RALEIGH — An Aug. 27 federal court ruling throwing out North Carolina’s congressional maps has added new complications to an unsettled election schedule. The decision adds another wrinkle to the state’s 2018 election.
Over the course of 321 pages, a three-judge panel raised the prospect that state lawmakers might be forced to redraw congressional maps in the next few weeks. Judges also suggested that new congressional maps may force a primary on Nov. 6 — election day for every other state and local race — and a special election for the state’s 13 congressional districts in January 2019.
David McLennan, a professor of political science at Meredith College, offered several likely alternatives from the ruling: The legislature redraws the maps and submits them to the judges for approval; a court-appointed special master redraws the maps; or Republican leaders ask the U.S. Supreme Court to intervene.
Not long after McLennan spoke to Carolina Journal, GOP lawmakers formally asked the federal justices to step in.
“What the court suggests is simply impossible. I’m not aware of any other time in the history of our country that a state’s Congressional delegation could not be seated, and the result would be unmitigated chaos and irreparable voter confusion. The Supreme Court must step in to correct this disastrous decision,” Senate leader Phil Berger, R-Rockingham, said in a joint statement with House Speaker Tim Moore, R-Cleveland.
A stay by the Supreme Court would halt proceedings and allow the congressional election to proceed on schedule using the current districts and with the candidates who’ve already filed.
The redrawn maps, sparking a legal spat between the General Assembly and advocacy groups, came about after a ruling in a separate lawsuit. In that case, a federal court ruled that two congressional districts were racially gerrymandered.
Lawmakers then were ordered to redraw the congressional maps, but Common Cause and the League of Women Voters filed a new complaint arguing that the new maps gave Republicans an unfair advantage.
In January, the three-judge federal panel ruled the maps an unconstitutional partisan gerrymander, but the defendants appealed. The U.S. Supreme Court in June declined to hear the case and returned it to the lower court. Justices asked the lower court to reconsider its earlier ruling in light of the Gill v. Whitford redistricting decision. In that Wisconsin case, the Supreme Court questioned election map critics’ legal standing to mount a court challenge.
The three-judge panel in North Carolina used the August ruling to affirm its earlier decision that the General Assembly unconstitutionally gerrymandered congressional districts to favor Republican candidates over Democrats.
“By definition, partisan gerrymandering amounts to an effort to dictate electoral outcomes by favoring candidates of one party and disfavoring candidates of another,” U.S. Appeals Court Judge James Wynn wrote.
Wynn authored the majority opinion. Judge Earl Britt supported Wynn’s opinion, while Judge William Osteen agreed with part of the reasoning.
The panel even suggested the General Assembly adopt a map drawn by redistricting expert Jowei Chen of the University of Michigan.
“We’re pleased that a North Carolina federal court has once again stated what we have long believed, that extreme partisan gerrymandering is unconstitutional,” Bob Phillips, the executive director of Common Cause NC, said in a news release. “This is a historic win for voters and a significant step towards finally ending gerrymandering.”
The Supreme Court could hear the case. But Justice Anthony Kennedy’s retirement left it with eight members. Also, the court isn’t scheduled to hear any appeals until the October session, so it’s possible new maps won’t be used until the 2020 election.
“The full court could take up the issue, or one justice could issue a stay, which would delay the judges’ ruling, perhaps until after Nov. 6,” McLennan said. “If there is a 4-4 split, that would allow the judges’ ruling to stand.”
McLennan said postponing the congressional election is unlikely, given the Supreme Court’s history.
“Even their recent rulings with the Wisconsin and North Carolina gerrymandering cases seem to indicate their preference for letting elections go forward,” McLennan said.
Election deadlines are fast approaching with options dwindling daily. Congress convenes Jan. 3, 2019, so ensuring new maps are constitutionally sound and absentee ballots are sent out in time would be tricky, if not impossible.
Gerry Cohen, former special counsel to the General Assembly, said in a Twitter thread that holding a Nov. 6 congressional primary and a January general election for Congress probably wouldn’t be feasible. Cohen tweeted there wouldn’t be time for recounts of a congressional primary, a state canvass, or primary contests of the results. He also noted that, under this schedule, unaffiliated overseas voters may not be able to get primary ballots by mail from the party they choose in time to cast ballots.
Cohen said he sees only two legal and workable solutions: Draw new maps for the 2020 election cycle or hold a special election in January with party executive committees — rather than primary voters — nominating candidates.