North Carolina GOP Hides Redistricting Process From State Public Records Law

In one of the most gerrymandered states in the country, GOP leaders are taking new measures to shield redistricting records from public view.

The changes to public records laws first came to light when North Carolina’s Republican-controlled General Assembly released its $30 billion budget on Wednesday, following months of negotiations. The bill includes raises for state employees, cuts to income taxes, and an expanded school voucher program — as well as sneaky language that will deal a major blow to government transparency in the state.

Buried deep in the 625-page budget is a provision overturning a state law that made legislators’ redistricting communications and drafting documents part of the public record once the new electoral maps became law.

The repeal of that provision will go into effect in 10 days, dropping a veil of secrecy over a contentious issue that has roiled North Carolina state politics for decades.

“Electoral maps are the core of representative democracy. It’s critical to understand from the public’s perspective how rules related to voting and elections come into being,” said Brooks Fuller, director of the North Carolina Open Government Coalition. “This was a really important carve-out, and it’s very clear from the way that it’s written that the General Assembly thought this was important to North Carolinians. Apparently that’s changed.”

While the state’s public records act grants broad exemptions for messages sent between lawmakers and their staff during the legislative drafting process, one statute included a special carve-out for redistricting. The law noted that “present and former legislative employees may be required to disclose information otherwise protected” by legislative confidentiality laws if that information pertained to redistricting plans that had been enacted.

After both chambers of the Legislature swiftly voted to pass the budget on Thursday, Democratic Gov. Roy Cooper announced Friday morning that he would let it go into effect without his signature, citing the bill’s failure to expand Medicaid. While Cooper had initially said he was “strongly considering” vetoing the budget, Republicans hold an overriding, veto-proof majority in both chambers of the Legislature. (The House gained its Republican supermajority after Rep. Tricia Cotham controversially changed her party affiliation in April.)

Additional sections of the budget chip away at the state’s public records act more broadly, stipulating that legislators have sole discretion over whether to “reveal any document, supporting document, drafting request, or information request made or received by that legislator while a legislator.”

North Carolina lawmakers were already designated custodians of their own records but had to claim a specific exemption in order to withhold requested documents. The new language tightens the legislative privileges that were already in place, granting lawmakers the authority to decide which of their records they want to make public and which they want to destroy or dispose of.

“This is profoundly contrary to the state’s commitment to open and transparent government,” said Sarah Ludington, director of the First Amendment Clinic at the Duke University School of Law. “There is literally nothing to be gained by increasing the secrecy of government actions.” Supreme Court Case

The move to shield legislative records from the public, particularly those related to redistricting, is especially troubling given the long and heated legal battle over gerrymandering in the state.

On June 27, the Supreme Court ruled 6-3 against North Carolina state legislators in a key redistricting case, Moore v. Harper. The suit made its way to the nation’s highest court after Republican lawmakers appealed the North Carolina Supreme Court’s 2022 decision to strike down a gerrymandered congressional map, ruling that it violated the state’s constitution.

The U.S. Supreme Court case was closely watched by legal scholars, as the petitioners invoked an extreme reading of the controversial “independent state legislature theory” to argue their side.

North Carolina Republicans contended that the United States Constitution grants state legislatures unchecked authority over the administration and regulation of federal elections — even if it entails partisan gerrymandering that flies in the face of judicial rulings. The same theory was also pushed by President Donald Trump’s allies in their attempts to overturn the results of the 2020 election. As House speaker, Rep. Tim Moore led the Republicans’ Supreme Court appeal — a case that bears his name — and now serves as a central figure in the state budget negotiations.

While the Supreme Court decision marked a cautious victory for the democratic process, the North Carolina high court had already reversed its own ruling on the gerrymandering case in April. “Courts are not intended to meddle in policy matters,” Chief Justice Paul Newby wrote in the majority decision.

The ruling cleared the way for the Republican-dominated Legislature to draw electoral districts that would heavily favor the party. It also spoke to the see-sawing nature of North Carolina state politics: The state Supreme Court struck down the gerrymander in 2022, when it held a Democratic majority. Following the 2022 midterm elections, Republicans flipped the court and proceeded to reverse the decision.

“Our state is so incredibly purple,” said Ludington. “If our state was districted so that our state representatives actually mirrored the voter registrations in the state, we would have razor-thin majorities in both House and Senate at the state level.”

Ludington emphasized that the public records changes in the budget are a “transparency and accountability issue” rather than a partisan one. “Whichever party’s in charge, the only way to hold them accountable is to have robust rights of access to documents that show their deliberations,” she said.

North Carolina’s Democratic Party has also participated in legally dubious gerrymandering over the course of the state’s history. In a major 1993 case, the Supreme Court found that a “bizarre” Democratic-drawn congressional map violated the Constitution as an act of racial gerrymandering because it attempted to combine as many Black voters as possible into a single district across 160 miles.

Democrats ruled the state Legislature for more than 100 years until 2010, when the Republican Party took control and redrew the electoral maps to give their party an edge. Since then, redistricting has sparked a spate of lawsuits from groups like the NAACP and Common Cause.

The public records law was broad enough to allow lawyers to get discovery documents for cases like the recent constitutional litigation, but the new changes will restrict everyone’s access to the records, including reporters investigating government wrongdoing.

“Formerly we could use the public records act to compel disclosure of critical public information,” said Fuller, the North Carolina Open Government Coalition director. “Now, we’re totally at the whims of our benevolent legislators, if they choose to be. We don’t have a lot under these new laws that’s going to compel the sharing of information.”