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U.S. Supreme Court affirms racially gerrymandered legislative districts, vacates remedial special elections

The U.S. Supreme Court affirmed Monday that 28 state House and Senate districts in North Carolina were racially gerrymandered but vacated the special 2017 elections that a lower court ordered as a remedy.

The court’s three-page order (beginning on Page 10) on North Carolina v. Covington states that the District Court that ordered the remedial special elections didn’t undertake the right analysis in the case and instead addressed the balance of equities in only the most cursory fashion.

“As noted above, the court simply announced that ‘[w]hile special elections have costs,’ those unspecified costs ‘pale in comparison’ to the prospect that citizens will be ‘represented by legislators elected pursuant to a racial gerrymander,'” the order states. “That minimal reasoning would appear to justify a special election in every racial-gerrymandering case — a result clearly at odds with our demand for careful case-specific analysis. For that reason, we cannot have confidence that the court adequately grappled with the interests on both sides of the remedial question before us. And because the District Court’s discretion ‘was barely exercised here,’ its order provides no meaningful basis for even deferential review.”

The court had put the lower court’s remedy on hold while it reviewed Covington. Both parties wrote briefs in the last two weeks about whether justices should still order the special elections.

The decision today by the highest court was unanimous and puts the matter of a special election back in the hands of the lower court. It comes two weeks after the court found two of the states U.S. Congressional districts to also be racially gerrymandered.

“The U.S. Supreme Court has finally and emphatically confirmed what we’ve known for years — that many of North Carolina’s state legislative districts are unconstitutional racial gerrymanders,” said Anita Earls, Executive Director of the Southern Coalition for Social Justice. “The order reaffirms that our clients, and the voters of this state, are entitled to have fair legislative districts that do not discriminate against voters based on their race.”

With the stay lifted and the case sent back to North Carolina’s Middle District Court, that court will likely re-establish timelines for drawing new districts and holding state legislative elections. You can read its previous order here.

“The court previously called for holding elections later this year in newly drawn districts,” Earls said. “We think there is still time to implement special elections in the impacted districts, and we will do everything we can to make sure that happens. Many North Carolinians have been participating in unfair elections in racially gerrymandered districts for far too long. It’s time to fix this problem.”

Rick Hasen, of Election Law Blog, wrote in an analysis of today’s decision that the lower court could conduct a new hearing and issue a more nuanced order that still puts special elections in place for 2017.

“That will be much harder, now that we are in the middle of 2017, but it is not impossible,” he wrote. “If the lower court orders it, North Carolina may be back before the Supreme Court again seeking a new stay (full employment for NC election lawyers continues!).”

Gov. Roy Cooper responded to the news.

“Whether the election is November 2018 or earlier, redrawing the districts is good for our democracy by leveling the playing field for free and fair elections,” he said. “The people should be able to choose their representatives in competitive districts instead of the representatives being able to choose the people in lopsided, partisan districts.”

Common Cause North Carolina applauded the Supreme Court for showing again that racial gerrymandering is unconstitutional and unacceptable.

“However, we have seen Republican legislative leaders respond to previous court rulings against their racial gerrymandering by then brazenly gerrymandering along partisan lines with similar effect — creating voting districts that continue to deprive North Carolinians of a voice in choosing their representatives,” said Executive Director Bob Phillips. “We are hopeful that, like racial gerrymandering, the federal courts will ultimately ban partisan gerrymandering.”

Common Cause is among the plaintiffs in a separate lawsuit challenging the constitutionality of partisan gerrymandering in North Carolina. That trial is set to begin on June 26 in the federal Middle District court in Greensboro.

This is a developing story and will change as updates are made available. Check back for more details.

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