The state of North Carolina has asked the U.S. Supreme Court to halt a federal Court of Appeals opinion that would require legislators to hold a special election this year after legislative district maps were ruled unconstitutional racial gerrymanders.
On Tuesday, Supreme Court Chief Justice John Roberts asked for a response in the case, due Monday.
The emergency application for stay seeks to halt the special election pending an appeal to the Supreme Court and requests an order from the high court before January 11, when the legislature convenes for the long session.
On Election Day, millions of North Carolina voters went to the polls and selected the state legislators who would represent them in the General Assembly for two-year terms in accordance with the North Carolina Constitution. Or so they thought. Just three weeks later, a three-judge federal district court declared that most of those legislators would instead serve only one-year terms, and it ordered the State to hold off-cycle special primary and general elections in 2017. In doing so, the court asserted the extraordinary power to abrogate multiple provisions of the North Carolina Constitution, including the requirement that senators and representatives serve two-year terms, N.C. Const. art. II §8, and the requirement that any candidate be a resident of the district in which she is running for at least one year preceding her election, id. art. II §§6, 7.
The document states that there is plenty of time for the Supreme Court to review the case to ensure that the next regularly scheduled elections occur in districts that “fully comply with the Constitution.”
The choice confronting this Court is therefore a stark one: The Court can allow the district court to dictate that the newly elected state legislators devote the first few weeks of their truncated terms to drawing new maps that may be unnecessary and will be unlikely to comply with this Court’s forthcoming guidance, and run the risk that special elections will occur only to have this Court later rule they were unnecessary. Or the Court can grant a stay and preserve the status quo ex ante so it can review the district court’s merits and remedial decisions at whatever pace it deems optimal and then order relief that fully complies with this Court’s considered views. There is plenty of time for this Court to review the merits and ensure that the next regularly scheduled elections occur in districts that fully comply with the Constitution.
Election Law Blog’s Rick Hasen wrote last week that the petition is unlikely to succeed.
“My guess is that the Court does not issue the stay, especially not a Court of 8 where Justice Kennedy has sided with the liberals in the recent racial gerrymandering cases. But what will be interesting to see is what the state of NC files after Cooper takes office, and if the legislature seeks to file its own papers adverse to the position of the state’s governor and attorney general.”