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Parties in racial gerrymandering case battling at U.S. Supreme Court over timing

The U.S. Supreme Court has another decision to make about the most recent North Carolina racial gerrymandering case, this time over expediting jurisdiction to a lower court.

Attorneys for Sandra Little Covington, et. al., asked the highest court to expedite its formal issuance of a mandate, which allows the lower court to direct the General Assembly on what to do next both in terms of drawing new maps to correct the unconstitutional racial gerrymanders and in holding remedial special elections.

The Supreme Court affirmed an order that deems 28 state House and Senate districts unconstitutionally racially gerrymandered but it kicked back to the lower court its order for remedial special elections and said further considerations needed to be made.

Legislative defendants and North Carolina responded separately yesterday to the request to expedite the process — the latter, represented by Attorney General Josh Stein, did not object, while the legislative defendants told the court it would be unfair to cut short the typical 25 days they have to petition for a rehearing.

The State Board of Elections defendants once again took no position on the matter.

The legislative defendants are represented by Paul Clement of Kirkland & Ellis LLP in Washington D.C. and don’t actually indicate in their response that they plan to seek rehearing, just that the court should adhere to the timing provisions set forth in the rules.

“Doing so will not cause any appreciable harm to plaintiffs, as Appellants stand ready and willing to draw new maps on a reasonably expedited schedule, and the district court has already made crystal clear that it intends to resolve the remaining remedial questions expeditiously once it obtains jurisdiction,” the reply states.

Legislative defendants also bring their argument back to the issue of special elections. They say that any order from the lower court to hold a special election this year or next “would flunk any fairly administered equitable balancing test.”

The reply goes into great detail the impossibility of special elections, noting that “any special election ordered at this juncture would inflict enormous adverse consequences.”

“According to plaintiffs’ own calculations during the initial remedial phase of this case — calculations that were based on an exceedingly expeditious timeline that Appellants by no means endorse as realistic — special elections would have been possible only if this Court’s mandate had issued more than a month ago,” the document states. “Even by plaintiffs’ own telling, state law and administrative realities necessitate a bare minimum of 14 days to design and enact a new districting plan; 8 days for a candidate-filing period; 21 days to prepare primary election ballots; 60 days to mail absentee primary election ballots; 21 days to prepare general election ballots; and 60 days to mail absentee general election ballots. Counting backwards from November 7th — the date on which municipal elections are currently scheduled across the State — the mandate would have had to issue no later than May 7th for the State to have enough time to complete the special-election process even on plaintiffs’ exceedingly expedited timeline. And that timeline assumes that the district court could order a special election immediately upon acquiring jurisdiction, a step that would be difficult, if not impossible, to reconcile with this Court’s recent order summarily reversing the district court for ‘address[ing] the balance of equities in only the most cursory fashion.'”

Attorneys for Covington filed their response today and said none of the parties in the case have indicated they intend to seek rehearing, the only reason to hold the mandate for 25 days.

“Rather than offering any real reason the Court should hold the mandates for 25 days, Legislative Appellants spend most of their response arguing the merits of whether a special election can or should take place as a remedy for their racial gerrymandering,” the document states. “Those are arguments that should be directed to the trial court in the first instance.”

Attorneys state in the document that the Supreme Court has recognized the need for the expeditious issuance of its judgments in other redistricting cases and it should do the same in this case.

“Appellees’ position — which they intend to press in the trial court as soon as the trial court regains jurisdiction — is that special elections are necessary, fair, and workable as a remedy for the constitutional violations at issue,” the document states. “Unsurprisingly, the Legislative Defendants do not agree with that position. But this is a debate that should occur in the trial court in the first instance, and there is no reason the mandates should not issue forthwith so that the trial court can begin to evaluate the parties’ arguments about the need for and feasibility of special elections as soon as possible. The Legislative Appellants’ opposition to the Application is simply another attempt to run out the clock on the possibility of a special election remedy, even though it is a possibility this Court explicitly contemplated the district court would weigh upon remand. This Court should reject the Legislative Appellants’ transparent ploy for further delay.”

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