(Updated, 8/28, 4 p.m.)
A panel of three federal judges threw North Carolina’s congressional elections this fall into uncertainty Monday by declaring the state’s congressional district map to be unconstitutionally gerrymandered for Republicans. This is potentially big — although no one is quite sure how big, as questions now swirl about what the ruling means for November.
Lets tackle some those questions.
What exactly did the judges rule?
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The panel of three judges ruled that N.C. Republicans violated the Constitution in drawing congressional district maps to give themselves an advantage in elections. This is not a surprise — the three judges had ruled as much in January, and Republicans admitted as much when they drew the maps.
So it’s a certainty that the districts are unconstitutional?
No. While the Supreme Court has previously ruled against gerrymandered maps that disenfranchise a racial group (that also was a North Carolina case) the Court has not ruled that gerrymandering maps for political reasons is unconstitutional.
What case does the three-judge panel make?
A very thorough one. The judges said that N.C.’s congressional maps violate Article 1, the First Amendment and the Equal Protection Clause. If you have some time and want to dig in, go to this terrific explainer from N.C. political scientist Michael Bitzer. But boiled down, the judges essentially ruled Monday that our state’s gerrymandered maps interfered with voters rights to select a candidate by intentionally favoring certain political parties or candidates. It’s what many — including editorial boards — have been arguing in principle for years.
Didn’t the Supreme Court send this case back to North Carolina after that first ruling in January?
Yes. The Court declined in June to hear an appeal on that ruling, instead sending it back to the three-judge panel to determine whether the plaintiffs in the case had standing based on the Supreme Court’s ruling in the Wisconsin case Gill v. Whitford. The panel of federal judges decided emphatically Monday that yes, the N.C. plaintiffs had standing.
So this is going back to the Supreme Court?
Almost certainly, but in two stages. Eventually, the Court will rule on the merits of this case, but first, N.C. Republicans said Tuesday they will ask the Court to put the federal decision on hold so that November’s elections can be held under the current maps.
Will that happen?
The Supreme Court historically has been very reluctant to approve of judicial actions that affect impending elections the way Monday’s ruling would. But the Court, which now has eight members after Justice Anthony Kennedy’s retirement last month, very well could tie on such a vote. That would leave the current ruling in place.
Note: In a must-read post on the N.C. case, election law expert Rick Hasen says: “Justices Breyer and Kagan could agree that it is too late and agree on an order to delay this until the Court can consider the issue as a whole next term and before the 2020 elections. So the key to this is Breyer and Kagan, I think, and I’m not sure how they will go.”
What happens then with November’s elections?
That’s the big question. If the Supreme Court doesn’t put things on hold, the three-judge federal panel could give Republicans one more shot at drawing maps, although that’s unlikely. More likely is that a special master would be assigned to (very quickly) redraw the districts. Then the judges would decide whether to hold 2018 general congressional elections without party primaries, or hold primaries in November and a general congressional election after the first of the year.
Both those options sound like a mess.
Yes. But the judges have ruled that the 2018 primaries were held under unconstitutional maps. They appear to want to start over.
In a nutshell, the judges appear to have run out of patience with N.C. Republicans and their maps. In their ruling Monday, the judges noted that the state’s congressional districts have twice been ruled unconstitutional. Monday’s ruling was the equivalent of a parent putting a foot down firmly.
Wait. Does that mean that losing primary candidates would get to run again?
Incredibly, it could. And that could mean there’s at least one Republican who wouldn’t mind starting from scratch: Robert Pittenger, who lost to Mark Harris in the NC-09 primary. If the three-judge panel rules that primary elections or an open general election should be held in November, Pittenger and other primary losers could have new life.
If you’re wondering what part of NC-09 is in Mecklenburg County:
So what’s next?
Most importantly, the Supreme Court will decide whether to hit the pause button. If that doesn’t happen, the three-judge panel has asked plaintiffs and defendants how they prefer to move forward. Plaintiffs will likely argue for primaries in November and a general election in January. We imagine there’s already a short list of potential special masters, and that each is ready to draw new maps quickly.
So when will we know about November?
You won’t have to wait long.