Commission Structure

Table of Contents:
– County Districting Models
– Variations and Combinations
– What’s the best system?
– Consent Decrees
– How can we change the structure?
– When are at-large districts unconstitutional?

County Districting Models

North Carolina’s county commissions use several different district models. These include: single-member districts, multi-member districts, districts-at-large (DAL) and at-large (AL). Some counties combine two or more of these systems. See below for brief explanations on how each of these work and information on which system your county uses.

Gerrymandering and districting model. Gerrymandering methods vary by county commission structure. (Gerrymandering=drawing districts for partisan advantage). For each county districting model below there is a section regarding how the districting model can be gerrymandered. Read here for more about county districts gerrymandering.

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What’s the best system for local representation?

Good Government groups have supported single-member districts for local bodies such as county commissions for many years. In this system, each county is divided into several equal-population districts, each with one commissioner who is elected by the voters in that district. A variation on this system adds 1-2 commissioners elected at-large county-wide, which can provide better representation of broadly shared interests.

Single-member districts allow for better representation of the different groups in the county and ensure that major groups within the electorate have a strong voice on the council. This is especially important where groups with varying interests are geographically concentrated in particular parts of the county (whether those groups are defined by income levels, race, ethnicity, urban vs. rural, or other factors).

When all of the county commissioners are elected at-large (everyone votes for all of them), it’s easy for the largest group to win all or at least most of the seats. The dominant group may be defined by party, race/ethnicity, income, or where they live. At-large systems enable a dominant group to limit the ability of people in other groups to make their voices heard on the commission. At-large systems have often been found to be unconstitutional by the courts.

Consent Decrees

Many North Carolina counties have been sued under the Voting Rights Act to change how local boards are elected. In 30 counties, the parties to the case agreed on a mutually acceptable solution, rather than pursuing the case to a final judgment. These agreements were formalized through court-approved consent decrees requiring the county commission, city council, or school board to change how its member are to be elected. Many of these agreement were codified into state law by an act of the NC General Assembly.

Of the 22 such agreements reached that change county boards of commissioner elections, all but one (Montgomery) remain in force. These agreements must be followed in the 2021 redrawing.

Michael Crowell, former UNC School of Government faculty member, has compiled a list of such consent decrees. The county boards still subject to VRA consent decrees include: Beaufort, Bladen, Caswell, Columbus, Duplin, Forsyth, Granville, Halifax, Harnett, Jones, Lenoir, Martin, Onslow, Pamlico, Pasquotank, Pitt, Richmond, Sampson, Tyrrell, Vance, and Washington. See Crowell’s “Local Boards in North Carolina Subject to Judgments or Consent Orders in Voting Rights Cases” for more information (PDF file, last updated May 2021).

How can we change the structure of our commission?

What can you do if you want to change the system for electing commissioners in your county to single-member districts (or to some other system) in order to better represent the diverse interests in your county? 

The short answer is that it is now too late to change the county commission structure for the next election (2022) unless the legislature adopts a special local bill to do that in time for candidate filing, which begins in early December. Obviously, this is not likely to happen.

Barring action in the legislature, structural changes must be approved by the commission and then approved by the voters in the next county-wide election. The new system is then phased in starting in the next election after that, assuming voters approved the change.

Changes in structure do get done, though! Since 2010, eight counties have changed the number of county commissioners on their boards. In general, there are three ways to change the county commission structure:

1. The county commission can adopt a different structure by a vote of its members. The new plan must then be ratified by the voters in a county-wide referendum. Implementation of the new plan is phased in beginning with the next election. (All currently serving commissioners get to finish their terms.) If a county commission adopted a new structure in the next few months, it could be ratified in the 2022 election, with implementation beginning with the 2024 election.
2. NC’s legislature could adopt a new structure by passing a “local law.” Your NC House and Senate members can introduce a bill setting out a new district structure, which becomes law if it is passed by both the NC House and Senate (local laws are not subject to the governor’s veto). The legislature has adopted local laws that changed county commission structures many times in the past (in Guilford, Forsyth, Lenoir, Mecklenburg, and Scotland, for example). Many of these followed a court ruling mandating a change. It could also be adopted later in the decade and phased in.
3. The structure could be changed by order of the court (or as part of a court-mediated settlement to a lawsuit resulting in a “consent decree”). This process begins with a lawsuit challenging the current structure as an infringement of voters’ rights that violates the US or NC Constitution, the Voting Rights Act, or North Carolina law, backed up by evidence. This is the method used to change Jones County’s commission to single-member districts in 2017.

