pic of BOARD OF APPORTIONMENT: (From left) Secretary of State John Thurston, Governor Hutchinson and Attorney General Leslie Rutledge.
BOARD OF APPORTIONMENT: (From left) Secretary of State John Thurston, Governor Hutchinson and Attorney General Leslie Rutledge. Brian Chilson

Plaintiffs continued to argue that Black Arkansans are being denied fair access to political power under newly adopted state legislative maps, while attorneys for the state said it’s too late to change it now, during the final day of witness testimony in a hearing that could put those new maps on ice.

But as the hearing was wrapping up for the day, presiding Judge Lee Rudofsky announced the Supreme Court’s reversal on a similar issue in Alabama. The new Alabama map that a lower court said illegally dilutes Black voting power can stand for now, the Supreme Court said.

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That F.U. to Black voters in Alabama bodes well for Governor Hutchinson, Attorney General Leslie Rutledge and Secretary of State John Thurston, who make up the Board of Apportionment empowered by state law to draw and adopt new state legislative lines every 10 years.

When the Board adopted them in November, Hutchinson touted the new maps as creating 13 House districts out of 100 in which minority voters make up the majority of the vote. But his math was off somehow. In fact, the new map includes only 11 majority Black districts.

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That’s one fewer than the 12 Black majority districts Arkansas had over the last decade, even though Arkansas’s Black population increased by more than 27,000 people since the 2010 Census. The number of districts in which white voters make up the majority goes up in the map adopted in 2021, even though Arkansas’ white population shrank by about 110,000 over the past decade.

The Arkansas Chapter of the N.A.A.C.P. and the Arkansas Public Policy Panel are seeking an injunction that would keep these new maps from going into effect. Their attorneys from the American Civil Liberties Union brought forward a parade of brainy political science experts and boots-on-the-ground Arkansans to lay out their case.

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Attorneys with Leslie Rutledge’s office have argued that race is only one of the factors to look at during redistricting, and that the maps adopted in November meet most of the criteria they’re supposed to. The defendants also point out that changing maps now would throw the upcoming election cycle out of whack and create lots of work for county clerks.

On Monday, a handful of Arkansas Republican former office holders who were hired to work on the redistricting project testified. Republican former state House member Doug House served in the state House of Representatives from 2013 to 2021, and is now working for Rutledge’s office as a contract attorney during redistricting. He told the court that drawing more Black majority districts would have been the real gerrymander because it would indicate too much emphasis had been put on race.

As an example, House cited an area currently represented by Black Democrat Monte Hodges, whom he called a close personal friend. Under the old district lines in place from 2011 to now, Hodges’ district was majority Black. The new lines make it majority white. House said this change was unavoidable because the new lines were created taking into consideration all the criteria set by the Board of Apportionment, which include compactness, keeping communities of interest together, and making sure each of Arkansas’s 100 state House districts encompass roughly the same number of people. Compliance with the 1965 Voting Rights Act, which prohibits drawing maps that discriminate either on purpose or not, is only one of the nine criteria to be considered, he said. Tweaking the district to give it a Black majority would be illegal, House reasoned. “It would be racially gerrymandering to alter the map to achieve a specific result,” he said.

Betty Dickey, a former Arkansas Supreme Court justice hired as coordinator for the redistricting process, also testified that mappers couldn’t think too much about giving Black voters a more proportional share of political power. “We had a balancing act of not targeting or giving preferential treatment,” she saId.

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Kymara Seals, a Black woman and policy director for the Public Policy Panel, testified about her lifelong pursuit of ballot access and political power for Black Arkansans. She pointed to examples of the damage caused by under-representation at the Capitol. Seals said a bill called the “Saving America’s History Act” by Rep. Mark Lowery (R-Maumelle), which would limit what could be taught about American slavery and systemic racism in Arkansas public schools, was offensive. “It was as though my history is not part of American history,” she said.

This isn’t simply a partisan issue, Seals said. She’s currently working on a campaign for a Black Republican candidate, and said she had these same concerns about Black voters’ access to power when Democrats controlled the state Capitol.

Andy Davis, another former Republican state House member who was hired on as a contractor for the redistricting process, testified over four hours Monday about his role as the main architect of the new maps. Davis has an engineering degree, and he said he got some training from the state GIS office and attended a seminar in Salt Lake City to prepare to work on the new legislative maps. While he wasn’t the only person who worked on crafting the new lines, Davis said he took a leadership role.

He described the nine criteria that had to be considered while drawing new districts as a “tug of war” and acknowledged that it wasn’t possible to meet all nine criteria for all districts.

