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New briefs at U.S. Supreme Court filed in pending gerrymandering case over remedial special election

The U.S. Supreme Court’s recent decision that two congressional districts in North Carolina were racially gerrymandered prompted the state to file a brief instructing the court on how to proceed with another pending redistricting case.

North Carolina v. Covington has been distributed for conference at the highest court three times. It is on appeal from a lower court that found Republican lawmakers “enacted nine state senate districts as majority-black districts where previously none of the state’s senate districts were majority-black, and 23 majority-black state house districts where previously only 10 of those districts were majority-black.”

The lower court ordered the state to redraw 28 racially gerrymandered state House and Senate districts by March 15 and hold a special primary and general election this fall. The U.S. Supreme Court, however, halted that remedy while it reviews the appeal request.

Now, the state is claiming in a new brief filed last week that regardless of how the Supreme Court chooses to resolve Covington, it can’t force special elections because of “an extraordinarily expedited schedule would impose massive costs on the state fisc and inflict untold harms to state sovereignty.”

The “state fisc” is the state treasury.

“More to the point, nothing in the Cooper decision addresses the appropriate remedies for racial gerrymandering violations, and so nothing in that decision answers the questions presented in the second appeal,” the document states.

The state also argues that the lower court that ordered the special elections did not have jurisdiction to do so.

In a response to the state’s supplemental brief, attorneys for the appellees in Covington filed a response this week that states the highest court should not rely on the state’s “unsupported assertions” about the special elections. It also notes that the state requested the delay in the first place.

“Whether or not a special election in November 2017 is still possible is a matter for the court below to address in the first instance,” the response brief states. “North Carolina law expressly provides that two weeks is sufficient for the legislature to remedy defects in a redistricting plan.”

The brief states the lower court is in a much better position than the Supreme Court to evaluate the relevant timelines.

“Thus, if this Court does not summarily affirm the remedial order, it should remand with instructions that the court below should quickly determine the feasibility of holding special elections in November 2017, and, if that is no longer possible, to implement a remedy such that the voters of North Carolina do not have to live and vote in unconstitutional districts any longer than is absolutely necessary,” it adds.

Attorneys argued in the response that the state’s arguments are disingenuous at best.

“In reality, this appears to be yet another tactical ploy for still further delay such that Appellants might even be excused from implementing a remedy in time for the regularly scheduled 2018 elections,” the brief states.

Depending on the Supreme Court’s action in the case, it could be that it isn’t briefed or argued until late 2017 or early 2018 and then it would be possible a decision wouldn’t be handed down until the end of June in 2018.

“At that point, Appellants would no doubt once again claim it would be ‘exceedingly difficult’ and impose ‘massive costs’ on them to put a remedy in place in time for the 2018 elections, just as they did in successfully opposing a remedy in time for the 2016 elections,” the document states. “Appellants hope to simply run out the clock and win by default.”

The rest of both briefs argue about whether or not the decision in Cooper answers the merit questions in Covington.

You can read the state’s brief here and the response brief here.

The Southern Coalition for Social Justice, along with Poyner Spruill LLP and Jenner & Block LLP represent the appellees in Covington. Ogletree, Deakins, Nash Smoak & Stewart, P.C., and Kirkland & Ellis LLP represent the state.

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