In case you missed it, North Carolina Republican leaders at the General Assembly are trying what can only be described as a “Hail Mary” legal ploy in an effort to derail the recent state court lawsuit brought by Common Cause and the state Democratic Party challenging the state’s egregiously gerrymandered state legislative maps.
As veteran court watcher Mark Joseph Stern reported yesterday at Slate.com, Republicans took action last last week to remove the lawsuit to federal court in an obvious effort to prevent it from wending its way to the North Carolina Supreme Court — a venue that it views as likely hostile to partisan gerrymandering.
Happily, as Stern explains in detail, there is no good reason for the federal court to accept jurisdiction and it ought to punt the matter back in short order. This is from “The North Carolina GOP’s Latest Ploy to Save Its Partisan Gerrymander Is Almost Literally Unbelievable”:
Like many state constitutions, the North Carolina Constitution protects voting rights more robustly than the U.S. Constitution. Its Equal Protection Clause guarantees all citizens “substantially equal voting power” and “the right to vote on equal terms.” And its Election Clause commands that “[a]ll elections shall be free”—that is, not rigged by lawmakers to predetermine the outcome. The Pennsylvania Supreme Court recently ruled that a similar provision in its own state constitution outlawed partisan gerrymandering, explaining that “a diluted vote is not an equal vote.” It seems quite likely that the North Carolina Supreme Court, led by Earls, will reach the same conclusion after hearing this lawsuit.
GOP lawmakers are terrified of such a ruling, since it would threaten the legislative majority they entrenched by diluting Democratic votes. So after Common Cause and the North Carolina Democratic Party filed their lawsuit in November, the General Assembly—which has given itself the power to defend its gerrymander in court—did not defend its map on the merits. Instead, it filed a motion to remove the case to federal court. Federal judges are not typically permitted to hear cases that exclusively involve interpretation of state law. The General Assembly, however, argued that the plaintiffs are asking the state to violate the Voting Rights Act, the 14th Amendment’s Equal Protection Clause, and the 15th Amendment’s bar on race-based voting restrictions. It asserts that because the relief sought would infringe upon federal law, the federal judiciary may snatch the case out of state court.
After explaining some of the desperation/”reasoning” behind the GOP move and the fact that Republicans have repeatedly argued in the past that federal courts should not hear gerrymandering cases, Stern goes on to offer a scathing assessment of the arguments behind their effort to remove the case.
Here’s the conclusion:
It’s easy to see what’s going on here. The General Assembly must know its arguments are meritless. It recognizes that, at some point, the North Carolina Supreme Court will probably invalidate its gerrymander. So it is trying to put off that decision for as long as possible by using the federal judiciary to gum up the works.
Republicans’ motion for removal has been assigned to U.S. District Judge Louise W. Flanagan, a moderate George W. Bush appointee. She should reject it as quickly as possible. North Carolina voters deserve fair districts in 2020, and there is no legal impediment to the state Supreme Court creating them before the next election. The General Assembly’s latest machinations are not sly or shrewd or clever. They are just pathetic.
It should be noted that Republican lawyers tried the same tactic in Pennsylvania when a lawsuit was brought in that state’s courts attacking the legislative gerrymandering there. It was not successful.