Republican lawmakers are appealing to the U.S. Supreme Court to block the ruling this week that struck down North Carolina’s congressional districts – at least temporarily – and they want an answer by Jan. 22.
Phil Strach, the Raleigh-based attorney representing Republican lawmakers in the partisan gerrymandering case, stated in his 22-page request for an emergency stay on the order issued Tuesday that a three-judge panel “has used an entirely novel legal theory to hopelessly disrupt North Carolina’s upcoming congressional elections.”
On Tuesday, a panel of three federal judges ruled that in 2016, the Republican-led General Assembly in North Carolina unconstitutionally gerrymandered the state’s 13 congressional districts to ensure their party’s “domination of the state’s congressional delegation.”
The judges – James A. Wynn, a Barack Obama appointee to the 4th U.S. Circuit Court of Appeals, and U.S. District Judges W. Earl Britt. a Jimmy Carter appointee, and William L. Osteen Jr., a George W. Bush appointee – gave the lawmakers until Jan. 24 to adopt new maps, which are to be turned in to the court with a record of any hearings by Jan. 29.
The filing period for candidates in the 2018 elections in North Carolina is set to open Feb. 12.
“Prohibiting the state from using the duly enacted districting map that governed its last election cycle is not just practically disruptive, but represents a grave and irreparable sovereign injury,” Strach stated in the request for intervention.
Wisconsin, Maryland and NC arguments
Additionally, Strach contended, blocking the effects of the order by the three judges would be in keeping what the high court had done in a Wisconsin case that tests the breadth to which lawmakers can redistrict for partisan gain. That case points to the “efficiency gap,” a theory that gerrymanders force the disadvantaged party to “waste” votes. Voters are shifted into districts where their votes won’t matter, either because their party’s candidate can’t win or is already sure to win.
The lawmakers’ attorney also mentioned a Maryland redistricting case in which Republican challengers have accused Democrats in power of drawing a congressional district to weaken their party’s vote in violation of free speech rights.
Both legal arguments were made in the North Carolina case, the first ruling in which the federal courts have found congressional districts to be unconstitutional partisan gerrymanders.
Common Cause and the League of Women Voters argued that the plan violated the Equal Protection Clause because it discriminated against non-Republican voters. The groups argued free speech rights were violated because the plan discriminated against voters based on previous political expression. They also argued the congressional election map interfered with the right of the people to elect their representatives.
At hearings last year in a Greensboro courtroom, the challengers called mathematicians and other experts to elaborate on statistical models built to highlight the efficiency gap.
The North Carolina case differed somewhat from those in Wisconsin and Maryland because of statements made by Rep. David Lewis, a Harnett County Republican who led the redistricting process in 2016 after the federal court ruled that a map drawn in 2011 contained two unconstitutional racial gerrymanders.
In an effort to make it clear that race had not been considered in the drawing of the 2016 maps, Lewis made a comment that provided the underpinnings for the partisan gerrymander case.
“I propose that we draw the maps to give a partisan advantage to 10 Republicans and three Democrats because I do not believe it’s possible to draw a map with eleven Republicans and two Democrats,” Lewis said at the time.
Can the May primary be delayed?
The federal judges announced that they would employ “a special master,” a mapmaker unaffiliated with either party, to draw maps they could consider alongside any put forward by the lawmakers.
“Simply put, after taking months to issue an opinion adopting multiple entirely novel theories of partisan gerrymandering, the three-judge court has given the General Assembly just two weeks to draw a third congressional map, which is sufficiently unlikely to pass the court’s muster that the court has already decided to have a special master draw a competing map,” Strach said in his court filing. “Having already ignored the prerogatives of the political branches to play the primary role in elections to that degree, it is no surprise that the district court apparently does not even intend to decide which map to impose in time to comply with upcoming voter assignment and filing periods.”
North Carolina voters have elected congressional representatives in three election cycles this decade with maps that have been declared unconstitutional by the courts.
A different three-judge panel that also includes Wynn is considering state House and state Senate districts.
In that case, challengers contend that maps adopted in 2017 violate the state and federal constitutions and fail to correct the unconstitutional racial gerrymandering found in maps used for the 2012, 2014 and 2016 elections.
By midday Friday, the federal judges had not yet ruled on the state legislative case but told attorneys last week that they were aware of the tight timeline before the filing period.
Several times over the past three decades, primary elections were delayed either in whole or in part for district maps that had to be redrawn.
At least one time, elections were held for maps ultimately deemed unconstitutional.
New maps were drawn after that and new elections held.
Gerry Cohen, a former legislative staffer who worked on redistricting plans from 1981 to 2011, echoed on Friday what he said last year after North Carolina’s congressional maps were declared to have two unconstitutional gerrymanders. There might be a week or two at play for any shifting of the filing period and primary election cycles. The primary is scheduled for May 8 and runoffs from that are set for July 17. Absentee voting for the May primary begins on March 19.
“There are so many different moving pieces here,” Cohen said. “Who knows what might happen.”