Buncombe County Stands to Lose Under Proposed Changes

[LWV-Wake member Dianna Wynn is quoted in this article.]

October 11, 2017 - The Urban News - by Nelda Holder

At a time when the state of North Carolina is under the judicial microscope for unconstitutional racial gerrymandering in its legislative redistricting, a new set of maps that scramble the state’s established judicial districts has received a loudly voiced “Slow down!” from various quarters just prior to the reconvening of the General Assembly on October 4.

The new maps, released in a mid-summer tweet by Rep. Justin Burr of Albemarle (R-Montgomery/Stanly), reshape judicial lines across the state in ways that affect the entire court system. Judges and district attorneys may be running in different jurisdictions, or find themselves cut out of the electoral pie altogether. Court administrators and services stand to be shuffled, with accompanying public confusion. And here in Buncombe County, a longstanding and coordinated countywide system will break into two jurisdictions, as Judicial District 28 splits apart to become Districts 39A and 39B. This proposed redistricting is outlined in Burr’s House Bill 717.

The Buncombe County split would mean moving from the current countywide election of two Superior Court judges, to voting split between the two new districts, with one judge elected in each. The District Court judge elections would change from countywide elections for seven seats to district-restricted voting — three judgeships in one new district and four in the other.

What’s at risk here

“We have a really long history of doing positive things for the community as a bar,” District Court Judge Susan Dotson-Smith stressed in an interview regarding the proposal to split District 28. “And part of the reason why is we have avoided the divisiveness that comes from (such an) artificial split in the district. It disenfranchises the voters.”

Dotson-Smith, who spoke before the NC Courts Commission on September 29 as a member of the District Court Judges Association, believes there is a need to look at the state judicial system comprehensively. “It’s been a long time,” she acknowledged in a personal interview. But her testimony before the Courts Commission in Raleigh centered on the dangers of splitting a county of Buncombe’s size into more than one district.

Mentioning such county-focused accomplishments as the Mediation Center, specialty courts, and a focus on pro bono services, Dotson-Smith stressed, “We can do this as a united bar.” She believes, therefore, that instead of looking at what’s wrong, any move to redraw judicial districts should first look at what’s right. “And single county districts appear to be working,” she stressed. The priorities of the current District Court here, she emphasized, focus on “everybody in the community,” and not an artificial district.

Technically, the maps presented by Rep. Burr “double-bunk” Buncombe County’s two Superior Court resident judges, Dotson-Smith then pointed out. That means that an election under the residency requirements of the new maps would force one current judge out. And that, she stressed, eliminates experience on the job in favor of seating a potentially inexperienced new judge in the new district.

The redistricting proposal makes no change in the overall number of District Court judges (currently seven: four women and three men), but would put three judgeships in one of the new districts and four in the other. Because of the residency locations of the current judges, Dotson-Smith pointed out that the split directly jeopardizes diversity in the local court. “There is a risk, I think, of losing our one person of color (Chief Judge J. Calvin Hill),” she said about Buncombe County. She then pointed out that other judges at the Courts Commission hearing also stressed the pending loss of “years of experience” when judges are eliminated by district lines.

“The civility and ability to work together are also factors to consider. We work as a team right now. If we have to run against each other, (it’s) going to be hard,” Dobson-Smith lamented.

Advocating against regression

It’s been over 50 years since a comprehensive look at the state judiciary moved through the Legislature, but many people are questioning the new bill for precisely its lack of comprehensiveness. And many public advocates are asking for a slowdown.

Irving Joyner, professor of law at North Carolina Central University School of Law in Durham, strongly condemns the potential statewide effects on minority representation in the judiciary. “If passed,” he said in an emailed statement, “HB 717 will reconstitute (judicial districts) in a manner which will have a regressive impact upon the election of African Americans and women. Districts from which African Americans and women have previously been elected have been reconfigured in a manner which will pit them against each other in future elections.”

