Special Master Imposed by Court on NC Redistricting

Why should NC citizens bother voting when a federal court can rule like a monarch over it?

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Nathan Persily - Special Master
Prof. Nathan Persily

Last week a three judge panel ordered that they would acquiesce to plaintiff requests in the ongoing Covington v. North Carolina case for a Special Master to be assigned to oversee the state’s legislative redistricting process.

The order was delivered by U.S. Middle District Court Judge Catherine Eagles.

The North Carolina Democratic Party was quick to claim a victory on Twitter, applauding the court’s move to override the will of voters in the state and state statutes regarding redistricting.

The ruling relies on the court’s earlier decision on August 11 that North Carolina maps relied too heavily on race when drawing district lines and were therefore unconstitutional.

The districts in question are 21 and 28 in the Senate and 21, 36, 37, 40, 41, 57, and 105 in the House. The court’s order states these specific districts, “fail to remedy the identified constitutional violation or are otherwise legally unacceptable.”

In the ruling handed down on October 26, the three judge panel presupposed that the complaint surrounding these districts would be successful.

The order states that, “upon consideration of the technical nature of determining an appropriate remedy when district lines are at issue, the Court finds exceptional
circumstances and intends to appoint a Special Master pursuant to Federal Rule of Civil Procedure 53.”

Special Master Backstory

In the August ruling, the Court ordered new maps be drawn on or by September 1st, 2017. The General Assembly complied and produced new maps by August 31, 2017.

[ Read: NC Redistricting Cmte Chosen, NDRC Poised To Attack ]

Various public comment hearings were held for the proposed new maps which turned into quite a show, with left leaning groups like Progress NC and Democracy NC orchestrating their supporters to protest and testify at those hearings.

By September 15, 2017, specific objections were filed with the court to the new plans that included previously mentioned 3 Senate districts and 9 House districts.

The Sept. 15 complaint was responded to by lawyers representing the legislature and the same court held a hearing on the objections on October 12, 2017.  During those proceedings, the Special Master solution was put forth. Neither side could agree on a list of qualified persons for the role so the court chose for them.

The court has chosen Nathan Persily, a Law Professor at Standford University in California.
Persily’s resume is extremely lengthy, including nearly 5 whole pages of ‘speeches and writings’, and was attached to the October 26th order.

Persily will be paid $500 a day to be the Special Master. It is unclear who or what entity will be responsible for the payments.

Reaction to Special Master Order

The order only gave the defendants 2 days to reject Persily as a Special Master. The extremely short time frame was met by strong criticism from legislators in charge of the redistricting process.

“It is an outrageous and extraordinary violation of the principles of federalism and our state’s sovereignty,” Rep. David Lewis and Sen. Ralph Hise said in a joint press release.

“Being provided only two days to respond to such a strange order that could seize a fundamental right from the people of North Carolina and hand it to a single person on the other side of the country is an outrageous and extraordinary violation of the principles of federalism and our state’s sovereignty,” Rep. David Lewis, R-Harnett, and Sen. Ralph Hise, R-Mitchell, said in the joint statement.

In a scathing article at Conservative Review, Daniel Horowitz blasted the courts over the special master order and for erasing the state’s sovereignty.

The government of North Carolina has been sacked. It has been erased as a state and is now under the control of the Fourth Circuit Court of Appeals.

Horowitz went on, hammering the court for engaging in “legislative gerrymandering” and took aim directly at the court forcing appointment of Persily:

Because the litigants couldn’t agree on the “master,” the super-executive court decided to pick Professor Nathaniel Persily, a man with a long resume who once worked for the liberal Brennan Center for Justice, among many other notches on his resume.

Is this how the Founders envisioned the judiciary? That one political party could take another party to court and subject their map to the final say of a federal judge of their party who appoints an unelected member of that same persuasion to babysit the map?

While legislative gerrymandering can be insidious, it is not nearly as tyrannical as judicial gerrymandering, which is unconstitutional and against which there is no remedy.

Horowitz also called out federal representatives for North Carolina for their inaction, writing that, “The federal representatives of North Carolina have an obligation to protect their state from the clutches of the Fourth Circuit the same way some in Arizona are attempting to do with the Ninth.”

About the Special Master

Persily has been a Special Master in multiple other states, including Connecticut,Georgia, Maryland and New York. He was a “Senior Research Director” appointed by Barack Obama to his Presidential Commission on Election Administration.

Buried inside Persily’s resume are two amicus briefs he filed on behalf of the openly liberal biased Brennan Center Center for Justice.

  • Brief Amicus Curiae of Brennan Center for Justice at NYU School of Law in Support of
    Appellees, Utah v. Evans, 536 U.S. 452 (2002) (No. 01-714).
  • Brief Amicus Curiae of Brennan Center for Justice at NYU School of Law in Support of
    Respondents, Bush v. Gore, 531 U.S. 98 (2000) (No. 00-949).

The Brennan Center for Justice has made a name for itself following the mission of their namesake, the late Supreme Court Justice William J. Brennan. The Brennan center has made a cottage industry of advocating for judicial activism by ‘legislating from the Bench’.

The Brennan Center has been a regular recipient of millions of dollars in the form of grants from George Soros’ Tides Foundation and Open Society Institute.

Between 1999 and 2003, Soros’ Open Society Foundation gave the Brennan Center nearly $3.3 million dollars. This is the same time frame NC’s new Special Master, Nathan Persily, was filing amicus briefs on their behalf.

Outside the court room and redistricting arenas, at least going by his Twitter feed, Persily appears to be slightly fixated on the concept of “Fake News.”

According to Carolina Journal, Persily has previously commented on another North Carolina redistrictingcase, Harris v McCrory:

Persily commented about the Cooper v. Harris lawsuit, challenging North Carolina’s congressional districts, in May for the Stanford Law School website.

At the time, he questioned the significance of the North Carolina case compared with other redistricting challenges under way around the country. “It [Cooper] may affect a few districts here and there, but it should not have widespread consequences for either partisan or racial gerrymanders,” Persily said.

You can read his remarks here.

View Persily’s Affidavit to be named Special Master in North Carolina.

Read the Court order for a Special Master:

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