As the political battles heated up over who should replace Justice Antonin Scalia on the U.S. Supreme Court, lawyers familiar with North Carolina’s redistricting case and other high-profile lawsuits took time on Sunday to weigh what impact the conservative jurist’s death might have on their cases.
The North Carolina redistricting case, which invalidated the state’s 1st and 12th congressional districts, is one that could see a different outcome now, legal analysts speculate.
Some analysts say Scalia’s death makes it much more likely that North Carolina’s March 15 primary elections will be delayed – at least in the congressional races.
Until a new justice is appointed – and U.S. Senate Majority Leader Mitch McConnell has promised a delay for anyone President Barack Obama nominates – there could be a succession of 4-to-4 vote standoffs among the remaining justices.
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In such cases where there is a tie, the lower court ruling stands as if the high court had never heard the case.
But as has been proven often during the two weeks since the federal court ruling describing North Carolina’s 1st and 12th districts as racial gerrymanders, there are few simple answers with a redistricting case.
“The primaries could be delayed, especially if the court does not grant a stay,” said Rick Hasen, a law professor at the University of California-Irvine who writes about the laws of politics and politics of the law. “If the court does grant a stay, then the primaries won’t be delayed.”
The state filed a request last week, asking the country’s highest court to halt the impact of the three-judge panel’s ruling until a fuller appeal could be heard. The state’s attorneys argued that because absentee ballots had already been cast in the districts under scrutiny, changing the lines this late in the electoral process would confuse voters and create unfair results.
The challengers, who have a response due to Chief Justice John Roberts by 3 p.m. Tuesday, have argued that illegal elections in the gerrymandered districts have occurred twice already since the maps were drawn in 2011. They argued against further delay, and plan to submit further argument to that point on Tuesday.
Roberts, who handles stay requests from the circuit that North Carolina is in, typically shares such matters with his colleagues, but he could rule on his own.
“I’ve been predicting a stay from the Supreme Court of the District Court order, which would stop the current election (already begun with absentees) and have the state quickly redistrict and hold new elections with new district lines,” Hasen said in a post to his blog, electionlawblog.org. “With Justice Scalia’s death, a stay is now less likely if the Court divides along liberal-conservative lines.”
Irving Joyner, a N.C. Central University law professor and attorney representing the NAACP, said he and others were looking for ways to get justices to cross the ideological divide.
“In those cases, where you’re dealing with equal protection, voting rights,” Joyner said Sunday. “The court is probably going to be stymied at a 4-4 deadlock.”
Since the retirement of Justice Sandra Day O’Connor, Justice Anthony Kennedy has been the swing vote on many of the court’s 5-4 decisions.
“We’re still trying to figure out what is the trigger that moves him,” Joyner said. “The question at the bottom level is state rights, and whatever the states can do.
“The conservative judges tend to give the states a lot of leeway. I don’t see Justice Kennedy as an ideologue on state’s rights.”
Scalia’s death came a day after N.C. House Speaker Tim Moore and Senate President Pro Tem Phil Berger appointed a committee to hold hearings on new district lines for the 1st District, which stretches from Durham to the northeastern corner of the state, and the 12th District, which snakes from Charlotte to Greensboro.
The committee will meet on Tuesday to consider that feedback and how it will apply to the three-judge panel’s court order.
Anne Blythe: 919-836-4948, @AnneBlythe1