Sen. Berger’s Prepared Remarks on the 2017 Senate Redistricting Plan

I hear Democrats complain that they’re not competitive in state Senate elections under the proposed maps because Republicans gerrymander the districts.

Liberals in the media and academia have picked up on this theme and run with it. But in the publicly understood sense of the word, it is not true that this map is a gerrymander.

Back in 2001, my first year serving in the Senate, I was one of only 15 Republicans elected to serve in this body, in a year North Carolina voted for George Bush for president by 13 points over Al Gore – 56 percent to 43 percent.

The Democrats promptly embarked on a redistricting scheme for the state Senate that was by any measure a severe gerrymander intended to preserve that 35-15 partisan advantage. That Democratic map – known as N.C. Senate Plan 1C – divided 51 counties. Smaller counties like Sampson and Iredell were chopped up between four districts. One western N.C. district stretched and wound across pieces of nine counties running from the Georgia border up through Asheville into McDowell County.


This fracturing and severe gerrymandering of counties was a relatively recent occurrence. 

In fact, prior to 1982 no county had ever been divided to form a state Senate district in North Carolina. The constitutional requirement that Senate districts be made up of whole counties dates back in different forms to our state’s original 1776 constitution, which allotted one senator to every whole county.


It was not until a 1981 U.S. Department of Justice decision that the North Carolina constitutional provision requiring counties be kept whole when drawing legislative districts violated the Voting Rights Act that our state began to see the sort of grossly gerrymandered districts like you see in the Democrats’ 2001 N.C. Senate Plan 1C in front of you.

These sorts of grotesque districts would probably still be the norm in North Carolina, and frankly, the Democratic Party would probably still control the state Senate if not for a man from Beaufort County named Ashley Stephenson, who passed away in 2009.  

In 2001, Ashley Stephenson filed a lawsuit asking the state courts to enforce the whole county provision of the state constitution. He argued that the state did not have a binary choice between the whole county provision of the North Carolina Constitution and the Voting Rights Act – that in fact the state constitution and federal law could be harmonized.

In the landmark 2002 Stephenson decision, the state Supreme Court agreed with him and laid out a specific method to keep counties whole while complying with federal law. The system for drawing legislative districts laid out in the Stephenson decisions – requiring districts to comply with the Voting Rights Act, have roughly equal population, elect a single senator instead of multiple senators, and, most importantly, creating a process for grouping and keeping counties whole – are the strongest anti-gerrymandering provisions for a legislature in the entire country. And the results of the decision are immediately evident:



  • The 2003 state Senate map, adopted by the Democrats to comply with the Stephenson decision, divided 12 counties.






When map drawers divide between 10 and 20 counties, they simply cannot create the sort of redistricting mischief that they can when they divide 50 plus counties. And they are forced to make decisions based on traditional districting principles over political considerations – for example, I ended up double-bunked and had a primary against former Senate Republican Leader Bob Shaw in the 2002 map.

I’ve heard people argue that this proposed Senate map is a political gerrymander – it is not. But the argument goes something like: Republicans and Democrats should both get about the same number of seats in the state Senate, because Pat McCrory and Roy Cooper tied at 49 percent of the vote in the governor’s race.

This ignores a couple of things: 1) we aren’t a European country with proportional representation. If we were, the Libertarian, Lon Cecil, who got 2 percent of the vote for governor, would be breaking all ties between McCrory and Cooper, and 2) while the governor’s race was a tie, in 2016 Republican candidates for state Senate got almost 500,000 more votes than Democratic candidates.

But something else has been happening that folks arguing against this map haven’t spoken much about.  A North Carolina Democrat – as a distinct political personage and candidate type from a national Democrat – disappeared. 

Think about this.

Back in the 1990s and early 2000s, Democrats won, on average, between 50 and 55 counties in competitive statewide races in North Carolina:

1992: 56.5
1996: 54.5
2000: 55.8

Since 2010, Democrats have averaged between 30 and 35 county wins in competitive statewide races:

2012: 35.9
2014: 32.0
2016: 31.2

Consider the number of counties Democrats won in governor’s races since 1992:

Jim Hunt 1992: 69
Jim Hunt 1996: 73
Mike Easley 2000: 65
Mike Easley 2004: 70
Bev Perdue 2008: 60
Walter Dalton: 2012: 23
Roy Cooper 2016: 28

So just to compare: Jim Hunt LOST just 27 counties in 1996. Roy Cooper WON just 28 counties in 2016.