If you want to change your county’s method of selecting commissioners, you can get started now and work to introduce a change mid-decade. Regardless of which approach you choose, it’s never too early to start discussions among your fellow county residents, assess where county commissioners stand, and generate public support for change.

At the same time, if your county is redistricting in 2021, don’t miss the chance to help shape the new maps, even if you would prefer a different model for your county commission!

FairCountiesNC can help you consider the options, decide which (if any) are feasible in your county, and begin the process of holding community discussions. Whichever path you decide to pursue, community discussions will help people in your county to get ready for the 2021 redistricting and prepare for the legislative and Congressional redistricting.

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When are at-large districts unconstitutional?

At-large elections—where everyone in the jurisdiction votes for all of the open seats—are not inherently unconstitutional. We elect our Governor, our US Senators, and the members of our NC Supreme Court and Court of Appeals at-large, for example.

At-large commissions have been thrown out by courts in North Carolina and around the country many times where they have been found to systematically deny the right of a large bloc of minority voters to elect the candidates of their choice. In an at-large system, a minority group’s preferred candidates can all fail at the ballot box if majority group voters stick together. This consideration applies only when the minority is sufficiently large, geographically concentrated, and politically cohesive that it would have a reasonable chance of electing one or more of its preferred candidates if voting were district-by-district rather than at large.

The key case for county commissioner districts is Rogers v Lodge, decided by the US Supreme Court in 1982, which contested an at-large system in a rural Georgia county with a large Black population on the basis that it was a racial gerrymander. The justices ruled that this system unconstitutionally violated the 14^th and 15^th Amendments of the US Constitution by diluting the Black population’s votes. The majority further held that this finding did not require proving intent to discriminate. This decision still stands–it was not affected by the later decision that rendered parts of the Voting Rights Act unenforceable.  

Dozens of cases challenging at-large county commissions (and other discriminatory practices) were brought successfully using the Voting Rights Act in the period between 1980 and 2017. Two noteworthy North Carolina rulings buttress show how this process worked: In NC Republican Party v. Hunt and Hall et al. v. Jones County BOC. Let’s start with GOP v. Hunt. Until 1994, NC Superior Court judges ran in districts for the primary, but then had to run statewide in the general election. Under this system, Republicans were effectively closed out:  between 1900 and 1994, only one Republican won election as a Superior Court judge! This was in effect a statewide gerrymander and was ruled unconstitutional by the federal Eastern District Court in 1994. Superior Court races are now run by district and Republicans are regularly elected (or re-elected) to the Superior Court. In 2020, GOP candidates won 9 of the 21 superior court races, including all four races that were contested.

In Hall v. Jones County BOC, the 2017 complaint stated that: “The number of voting-age African-American residents of Jones County is sufficiently large and geographically compact to constitute a majority in at least one single-member district. African Americans vote as a cohesive bloc, but their candidates of choice are often defeated by the candidates of the white voters of Jones County. Thus, the at-large election scheme dilutes the African-American vote and deprives African-American voters of an equal opportunity to elect candidates of their choice.” These are the key points that define a VRA Section 2 case. The complaint noted that, “the last African-American candidate to be elected to the Jones County Board of Commissioners was in 1994, and, upon information and belief, only three African Americans have ever been elected to the [Jones County] Board of Commissioners”. This case was brought under Section 2 of the Voting Rights Act, which remains in force. The Jones County Commission and the plaintiffs chose to negotiate a settlement, rather than pursuing the case to a conclusion. As a result, Jones County’s at-large commission districts were redrawn as single-member districts. The current commission includes seven members, of whom two are Black, including the Vice Chair.

The bottom line:  At-large districts can be—and have been—used to gerrymander a minority group out of the winner’s box. This does not mean that every at-large system is unconstitutional, but at-large systems deserve extra scrutiny. This is particularly so when, as in North Carolina, there is a historical pattern of suppressing minorities at the ballot box. The need for scrutiny is even stronger in localities where the representation of racial minorities on the commission (or town council, etc.) shows a consistent pattern of falling well below the minority population’s share of the total population.

North Carolina has made substantial progress in increasing Black representation on county commissions, town councils, and other elected bodies. The percentage of Black county commissioners has risen from below 3% in 1974 to 20% in 2020, close to the estimated 2020 population share of 22%. This measure of progress does not mean that race and racial gerrymandering are no longer factors to be examined in North Carolina redistricting. Indeed, the most recent court case finding racial gerrymandering in our legislative districts was decided (and districts redrawn) only two years ago!