Joyner’s analysis is that the current bill “packs and stacks” the few districts with large African American populations, and was designed “to create many new districts with white Republican majorities.” This, he declared, “runs afoul of the Voting Rights Act” and will result in “the election of Republicans rather than … ensure the election of competent, unbiased and diverse judicial candidates.”

Joyner further asserted that the proposed legislation “totally ignored … the workload distribution which must be considered when creating and locating judicial districts.” That criterion, in the past, has been “effectively used to ensure that there is an appropriate balance between the needs of each courthouse and the judicial resources which are provided around the state.” In destroying that balance, Joyner said, the current bill “jeopardizes the opportunities for African Americans to be elected as judges, and destroys the faith that citizens have that justice will be available to them without political influence or favor.”

Make partisan data irrelevant

Dianna Wynn, representing the League of Women Voters, a nonpartisan organization, was only slightly less blunt in her statement before the House Judicial Redistricting Committee on September 27. Wynn called for the initiation of an in-depth study of judicial redistricting that would take into account “impartial data” such as population size and density, the nature and size of caseloads, and any applicable requirements of the Voting Rights Act.

“We believe that partisan data, such as previous election results or voters’ party affiliations, is irrelevant to any process aimed at maintaining an independent judiciary,” Wynn told the Commission. “Judicial maps should never be motivated by partisan politics, unnecessarily rushed, or largely drawn behind closed doors.”

In discussing her testimony with The Urban News, Wynn deemed the potential impact on black voters and the election of black judges as among the “unknowns” in analyzing the current proposal. “The process has been rushed,” she said, and “has not been transparent,” largely ignoring the input of the public and the legal community.

Buncombe County Sen. Terry Van Duyn (D-Buncombe) was a less sanguine in her opinion. “I’m really outraged by what is going on,” she said. “The current effort to redistrict our courts has one purpose: elect more Republicans, particularly in urban areas.” She likened the judicial move to the 2012 redistricting of Buncombe County’s legislative seats. “Our judges currently reside all over the county, geographically, but the split will create a Republican-leaning district. Also, Buncombe County judges, in both district and superior court, are double-bunked, meaning we will lose at least two experienced judges. Losing experienced judges, so that you can replace them with more partisan judges, is NOT going to help the state’s judicial system,” Van Duyn asserted by email.

A “transparent process” and independent redistricting committee would provide the best outcome, she said: “One where interested parties have the opportunity to examine the criteria used to draw the districts, know what the impact will be in existing judges, and have sufficient time and opportunity to weigh in, both before and after maps are drawn. That is NOT what happened here.”

Van Duyn provided a copy of the September 27 letter concerning the redistricting written by Annika Brock, president of the 28th Judicial Bar. In writing to Rep. Burr and three others involved in the redistricting, she noted that her organization is considering a resolution requesting that the legislature “be respectful of historical geographical boundaries in making decisions and to not split up counties in the creation of districts.” She requested that the House hold over the vote on the plan until the 2018 session, in order to give stakeholders time to “review and provide input on these important decisions.”

Are we drawing too many lines

Technically, Buncombe County has been fairly besieged by “redistricting” over the past several years. Depending on where you live, a split between the 10th and the 11th congressional districts arrived in 2011, in the statewide redistricting that was subsequently overturned for racial gerrymandering. (New maps came out in 2012, and were tweaked again last year—still in pursuit of withstanding the racial gerrymander test. The replacement districts have still not been approved by the courts.) Also in 2011, Buncombe County was divided into three electoral districts for six county commission seats, with a countywide vote for chair. And this year, the General Assembly divided Asheville’s heretofore at-large city council representation (excluding the mayor) into six single-member districts (still to be finalized).

Burr’s bill may or may not receive House approval in the two- or three-day legislative session coming up. The Senate’s disposition regarding the judicial redistricting has remained unclear, given Senate focus currently on a judicial appointment system to possibly replace judicial elections.

Editor’s Note: Comment was requested from Rep. Justin Burr for this article, but there had been no response by press time.