The recently approved budget in North Carolina, which went into effect last month, harbors significant changes to the state’s open records laws within its extensive 600 pages. Finalized during late-night deliberations, the recent budget erodes transparency regulations related to voting and redistricting. Further, it confers broad investigatory authority to the legislative investigative body, referred to by Democrats as a “secret police force,” granting the power to seize “any documents or system of record” from any entities or individuals that receive state funding.
North Carolina is also known as one of the most gerrymandered states in the nation and advocates and concerned citizens have long sought access to public records to challenge redistricting maps not just in North Carolina, but in other states such as Michigan. Previously, North Carolina state law stipulated that once new congressional maps were approved, the majority of the drafting communications that guided the creation of those maps would become public records accessible upon request. However, the recently approved state budget eliminates this provision.
Under the new North Carolina budget, “lawmakers responding to public records requests will have no obligation to share any drafts or materials that guided their redistricting decisions.” This is a monumental change for the worse. The exact issues for which public records provide transparency, including how district boundaries are drawn and whether lawmakers were redistricting with discriminatory intent, were being challenged in court as recently as last year. Without the public’s ability to access the communications, challenging gerrymandered maps would be nearly impossible.
Challenges to North Carolina’s congressional maps have remained consistent over the past two decades, and litigation to gain access to map drafting communications as key evidence has been a hallmark of this fight, including in the 2019 redistricting case of Common Cause v. Lewis, where emails between legislators and consultants were used as evidence, and the 2022 redistricting case of Harper v. Hall (which eventually became the Supreme Court’s blockbuster decision in Moore v. Harper rejecting the independent state legislature theory). In Harper it was revealed that one of North Carolina’s legislators who spearheaded the redistricting process used secret “concept” maps to help draft the state’s redistricting plan. Voting rights advocates sought to obtain the materials used during the map-making process, arguing that access to “these public records go to the heart of this matter…”, only to be told they were apparently destroyed, despite state lawmakers’ obligation to preserve them and the trial courts order requiring them to “fully comply” with the documents request.
While the previous public records law allowed attorneys to obtain discovery documents for cases like the recent constitutional litigation, the new provisions will curtail access to these records for everyone, including journalists investigating government misconduct.
When redistricting is conducted in secret or without adequate oversight, it becomes increasingly difficult to address discrepancies or racial gerrymandering. Given North Carolina’s long history of voter suppression, it’s possible that the legislature’s intention when they passed the state’s new budget and limited access to these records was to hinder transparency. With new restrictive laws being passed by an increasingly conservative legislature, NC continues to undermine the votes and voices of marginalized communities, particularly Black people, people of color, LGBTQ+ individuals, and those with limited means who have been systemically blocked from the ballot. Gerrymandering is yet another manifestation of this long history of marginalization, by manipulating district boundaries to diminish the voting influence of certain segments of the population, frequently communities of color. In 2017, the Supreme Court ruled that two of the state’s congressional districts were unconstitutionally gerrymandered based on race, finding it was the predominant factor in drawing the districts. Without public disclosure requirements, which offer valuable insights into the decision-making process during redistricting, North Carolina voters will be unable to access evidence that could illuminate irregularities that indicate partisan and race-based gerrymandering.
Oversight, transparency and accountability are fundamental pillars of a healthy and functioning democracy. Specifically, transparency in our redistricting process fosters trust in the integrity of elections and creates an opportunity to identify any attempts to disenfranchise voters. By eliminating the statutory requirement for public disclosure, state lawmakers could withhold the information needed to review impermissible congressional maps.
North Carolina’s $30 billion state budget not only jeopardizes public access to these records, making it challenging to reveal corruption and ensure accountability, but also undermines the voting rights of its citizens. Because of this, citizens will lack the necessary tools to fully comprehend the depth of these ongoing attacks on our democracy and the insights needed to challenge them in court.