North Carolina’s civil war over its election map will stretch on for at least another week – raising more questions about whether the state’s March 15 primary takes place as scheduled.
Tuesday night, Gov. Pat McCrory and other state leaders asked Supreme Court Chief Justice John Roberts to set aside a lower court order that found portions of the state’s congressional district map unconstitutional. The three-judge panel also gave the state until a week from Friday to come up with a new map.
Wednesday afternoon, Roberts responded. He gave the plaintiffs in the case, including retired Charlotte-Mecklenburg school teacher Christine Bowser, until next Tuesday to respond to the state’s request for a delay.
State lawyers have argued that with the primary about a month away – and with absentee ballots already being returned – any changes will throw the upcoming election into turmoil. Yet without any guarantees on when and how Roberts or the full court will rule, McCrory may be compelled to call the legislature into special session next week to meet the lower court deadline for new maps.
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“The timing of this process practically means the state needs to prepare ... a new map, just in case the (earlier) order is upheld,” said Kareem Clayton, a Vanderbilt University election law expert who has followed the North Carolina case.
The state could also delay the congressional primaries, while holding the other elections not affected by the court fight. Similar fights over district lines led to election delays in 1998 and 2002.
“It is hard still to make a prediction,” Michael Gerhardt, a constitutional law expert at the UNC School of Law, said after Roberts’ order. “Even if the legislature makes a move, who is to say that will not be challenged in the courts? Where it thus goes from here is really impossible to say.”
Rich Hasen, an election-law specialist at the University of California-Irvine, said Wednesday he had expected Roberts or the high court to overturn the earlier ruling and keep the current lines in place through November. Given the length that Roberts has set aside for the opponents’ response, now he’s not so sure. “If the court or Roberts were certain to stay, they wouldn’t give as much time,” he said. “But we’re reading tea leaves ... As always, the Supreme Court keeps us in the dark until the last minute.”
Bowser and David Harris’ 2013 lawsuit claims Republican legislators unlawfully used race – and not partisan politics – in setting the boundaries for the 12th and 1st congressional districts. The 12th tracks Interstate 85 from Charlotte to Winston-Salem and Greensboro. The 1st extends east from Durham to Elizabeth City. Both are represented by Democrats. As drawn, African-Americans make up more than half the population.
Late Tuesday, the three judges rebuffed a state request and refused to set aside their ruling – saying the harm to voters forced to live under the lines for another election was greater than the inconvenience created for the election calendar.
Now the case idles for a week on the desk of Roberts and perhaps the full court. Both have become well versed in the state’s voting wars.
In 2014, less than a month before the general election, a divided Supreme Court stayed a lower court decision that found some of North Carolina’s new election laws unconstitutional. Again, the state argued that changing election rules so close to polling day would cause widespread confusion among voters.
State Sen. Bob Rucho, a Matthews Republican who played a key role in creating the disputed 2011 district map, did not respond to requests for comment Wednesday. But in a prepared statement, he and Rep. David Lewis, the redistricting chairman in the N.C. House, thanked the Supreme Court for “giving this issue thoughtful consideration and will refrain from taking any other action at this time.”
Given the calendar, the high court could again side with election logistics. But legal experts say that would mean thousands of voters would cast ballots under a potentially unconstitutional election map. “I have a hard time imagining the Supreme Court doing that,” said Kareem Crayton, a Vanderbilt University law professor and an expert in redistricting fights.
That would mean the legislature would be forced to redraw the maps and/or the congressional primary would be delayed. In a similar case in Virginia, legislators told the court that they couldn’t redraw the voting maps so the judges did it instead. That map will be used this year for the Virginia elections.
Both Crayton and Richard Hasen, an elections-law expert and law faculty member at the University of California-Irvine, expect Roberts to bring the North Carolina case before the other justices. The issue of redistricting is fresh in their minds. Last year, the court struck down Alabama’s redistricting lines by a 5-4 vote, with the majority saying that race had been the predominant motivation in how the map was drawn.
The court normally allows legislators to craft voting lines for political gain but not with overriding racial motivations. In North Carolina and other Southern states, that’s a hard distinction to make.
“North Carolina, like Alabama, is one of those states where race relations have a long history of friction,” Gerhardt said. “I think when people try to gerrymander districts, those results have always included concerns about race.”
Four N.C. redistricting fights in the 1990s involving the 12th District found their way to the Supreme Court. Back then the complaints were filed by conservatives who said Democrats had improperly drawn the maps to insure the election of blacks.
“Now the tables are turned, the same claim has been flipped,” says Hasen, who expects Roberts or the full court to act quickly on the current case.
While the courts continue to dissect gerrymandering for racial or political considerations, the fact remains that it works.
In North Carolina’s 2014 congressional elections, Republican voters outnumbered Democrats 55-44 percent. Yet because of the way those voters were grouped, the state elected filled its congressional seats with 10 Republicans and three Democrats.
In the 12th, 1st and 4th districts, Democrats cast around 75 percent of the votes, election figures show. Elsewhere, the Republican majorities ranged from 57-69 percent.
Court fights over district lines led to election delays in North Carolina in both 1998 and 2002.
Michael Bitzer, a political scientist at Catawba College, doesn’t expect that to happen this time around. He predicts the Supreme Court will “put things on hold” for the short-term and allow the congressional elections to proceed as scheduled.
In time, he expects either the courts or legislature to revisit the map.
For example, he said, the GOP-controlled legislature could decide to satisfy the federal court by removing one of three major urban areas from the 12th and placing it in a nearby district represented by a Republican.
“Pulling one of them out could make the districts (affected) a little more competitive,” Bitzer said, but would not likely mean any change in which party represents the districts.
Staff writer Tim Funk contributed.