And Roy Cooper won 63 counties in his competitive 2000 Attorney General’s race.



But Roy Cooper won only 28 counties in his competitive 2016 Governor’s race.



That’s not gerrymandering.

It’s happened all across the state. Let’s just take a few of the more glaring county examples:

In the west:

  • Madison County: Historically, Democrats won Madison County in a slew of statewide races: 2000 Governor, Lt. Governor, Attorney General, Superintendent, Labor, and Auditor races, 2002 US Senate, 2004 Superintendent, Labor Secretary, Agriculture, Auditor, Lt. Governor, Governor, 2008 Treasurer, Superintendent, Labor, Agriculture, Auditor, Insurance, Governor and U.S. Senate. In 2016, Democrats didn’t carry Madison in a single contest. President Trump won 60 percent, Sen. Burr won 57 percent to 39 percent, and statewide Republican candidates averaged at least 55 percent.
  • Alleghany County: Democrats won Alleghany in every competitive statewide race except the race for president in 2000, and Mike Easley won the county with nearly 58 percent in 2004. In 2016, Hillary Clinton won 24 percent, Deborah Ross won 26 percent, Roy Cooper won 31 percent and Josh Stein won 34 percent.
  • Rutherford County: Republicans averaged about 70 percent in Rutherford County in 2016. President Trump won 72 percent, Lt. Governor Forest 71 percent, Buck Newton 70 percent. Roy Cooper outperformed most of the other Democrats on the ticket by winning just 32 percent of the vote. In 2000, Roy Cooper won 45% of the vote in his close first election for Attorney General. Mike Easley won the county in 2004. Jim Hunt won it twice, in 1992 and 1996.

In the Piedmont:

  • Person County: Democrats won Person County in the overwhelming majority of statewide races in 2000, 2004 and 2008. Roy Cooper, Bev Perdue and Mike Easley each won with 57 percent in 2000. In 2016, Elaine Marshall was the only Democrat who carried the county. Clinton and Ross won just 40 percent. Cooper won 43 percent.
  • In my home county of Rockingham: in the 1990s and 2000s, Republicans rarely won Rockingham County. It went for Jim Hunt twice, Mike Easley twice, Bev Perdue twice and Roy Cooper in his 2000 race for Attorney General. In 2016 Democrats averaged 38 percent in Rockingham County. In the two most prominent races they won: Roy Cooper and Josh Stein won 39 percent each.

And most dramatically in the east:

  • Nash County: Nash was a competitive county in 2016 – Sen. Burr won with 49 percent, President Trump with 49 percent, and Lt. Governor Forest with 50 percent, while Attorney General Josh Stein won the county with 51 percent. Mike Easley and Bev Perdue each won 61 percent in Nash in 2004. Even in his home county, Roy Cooper cleaned up with 69 percent of the vote in the 2000 Attorney General’s race, but won just 52 percent in 2016.
  • Columbus County: In 2016, Columbus County went 60 percent for President Trump, 59 percent for Sen. Burr and Pat McCrory. It went 58 percent for Lt. Governor Forest. 55 percent for Superintendent Johnson and 56 percent for Treasurer Folwell. In 2008, Bev Perdue won 65 percent, Walter Dalton 63 percent. In 2004, Democrats averaged over 63 percent in competitive statewide races in Columbus. In 2000, they averaged 68 percent. Many cleared 70 percent. In Roy Cooper’s 2000 race for Attorney General, he won 67 percent in Columbus County. In the 2016 race for governor, he won less than 40 percent.
  • Sampson County: Democrats carried Sampson County in seven of the eight most competitive statewide races in 2000. They won the county in six of the eight most competitive in 2004. Since 2008, only one Democrat has won the county. Roy Cooper lost by 17 points (58 percent to 41 percent) in 2016.
  • Robeson County: Democrats averaged 73 percent in Robeson County in 2000, 68 percent in 2004 and 67 percent in 2008. In 2016, they lost the first three races at the top the ticket.  The decline in Democratic performance in Robeson County has been so sudden and so dramatic it became the subject of a national case study.
  • Tyrrell County: In 2000 Democrats won every competitive statewide race in Tyrrell County, and their candidates averaged 71 percent. Roy Cooper won 74 percent, Mike Easley won 73 percent, and Bev Perdue got 74 percent. In 2004, Democrats won every competitive statewide race except the race for President, averaging 62 percent. In the 2016 cycle, Democrats averaged 48 percent and Cooper performed 33 points worse (41 percent) than he did in 2001.

