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Fact Check: Does The U.S. Constitution Say Anything About Redistricting Being Fair?

Congressional districts
North Carolina General Assembly
The new congressional map doesn't necessarily have to be "fair."

North Carolina has new Congressional districts — and it was a process. When lawmakers went back to the drawing board last month, they had a lot to say. 

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Republican state Sen. Jerry Tillman chastised Democrats about what he called their lack of knowledge of the U.S. Constitution, which gives states the authority over redistricting. He said it doesn’t say anything about being fair.

"If it belongs to the prevailing party, do you think it should be anything other than partisan?" Tillman said. "It’s set up to be partisan.”

That statement got a lot of attention, especially since a court-ordered lawmakers to redraw the district lines without using partisan data.

Paul Specht of WRAL joins WFAE "Morning Edition" host Lisa Worf to assess Tillman's claim.

Lisa Worf: So does the U.S. Constitution say anything about the redistricting process being fair?

Paul Specht: That's a loaded question and there are many ways to look at fairness. It's likely that Sen. Tillman was referring to fairness in terms of will each party have equal odds of winning a congressional race? And no, it doesn't say anything about that. But it does apply other rules that aim to address fairness in terms of everyone's vote counting. The 14th and 15th Amendments in particular address minority votes and making sure that their influence is the same as everyone else's.

Worf: So if the U.S. Constitution hands over the redistricting authority to the states, does that mean the Constitution sets up redistricting to be partisan, as Tillman says?

Specht: Well, the U.S. Constitution is neutral. It's silent on how the districts are to be drawn at the congressional level because it leaves it to the states. Now, that leaves states the opportunity to draw them in sort of any manner they see fit that's constitutional.

Some states, like Arizona, have an independent redistricting commission. And other states try to eliminate partisanship from the process. They'll say, "Oh, you know, legislators are in control of the map-making process, but they're not allowed to consider how many people are registered Democrat, how many people are registered Republican."

Now, in North Carolina, the process is somewhat partisan. If you have one party that controls both the state Senate and the state House, they have a lot of power and a lot of influence over what those maps look like.

Worf: So is Tillman right then?

Specht: We gave him a "half true." And here's why: He said that the U.S. Constitution doesn't say anything about being fair. Well, literally, that's true. But it does address other aspects of fairness that aren't related to partisanship. He said it's set up to be partisan. Yes. In North Carolina, that's the case. But broadly speaking, it doesn't have to be that way.

Worf: And now you have a state court ordering lawmakers to redraw district lines without using partisan data. If that ruling is based on the state constitution, why is Tillman bringing up the U.S. Constitution?

Specht: That's a good question. You know, I don't know what provoked his comments on the Senate floor. It's likely there's a general discussion about fairness. The U.S. Supreme Court recently punted on a question of how much partisan gerrymandering is too much. But at the local level, there have been challenges to North Carolina's maps saying that they are a breach of the state Constitution.

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