The redistricting roadmap

By Sharon McCloskey - N.C. Policy Watch

Three separate challenges to North Carolina’s 2011 redistricting plans are pending in state and federal courts here, and each is on a certain path to the U.S. Supreme Court.

Whether they’ll get there in time for any meaningful change to occur ahead of the November elections is less clear though.

One ruling has already forced lawmakers to push back congressional primaries, even though absentee balloting had begun, but the likelihood that similar changes to the election calendar will occur lessens as voting begins in earnest.

And the possibility that the nation’s highest court will render a final verdict on the constitutionality of the state’s plans in time for the general elections in November grows slimmer – though there’s at least one scenario in which that could happen.

Here’s a look at the road ahead.

Where things stand

The state court challenge to the 2011 legislative and congressional voting maps, Dickson v. Rucho, is already headed to the U.S. Supreme Court, after justices here upheld the redistricting plan for a second time this past December and later denied the challengers’ request for reconsideration.

The federal challenge to congressional districts (specifically districts 1 and 12), Harris v. McCrory, continues following the three-judge panel’s ruling in early February that the districts were unconstitutional racial gerrymanders. While the General Assembly then redrew the congressional map to meet the court’s February 18 deadline, the state asked the U.S. Supreme Court to stay the panel’s ruling pending appeal and in advance of the then-scheduled March 15 primaries. The high court denied that request for a stay, and lawmakers have reset congressional primaries for June 7.

The question now before the three-judge panel is whether the new congressional map passes constitutional muster. Legislative leaders directed that new map to be drawn without any consideration of race — an instruction that plan challengers and some legal experts say renders the new voting districts suspect. Those challengers have asked the federal judges to expedite their review of the second map and, if necessary, adopt a new plan of the court’s own making.

And coming up right behind the congressional case is the federal challenge to 25 state legislative districts (nine House and 16 Senate), Covington v. North Carolina – set for a week-long trial before a different three-judge panel beginning April 11. That panel refused in November to stay the March primaries pending consideration of the case, saying only that to do so at that late date would disrupt the election cycle.

The other redistricting case

Challengers to the state legislative districts filed their lawsuit later than the other two cases, following a U.S. Supreme Court decision in Alabama Legislative Black Caucus v. Alabama in which the justices rejected numerical quotas as a means of satisfying the Voting Rights Act.

The issues to be tried in the legislative district case are essentially the same as those addressed in the congressional district lawsuit, with an additional wrinkle involving state constitutional redistricting requirements.

The plaintiffs contend that race was the predominant factor in drawing the challenged districts, each of which had a history of African-American citizens electing their candidates of choice for a number of years.

And their proof will be much the same, relying on public statements by Sen. Bob Rucho and Rep. David Lewis describing the oral directions they gave to Republican redistricting strategist and mapmaker Thomas Hofeller for drawing the maps: Create 50 plus one percent, majority-black districts in numbers proportional to the state’s African American population (approximately 21 percent).

The plan subsequently adopted by lawmakers in 2011 did just that, pulling black voters out of minority districts in which they’d already established electoral control in order to meet a majority quota elsewhere — leaving surrounding district whiter.

Based upon this and other evidence, the panel in the congressional case found that race predominated in the drawing of district lines and declared Districts 1 and 12 unconstitutional racial gerrymanders.

That ruling, while not binding upon the panel in the legislative district case, provides persuasive authority for those judges to follow.

Defendants argue though that, with respect to state legislative districts, compliance with the “whole county” provision of the North Carolina constitution, and not race, drove the drawing of voting lines – pointing to findings by the state Supreme Court in Dickson for support.

Dickson is also not binding on the federal panel, given that it is headed to the U.S. Supreme Court for a final review, where plan challengers will argue that compliance with the Voting Rights Act supersedes compliance with state constitutional requirements.

Path to U.S. Supreme Court

Although the issues raised in each of the redistricting cases are largely the same, the timing of their landing before the U.S. Supreme Court will differ – depending mostly upon how proceedings play out before the lower courts.

The state redistricting case is already on its way, with a petition for review expected to be filed shortly.

The path for the federal cases is longer, as proceedings before the panels are ongoing. When final rulings issue, the losing sides will inevitably seek a stay of any order affecting the election schedule and file an appeal with the U.S. Supreme Court.

Where those cases fall on the election calendar complicates matters.

In the federal legislative district case, for example, any order requiring new districts would come at the earliest after the March primaries.

The question then for the court is whether that order should be stayed, given that the state is farther along in the election process than it was when the congressional districts were ordered to be redrawn.

While as a general proposition courts are hesitant to disrupt elections, there is precedent for doing just that.

In 2002 the North Carolina Supreme Court declared the state legislative map unconstitutional, enjoined its use, and refused to stay its order, forcing the General Assembly to schedule primaries for September that year in advance of a November general election.

Ordinarily cases accepted for review by the high court at this point of the year would be briefed and argued in the fall, or later, with a decision coming sometime in 2017.

There’s at least one scenario though in which the U.S. Supreme Court could resolve the three North Carolina redistricting cases in time for district changes to be in effect for the general election.

On March 21, the high court will hear argument in a Virginia redistricting case challenging the use of a numerical quota in the drawing of a congressional district there.

The justices will decide that case, Wittman v. Personhuballah, before the end of June, when the North Carolina cases will all likely be at the high court for review.

Depending upon how the high court rules, it could also summarily affirm the federal court rulings here sometime over the summer based upon the Wittman decision, without full briefing and oral argument.

And in the state case, the U.S. Supreme Court could accept review again, find for the plan challengers and remand the case back to the state Supreme Court with directions to enter judgment in favor of those challengers, eliminating any further review by the state justices.

The road doesn’t end there, though.

The court would still have to determine whether their ruling comes at a time too far along in the election cycle to order changes in the voting maps.

Stay tuned.

Sharon McCloskey is the courts, law and democracy reporter for N.C. Policy Watch.

By Sharon McCloskey

N.C. Policy Watch

comments powered by Disqus