Democrats are only competing in 20 to 30 counties across the state. That might be a viable strategy for squeaking out a win in the occasional statewide race, but you can’t build a legislative majority in a state with 100 counties when you only compete in a quarter of them. 

Do we really think all of these county shifts – these sea changes, in only a decade’s time – are a result of gerrymandering?

Of course not. Gerrymandering didn’t do that. North Carolina Democrats did that.

It is why Republicans were able to take the majority in the state Senate in 2010 on a map drawn by Democrats.

Granted, this trend isn’t exclusive to North Carolina. Nationally, Democrats have lost over 900 legislative seats since 2010, not to mention the U.S. House of Representatives, U.S. Senate and the White House.

A News & Observer headline two days after the 2010 midterms wiped Democrats out of the U.S. House read: “Obama voices regrets but signals no change of course.”

And the losses kept coming – in 2012, 2014, and 2016.

That’s not a gerrymandering problem.

The nonpartisan Cook Political Report said maybe about 17 percent of the Democratic Party’s woes nationally are a result of gerrymandering.

Something clearly happened, while Democrats were blaming gerrymandering for keeping them on the back row.

When I first ran for the state Senate, many of the Democrats running shared the cultural values of North Carolina’s moderate to conservative voters. They were pro-education but also pro-business, pro-gun and pro-life candidates. 

But today North Carolina Democrats, just like the national Democrats, align with the powerful special interests like big national labor unions, far-left environmentalists and the abortion lobby.

It used to be that a North Carolina Democrat wouldn’t be caught dead with a national Democratic presidential candidate like Michael Dukakis, Walter Mondale or John Kerry. Nowadays, they rush out to get endorsements from Barack Obama and Hillary Clinton.

It used to be North Carolina Democrats campaigned all over rural North Carolina. In 2016, they were nowhere to be seen outside of the big cities.

It’s easy to understand why “gerrymandering” has been the boogeyman since Democrats were swept out of power in 2010. It’s easier to blame the maps, blame a process – blame anything, really – than it is to take responsibility for losing touch with the politics of voters in 75 of North Carolina’s 100 counties.

But here’s the hard truth: Democrats could be competitive in legislative elections all over the state, if they tried to compete in all 100 counties instead of only 30 – in fact, there are more registered Democratic voters than Republican voters in 27 of the proposed districts. But if you’re going to be competitive in legislative elections across the state, you’re going to have to bring back the North Carolina Democrat as a distinct political type, separate from the national Democrat. 

And the North Carolina Constitution requires legislative districts to be constructed out of whole counties. So unless you think the county lines in our state have been gerrymandered, it’s pretty clear this is not a political gerrymander. And if the North Carolina Democratic Party’s struggles do elect Republican Senators under this map, it isn’t because of the way the lines are drawn, but the platform that party’s candidates are running on.

But we are not here today because of a political gerrymandering claim.

We are here today to adopt a new legislative redistricting plan because the U.S. Supreme Court struck down the 2011 state Senate map, ruling that nine of the districts included in the map were racial gerrymanders. I think it is very important that we acknowledge this – the District Court ruled and the Supreme Court affirmed that the 2011 map was a racial gerrymander.

In 2011, the legislature made a decision, based on the U.S. Supreme Court decision in the Strickland case, to draw the minority districts required by the Voting Rights Act with African-American voting age populations of at least 50 percent. The trial court ruled that interpretation of the Strickland decision was an “error of law”.  And while the court acknowledged that:

“In reaching this conclusion, we make no finding that the General Assembly acted in bad faith or with discriminatory intent in drawing the challenged districts, which were precleared by the Justice Department pursuant to Section 5 of the VRA,”

The court’s ruling must be respected and the “error of law” that resulted in the racial gerrymanders must be corrected. 

The U.S. Supreme Court has set several new precedents since this body last adopted legislative district maps. Most consequentially, the Supreme Court rendered Section 5 of the Voting Rights Act inoperative in Shelby County v. Holder.

The Shelby County decision is important to understanding how we are seeking to comply with the court’s order. To simplify, prior to Shelby County, North Carolina’s redistricting plans were subject to Section 5 preclearance by the United States Justice Department. The burden fell on the state to prove the proposed plans did not unfairly limit the opportunity of minority groups to elect candidates of their choice.

