political boundaries - counties, cities, VTDs

She says that Dr. Chen (one of plaintiffs experts) said that following political boundaries has a partisan effect. She says that this appears partisan but it's just natural.

Shirley asks if following political boundaries is a traditional redistricting criteria. The attorney says that yes that is considered a neutral, traditional criterion.

Now she's explaining the Stephenson ruling on whole counties.

Legislative defendants say that partisan advantage is created by political geography not the intent of the legislature.

Shirley says that were in this compressed schedule because the legislature refused to move back the primary or filing deadlines.

The attorney blames the Census delay. Shirley says the legislature chose not to delay the primaries even though that data was 6 months late.

Attorney says the legislature believed that they could conduct the best process ever regardless of the time crunch.

Legislative defendants says that experts didn’t respect political boundaries. Says that Chen lowered municipal boundaries as a priority (vs what she doesn't say)

Says that the Congressional map only splits two municipalities.

Legislative defendants say that Chen's report says that 9 Republican districts are expected in the maps. She says that 10 seats isn't a significant difference.

Judge Poovey asks whether or not extreme partisan gerrymandering is constitutional. Legislative defendants say that the public doesn’t understand what gerrymandering is - they use all those terms casually. But in a courtroom they have legal meaning.

She says that partisanship wasn't considered officially - but legislators are allowed to use their personal knowledge without restriction.

Legislative defendants say they don't have a definition of extreme partisan gerrymandering.

Poovey again asks, if you assume that a map is an extreme partisan gerrymander, is it constitutional. Legislative defendants say it's impossible to know what it is.

Now she's pointing out minor quibbles with the expert reports.

Going back to those dumb county maps.

She says that to draw the maps plaintiffs want they would have to consider political data

She says that Democrats just need to campaign in rural districts.

Judge Layton asks where in the filings are the LCVs "optimized maps"

Poovey asks the state what is the last possible date for candidate filing if we want to keep the March primaries. The state says that it's a complicated question but now he would say the 17th.

The state says that absentee ballots need to go out 50 days before the election.

Shirley points out that there are a lot of elections that won't be affected by anything that happens here - like municipals and judges.

LCV says that they believe they have evidence beyond a reasonable doubt if that is indeed the standard

Shirley says that Stephenson allows partisan advantage - but Common Cause says extreme partisan gerrymandering is not allowed. He says this feels like an "I know it when I see it" standard

LCV says that there is a standard set by Common Cause that can be used.

Shirley says our elections are indeed based on geography and Stephenson talked about the importance of counties.

Shirley asks how many municipal boundaries are split by Duchin's maps. LCV talks about the difference between the number of cities split and the total number of splits themselves. Also says that the stat pack lists 5 municipal splits.

LCV says that the maps they have are more compact, split fewer municipalities, and don't have extreme gerrymanders.

LCV says that geography doesn’t explain why Wake, Meck and Guilford are split three times.

These districts also have very low compactness measures.

They put up a map of the Northeast county clusters in the Senate map

Here's my meme so you can see the two possible options (they chose the one on the right obvi)

LCV says that this choice creates extra county traversals.

They put up a map of Wayne County that creates two Republican districts.

Shirley asks what LCV thinks it means when they said partisan advantage was allowed.

LCV says that that is limited by other provisions in the constitution.

Shirley again pushes for an answer on what is permissible under Stephenson. LCV says that what Common Cause found is the constraint.

Shirley says we're looking at statewide elections to determine the will of the voters. But the elections we're looking at are bound by districts.

Shirley asks whether more counties voting one way would be influential on this.

LCV says that their evidence shows that you can draw maps with fewer county traversals that are not this biased.

LCV says that legislative defendants have admitted that legislators can do anything they want outside of the hearing room and bring it in and reproduce it.

Poovey asks that if we have all this technology why don't we just draw the maps that way. 🙃

LCV says that don't have to know what the alternative is to place an injunction on these maps.

Now the Harper plaintiffs. They say that statewide elections results are used to evaluate maps because local elections can create biased effects bc voter demoralization.

Shirley asks whether a 9-5 Congressional map is extreme gerrymandering.

Harper says that it depends on the circumstances under which you get that result - the statewide vote percentages

Points to the Chen report - explaining a chart of the simulated maps compared to the enacted maps

She says that even if Democrats get 52% statewide Republicans win 10 seats. None of Chen's maps do that.

Harper says that 10 Republican seats are the result always. Shirley asks if this elections can't also be affected by topical issues.

Shirley is asking again if all partisan advantage is unconstitutional. Harper says that Stephenson might have been talking about other ways of incorporating partisan advantage - like drawing a district for a particular candidate to run in

Harper now addressing criticisms of the experts - says legislative defendants had access to Chen's code during Common Cause, and many of the methodologies have been published in peer reviewed academic journals - not a black box

Harper says that Chen gave a lower priority to municipalities and higher to VTDs and counties because that was the priority in the passed criteria

Harper says that the idea that the Congressional map preserves geography doesn't stand up because of the three way splits of the three largest counties which were not dictated by population

Says that all of Chen's maps are much more compact than those of the legislature.

Harper says that the remedial maps that were accepted by the courts show there is not a bar of all partisan considerations - plaintiffs objected to those maps

Says Stephenson did not use a beyond a reasonable doubt standard. Also partisan gerrymandering is more a matter of the percentage of partisan advantage in elections than particular seat counts

Legislative defendants say something about Duchin's optimized map not meeting Chen's standards? Not sure what that's about

Judges are conferring

Sorry! Forgot to say we will be back at 2pm

Judges came out and said they needed more time so we're just here in the courtroom waiting - they didn't give us a specific timeline

Judges are back

Shirley says this is not a decision they take lightly but it is clear that redistricting is under control of a political body.

Shirley says that people have chosen not to change the constitution in that respect (when did that happen????)

Shirley says plaintiffs have failed to prove likely success, PI is denied