The U.S. Supreme Court should quickly rule against a lower court that on Monday found North Carolina’s Congressional districts are illegally gerrymandered, the state’s top legislators said Tuesday afternoon.
House Speaker Tim Moore and Senate leader Phil Berger lead the Republican-controlled General Assembly that’s in charge of drawing the maps used to elect members of Congress. In a written statement, they said they plan to ask the Supreme Court to step in and issue a stay in a court case that Berger, Moore and other legislators lost on Monday in front of a panel of three federal judges.
“In yesterday’s decision, the three-judge panel forecasted voiding the results of primaries and canceling the November election for Congress,” their statement said. “Such an action would irreparably disrupt campaigns from both major parties across the state that have been organizing, raising money and trying to win over voters.”
The judges did not necessarily say they were going to cancel the November elections. They ruled that the state’s 13 Congressional districts are unconstitutional partisan gerrymanders, and that they were intentionally drawn to give Republicans an undue amount of power and diminish the First Amendment rights of non-Republican voters and politicians in North Carolina.
The judges gave both the legislators and the winning side — government watchdog group Common Cause and the N.C. League of Women Voters — until Friday to suggest how the state should now proceed.
Janet Hoy, co-president of the N.C. League of Women Voters, said Tuesday that “we will continue the fight for equal representation through fair maps” — even at the Supreme Court, which has taken strong positions against racial gerrymandering but has so far punted on the question of partisan gerrymandering.
“We are confident in our efforts to protect and extend the rights of voters as we head into a potentially historic Supreme Court ruling that would ultimately put an end to partisan gerrymandering nationwide,” Hoy said in a written statement.
The judges gave a number of potential suggestions for what both sides might suggest by Friday. One was that the state could cancel the results of this spring’s primaries and hold a new primary election with new, constitutionally acceptable districts in November, followed by a general election before Congress returns in January.
If that happens, the eyes of the country could be on North Carolina, to possibly learn whether Republicans will retain control over the U.S. House of Representatives for the next two years or if Democrats will take over.
The judges also suggested that North Carolina could simply honor the primary victors from this spring, even though they ran in unconstitutionally drawn districts, and then have them run in November in new districts.
In the meantime, someone also needs to draw the new maps for the state to use. The judges also gave some suggestions for that, although any decision is likely to be politically contentious.
Berger and Moore also took issue with the quick turnaround that any plan would require, with the elections fast approaching.
“What the court suggests is simply impossible,” they said.
Not everyone agrees, however.
Jonathan Mattingly, a math and statistics professor at Duke University who studies political redistricting and was called as an expert witness in the trial over the districts, told The News & Observer on Tuesday that it can be done.
“On one level, it seems very hard,” Mattingly said, before noting that the legislature did just recently call itself back into session for a quick rewrite of two constitutional amendment proposals, following a loss in a different lawsuit. In that case, legislators lost the lawsuit on a Tuesday and in less than a week had called themselves back into session, written the new changes and passed them into law.
Mattingly said if legislators can move that fast to fix constitutional amendment proposals for this November’s ballot, they can move fast on redrawing the maps for the ballot, too.
“The integrity of our democracy seems more important,” he said.
Mattingly said it’s not just this recent ruling that concerns him about the integrity of democracy in North Carolina but the fact that these current maps were drawn up only as a replacement for a different set of maps that were also found unconstitutional.
While the current maps have been an unconstitutional partisan gerrymander, the old maps from 2011 were ruled an unconstitutional racial gerrymander.
“Since 2010, we haven’t had an election using a map that wasn’t ruled unconstitutional eventually,” he said, adding that whichever party controls the General Assembly probably shouldn’t be allowed to control the redistricting process for both the state legislature and the state’s seats in the U.S. House of Representatives.
“It seems that there’s been a strong case for checks and balances, having a bipartisan redistricting commission,” Mattingly said.
The judges also took a negative view of the ability of North Carolina legislators to draw fair, constitutionally acceptable maps. Since the current district lines struck down in Monday’s ruling were the legislature’s remedy for its previous set of racially unconstitutional districts, the judges said they might just take away the General Assembly’s authority to draw new maps — at least for the 2018 elections.
In their order Monday, the judges wrote that they planned to hire an outside “special master” to draw lines for a backup plan, “in the event we conclude the General Assembly is not entitled to such an opportunity or we conclude that the remedial plan enacted by the General Assembly fails to remedy the constitutional violation.”
Finally, no matter what happens with this case in the end, the result is guaranteed not to last very long. The state is going to have to do all this again after the 2020 U.S. Census, when North Carolina is expected to gain another seat in Congress due to its fast-growing population.