Today, post Shelby County, North Carolina’s redistricting plans are not subject to Justice Department preclearance. And the burden of proving that a plan limits a minority group’s opportunity to elect a candidate of their choice would rest with a plaintiff in a court challenge.

Sen. Blue spoke Friday in detail about the Gingles factors that would allow the legislature to consider race in drawing a district:

1)                That a geographically compact minority community exists for which a majority-minority district can be drawn.

2)                That the minority community votes cohesively.

3)                That the white majority typically votes together in sufficient numbers to block the minority community from electing a candidate of their choice.

I won’t expand on Sen. Blue’s comments on the first two Gingles criteria, but want to elaborate on the third criterion. In 2011, the legislature commissioned two expert studies on racially polarized voting in North Carolina to support the decision to draw districts with African-American voting age populations of 50 percent. To my knowledge these were the most complete and exhaustive studies ever entered into the record during a redistricting process.

In the Covington decision striking down the 2011 legislative maps, the court cited those legislative decisions as critical to determining the plan was a racial gerrymander. The court determined the expert reports did not sufficiently prove racially polarized voting to prove the third Gingles factor was present and justify drawing 50 percent minority districts:   

“Contrary to Defendants’ contentions, the Block and Brunell reports do not establish a strong basis in evidence for Gingles’ third factor in any potential district.”

And in light of the 2014 Alabama Legislative Black Caucus v Alabama ruling, the court strongly objected to the legislature’s decision to adopt a 50 percent target to draw true minority majority districts:

“…in light of Alabama, we are mindful that a legislature’s “policy of prioritizing mechanical racial targets above all other districting criteria (save one-person, one-vote)” provides particularly strong evidence of racial predominance.”

We have carefully considered the court’s order in Covington. Given the court’s rejection of the 2011 expert reports we do not believe we can develop a strong enough basis in evidence that the third Gingles factor is present to justify drawing districts on the basis of race. Nor, in spite of repeated requests by the redistricting committees, have the public, plaintiffs in the Covington litigation or members of this body presented evidence that the proposed map should be changed because the third Gingles factor is present and unaddressed.

So I strongly believe we have complied with the court’s admonishment that:

“… if during redistricting the General Assembly had followed traditional districting criteria and, in doing so, drawn districts that incidentally contained majority-black populations, race would not have predominated in drawing those districts.”

With the information available to them, Sen. Hise and the Redistricting Committee adopted nine criteria to use in drawing this proposed map. Some of the map-drawing principles are inviolable and must be followed, like equal population, contiguity, the N.C. constitutional requirements on county groupings and, because we cannot prove the third Gingles criterion, not using racial data. Other criteria like keeping precincts whole, compactness, election data, incumbency protection and municipal boundaries are secondary and occasionally internally contradictory considerations. They must be harmonized with each other while complying with the inviolable criteria. 

I believe that this redistricting plan put forward by Sen. Hise’s committee successfully harmonized the criteria adopted.

This map is not a racial gerrymander and fully complies with both the court order and traditional redistricting principles. 

I have also reviewed the data Sen. McKissick requested and has placed on the member dashboard. In the nine districts the court ruled were racial gerrymanders, only the Guilford County district 28 – as the court predicted could incidentally occur when using traditional districting principles, in this case following Greensboro’s municipal boundary – continues to have a black voting age population over 50 percent, and it has fallen from 56.5 percent to 50.5 percent. The other eight previously unconstitutional districts now have black voting age populations ranging from 32.9 percent to 48.5 percent. While the 2011 map had no districts with black voting age populations between 26.5 percent and 43 percent, the new map has five new districts that fall in that range, including one new district with a black voting age population over 40 percent and two new districts with over 30 percent.

This is important because the expert reportswhich you can see on your dashboard – submitted by Allan Lichtman on behalf of the Democrats and plaintiffs in the Covington and Harris cases define all those districts as having the “ability to elect” a candidate who is the preferred choice of a cohesively voting minority community.

So while race was not used to draw this plan, I believe it fully remedies the racial gerrymander in the previous map while avoiding any new potential claims of vote dilution under Section 2 of the Voting Rights Act.

In closing, I’ll say again: this map is not a racial gerrymander. This map is not a political gerrymander, either. It complies with state and federal law.  It adheres to traditional districting principles.  It remedies defects the court found in the previous map. It splits fewer counties. It divides far fewer precincts and fewer municipalities. For those reasons, I ask for your support.