His testimony got quite messy when he acknowledged that he made an error in his official declaration to the court, and that the attorney general’s office did not fix the error even though he told them about it. The declaration suggested Davis and others working on the maps didn’t begin to consider the race of voters until the new lines were already substantially drawn. On Monday Davis said that was not accurate.

Judge Rudofsky sent Davis out of the courtroom for an intense exchange about why attorneys for the state hadn’t corrected the declaration as soon as they knew it was inaccurate. By leaving it in, he suggested it could appear that attorneys were trying to present misleading information. Ultimately the judge decided it was a case of miscommunication, but not before he gave the Arkansas Attorney General team a dressing down.

Back on the stand, Davis answered Assistant Attorney General Jennifer Merritt‘s questions about the time crunch he and others worked under to get the maps drawn on time with Census data that came in more than a month later than they expected.

He said he had no discussions during the map-drawing process about the state’s 16.5% Black population, and said he and others involved in redistricting did not do a racial block analysis. Davis appeared not to be familiar with the difference between voting age population and citizen voting age population, which he acknowledged could have affected the map-drawing process. The citizen voting age population is the number of people who are both of age to vote and eligible to vote, not simply here as a non-citizen or currently incarcerated, for example, and therefore ineligible to vote. Davis said he and other map drawers considered only voting age population figures.

He also said it was his fault that Rutledge gave incorrect information about why she wouldn’t consider an option submitted during the public comment period. An alternative map from the American Civil Liberties Union would have created 16 Black majority House districts, a close match to the state’s 16.5% Black population.

Rutledge announced at the November public meeting where the board adopted final maps that the submission from the ACLU was ineligible for consideration because it included only 99 districts, not 100. Rutledge also said despite that ACLU’s claims their map included 16 Black majority districts, it only had 13.

It was an embarrassing accusation, but it turns out it was also untrue. The map the ACLU sent for consideration included all 100 districts and their calculation of 16 Black majority districts was correct.

Davis said he is the one who mistakenly told Rutledge the ACLU map had only 99 districts. He said he doesn’t know who told Rutledge the ACLU-suggested map had only 13 Black majority districts.

(This misrepresentation of the ACLU’s submission was one of many that dogged the Board of Apportionment over the past few months. Their much ballyhooed majority Hispanic district in Northwest Arkansas turned out to not actually be majority Hispanic at all, with fewer than 30% of its voters being Hispanic and eligible to vote.)

Davis had submitted a written report about why he thinks an illustrative map offered up by plaintiffs that includes 16 Black majority districts is not acceptable. His objections included districts that he thought were too long, or that split cities into too many separate districts. Under cross examination, though, plaintiff’s attorneys showed that purported flaws Davis used to argue against the illustrative map are actually present, sometimes in greater numbers, in the map the Board adopted.

In the plan adopted by Hutchinson, Rutledge and Thurston, predominantly Black Pine Bluff is split among three districts. One of those districts only barely reaches into the city limits to grab nine voters in Pine Bluff, one of whom is incumbent Democratic Rep. Kenneth Ferguson*. Ferguson’s redrawn district is overwhelmingly rural and white, while the other two districts in Pine Bluff are each packed with a two-thirds Black population. The illustrative plan offered as a possible alternative splits Pine Bluff into five districts, creating more Black majority districts. Davis objected to this. But ACLU attorney Neil Steiner pointed out that Sherwood and Benton, cities substantially smaller than Pine Bluff, are both split among four districts in the plan adopted in November. Steiner also pulled up multiple examples of districts the Board approved that will require representatives to drive long distances to meet with all their constituents.

In signing off, Davis said he stood by the maps he helped create. “I think they’re better than the 2010 maps,” he said.

The final witness was Josh Bridges with the Arkansas secretary of state’s office, who described in minute detail the schedules and requirements county election officials are up against to prepare for upcoming elections. Bridges said it would be disastrous to tell election workers to stop what they’re doing because the House maps are going to change.

You might be wondering if perhaps Republicans saw this conundrum coming when Census figures were late, and if they perhaps took full advantage of the squashed timeline to draw the lines however they wanted, knowing Democrats and minority voters wouldn’t have time to contest them before the next election. Judge Rudofsky asked Bridges about this possibility, noting it didn’t seem very fair.

Bridges said the late Census figures were unprecedented and threw the process out of whack in a way that’s not happened before.

Bridges finished up a little after 8 p.m. Court will resume Tuesday at 9 a.m. for closing statements and questions from the judge.

*A previous version of this post confused state Rep. Deborah Ferguson (D-West Memphis) with Rep. Kenneth Ferguson (D-Pine Bluff).