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- In North Carolina's redistricting case, Sens. Daniel and Newton invoked "legislative privilege," a legal tool available to legislators who don't want to speak about confidential aspects of the lawmaking process.
- Their request for privacy was granted by the court, meaning the senators were exempt from the deposition process and weren't called to the stand during the Superior Court trial.
- It's misleading for the N.C. House Dems Twitter account to suggest the senators' silence is indicative of misbehavior. Republicans in the state House used secret maps during the redistricting process, but there's no proof that state Senators did the same.
Some North Carolina Democrats say gerrymandering efforts were "worse" in the state Senate than in the state House, in part because two Republican senators didn’t testify during a recent redistricting trial.
North Carolina legislators redraw the state voting maps every decade after new census data come out. The political party in power typically draws the districts to favor themselves, often prompting lawsuits from critics. That happened again last year.
Voting rights groups sued leaders in the Republican-led state House and state Senate, arguing their maps are unconstitutional partisan gerrymanders. A panel of Superior Court judges ruled in favor of the Republicans. So the plaintiffs then appealed to the state Supreme Court.
On Jan. 31, ahead of oral arguments before the high court, the North Carolina House Democrats’ Twitter account tweeted:
House Republicans "admitted to secret maps and destruction of evidence," but Sens. Paul Newton and Warren Daniel "refused to even give testimony. So the question is—what the hell was going on in the [state Senate] that was so much worse than what was happening in the House?"
There’s a lot to unpack in this tweet, which takes some facts from the redistricting case and frames them in a way that could lead some to think the lawmakers engaged in wrongdoing.
First, a portion of the House Democrats’ claim about secret maps is accurate but some of it is difficult to prove. During the lower-court trial, Republican state Rep. Destin Hall said he and his staffers consulted secret "concept" maps while leading the chamber’s restricting process. He said the maps didn’t incorporate any racial or partisan gerrymanders. But it’s unclear whether the maps were intentionally destroyed. The defendants, in court documents, said only that the maps were "were not saved, are currently lost and no longer exist." While that may raise questions about records retention, it doesn’t prove that the maps were intentionally destroyed.
The state Supreme Court overturned the maps on Feb. 4, and ten days later cited the concept maps in its full opinion.
One reason the N.C. House Democrats’ tweet stands out: the secret maps were on the House side—but the tweet makes claims about the Senate.
As for Daniel and Newton testifying, it’s true that they declined to answer questions in a deposition. But it’s misleading to suggest their silence is indicative of wrongdoing, since they asked the court for—and were granted—protections offered by state laws.
The tweet also could give some readers the impression that senate Republicans didn’t answer questions at all. That’s not the case. Sen. Ralph Hise, the highest-ranking co-chairman of the state Senate’s redistricting committee, was deposed and later testified on the third day of the Superior Court trial.
Let’s review the facts.
The N.C. House Democrats’ Twitter account is run by the Democratic Party’s state House caucus.
Amanda Eubanks, the caucus executive director, told PolitiFact NC the "refused to testify" claim is a reference to Daniel and Newton invoking "legislative privilege," a state law that can protect legislators from having to provide information about some aspects of the lawmaking process.
Before the redistricting trial, plaintiffs sought to depose Daniel, Newton, Berger and House Speaker Tim Moore, also a Republican. Those lawmakers cited legislative privilege and asked to be exempt from the depositions, a motion the court granted on Dec. 24.
Once Daniel and Newton were exempted from depositions, they were viewed as ineligible to testify on the stand. So even if they wanted to testify in the trial, it’s unlikely that they would have been called upon.
That said, the scope of legislative privilege is not well defined in state law. So, in a hypothetical case in which a legislator seeks to avoid questioning, a judge could compel a legislator to answer questions about details that aren’t protected by legislative immunity, lawyers told PolitiFact NC.
"There are some things in public records like communications between legislators and legislative staff, or when they go to the research group and say, ‘If I propose this, is it legal?’ You’re not going to get it because it’s confidential," said Mike Tadych, a partner at law firm Stevens Martin Vaughn & Tadych PLLC, which represents the North Carolina Press Association.
But in a trial, you typically "can’t just assert legislative privilege because you’re a legislator and you don’t want to talk," said Kym Hunter, a senior attorney for the Southern Environmental Law Center. "Legislative privilege could apply potentially to certain parts of what they would be questioned about, but there’s certainly many, many aspects which wouldn't be subject to legislative privilege."
Voting rights group Common Cause, a plaintiff in the case, included Berger and Daniel on its witness list filing on Dec. 31—after the senators had already been granted legislative privilege. Common Cause didn’t call upon either senator during trial, but in court documents the group said it "reserves the right to challenge legislative privilege on appeal."
The N.C. House Democrats’ tweet implies that silence by Daniel and Newton is indicative that the Senate’s behavior was somehow "worse" than that of Republicans in the House.
The accusation is vague and hard to quantify without more information about what action is being measured. When it comes to alleged gerrymandering, none of the three maps drawn by Republican lawmakers stand out as being significantly more partisan than the others. Experts at Princeton University reviewed the state House, state Senate and the congressional maps, giving each an "F" grade, due to "significant Republican advantage."
We asked Eubanks what N.C. House Democrats meant by the statement, and she never directly answered the question.
Hise, meanwhile, testified that the state Senate and House redistricting processes were "very different." Hise noted that he, Daniel and Newton used the same staff assistance provided by Berger’s office. He said he wasn’t aware of any secret maps being used on the Senate side because all maps were required to be drawn in public view. Hise acknowledged that he never issued a specific directive banning staff from looking at concept maps outside of public view—something state Supreme Court justices noted in their recent opinion—but he said aides were aware of the rules.
While the N.C. House Democrats’ tweet raises questions about the senate process, Berger spokeswoman Lauren Horsch noted that Hise’s testimony wasn’t disputed in court. She added that Hise testified—and the others didn’t—in part because the trial was under time constraints.
The N.C. House Democrats’ Twitter account said Newton and Daniel "refused to even give testimony" in North Carolina’s redistricting case. "So the question is—what the hell was going on in the [state Senate] that was so much worse than what was happening in the House?"
It’s true that they did not give testimony. But that’s because the senators invoked a legal protection called "legislative privilege" that allowed them to opt out of answering questions in the case. That move alone doesn’t necessarily mean they have something to hide.
The tweet is partially accurate but leaves out important details, which is our definition of Half True.
Tweet by the N.C. House Dems twitter account on Jan. 31, 2022.
Email exchange with Amanda Eubanks, the caucus executive director for the North Carolina Democratic House Caucus.
Telephone interview with Mike Tadych, a partner at law firm Stevens Martin Vaughn & Tadych PLLC, which represents the North Carolina Press Association.
Telephone interview with Kym Hunter, a senior attorney for the Southern Environmental Law Center.
Story by WRAL, "Secret maps, now gone, were used to draw parts of NC election map," posted Jan. 5, 2022.
Video posted by WRAL, "Day 3: Lawyers for state GOP leaders defend NC's new election maps," posted Jan. 5, 2022.
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