Redistricting challengers respond to state’s request for SCOTUS emergency stay

Saying that the state manufactured its own “crisis” by first drafting blatantly unconstitutional voting maps and then moving up the primary elections from May to March while those maps were being challenged in court, the challengers to Congressional Districts 1 and 12 today asked the U.S. Supreme Court to deny the state’s request for an emergency stay of the federal court order requiring new maps by February 19.

Here’s an excerpt from the papers filed just a short while ago:

This application for a stay comes before the Court on what the district court below found to be a “textbook” example of racial gerrymandering.  It’s an apt description. The errors that led North Carolina to draw Congressional Districts 1 and 12 as far-flung racial archipelagos using a mechanical racial quota are those described at length in the first and latest chapters of the Court’s racial gerrymandering jurisprudence.

In this case, the district court was confronted with two bizarrely shaped districts that were drawn using a “nonnegotiable,” mechanical racial quota in a misguided attempt to comply with the VRA.  The present stay application itself makes clear how the State of North Carolina  went so badly astray. Premised on a fundamental misconstruction of Bartlett v. Strickland,  the State believed that it was required to maximize the number of majority-minority districts, and that doing so would inoculate the State from liability under the VRA. But the VRA is
designed to ameliorate and dissipate racial balkanization, not perpetuate it.  The State compounded its error by seeking to comply with the VRA using a numerical racial threshold unfounded in any evidence.

In a thorough and, indeed, exhaustive opinion, the district court laid bare the consequences of the State’s errors, detailing at length the mountain of evidence establishing that race was the predominant factor behind CDs 1 and 12, and the utter dearth of justification for the State’s predominant use of race.

Respondents David Harris and Christine Bowser (residents of the two districts at issue here)—and every other voter in CDs 1 and 12—have already been subjected to two elections under the unconstitutional enacted plan. The State’s
improper use of race to sort voters by the color of their skin has violated the Fourteenth Amendment rights of millions of North Carolina citizens.

Applicants pronounce themselves in no hurry to remedy this state of affairs. Rather, Applicants ask the Court to delay implementation of a remedy until 2018. In other words, Applicants seek the Court’s leave to use an unconstitutional map for two years from the district court’s final judgment, and five years after Respondents filed suit, and to allow North Carolina to utilize an unconstitutional congressional districting plan for nearly the entirety of the 2010s.

This is, to put it mildly, an extraordinary request. Applicants are unable to muster compelling arguments in support of that request. The factors considered by the Court in assessing a motion to stay a final judgment cut strongly against Applicants, and the balance of harms tips decidedly in Respondents’ favor.

Applicants have little likelihood of success on the merits. Perhaps recognizing that fact, Applicants do not even attempt to address the vast majority of the evidence the district court relied on to support its ultimate holdings. Indeed, the application does not so much as mention the stark and compelling direct evidence of the General Assembly’s racial motives. The district court’s factual findings are subject to the deferential “clear error” standard of review,  and the district court’s conclusions that race predominated and that the use of race was not narrowly tailored are amply supported by the evidence.

Once Applicants’ half-hearted arguments as to the merits are set to one side, it becomes readily apparent that the true premise of Applicants’ Motion is that the Court should stay the final judgment because it would be easier and less costly for the State to run the 2016 election under an unconstitutional map. Perhaps.

But the harm Respondents and other residents of CDs 1 and 12 will irrefutably suffer if the stay is granted and the Court thereafter affirms on the merits vastly outweighs the administrative inconvenience and additional cost the State will incur if the primary is delayed to facilitate the implementation of a remedial map. This is particularly true here because the State is itself responsible for the present “emergency.” For more than 100 years, North Carolina has held its congressional primary election no earlier than May. Knowing full well that the district court might strike down the enacted plan, Governor Patrick McCrory signed a bill passed by the General Assembly that accelerated the primary election from May to mid-March. He did so mere weeks before the trial in this matter commenced. It was hardly coincidence. The State cannot lock into place an unconstitutional redistricting map by manufacturing an artificial “crisis.”

Read the full response here.


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