Commentary, Defending Democracy, News

Republicans try a double “Hail Mary” in state gerrymandering case

Not that it comes as much of a surprise, but North Carolina Republican leaders have resorted to filing another “Hail Mary” delaying motion in the anti-gerrymandering case of Common Cause v. Lewis. As you may recall, Common Cause v. Lewis is the state court action which challenges the constitutionality of state legislative maps under the state constitution that Republicans admittedly gerrymandered for partisan purposes. It is different from the cases of League of Women Voters of North Carolina v. Rucho and Rucho v. Common Cause described here earlier today, which deal with the state’s gerrymandered congressional map.

Being a case that deals exclusively with state matters, Common Cause v. Lewis was, appropriately, filed in state court. This fact, however, scares the you-know-what out of Republicans due to their concern that state court judges — most notably the state Supreme Court — may well prove receptive to the argument that partisan gerrymandering of the kind that has been inflicted on North Carolina voters is unconstitutional. State judges in Pennsylvania recently took such a position in a similar case.

Faced with the prospect of losing their gerrymandered state legislative maps in state court, Republican defendants in the case have been flailing wildly to avoid or at least delay such an outcome. Recently, they sought to remove the matter to federal court, but that effort was quickly swatted down by Judge Louise Flanagan, who sent the matter back to state court. Now, however, Republicans are trying another absurd delaying tactic.

Yesterday, GOP lawyer Phil Strach (the husband of state elections board executive director Kim Strach) filed a motion in federal court seeking an additional delay on the grounds that the the court’s remand order is subject to an automatic 30 day stay. In their response filed earlier today, lawyers for the plaintiffs described the GOP motion as “baseless” and a “transparent effort to pile delay upon delay.” This is from the plaintiffs’ brief:

Undeterred by this Court’s rejection of their baseless removal, Legislative Defendants have now filed an equally baseless motion seeking to bar the clerk of this Court from mailing a certified copy of the Court’s remand order to the state court for 30 days. But, as Legislative Defendants would have learned had they called to ask, the clerk’s office already mailed the certified remand order before Legislative Defendants filed the instant motion. As Legislative Defendants themselves acknowledge, this means the state court has already regained jurisdiction over this case and can proceed immediately, and Legislative Defendants’ motion is thus moot. Beyond that, the 30-day automatic stay under Rule 62(a) does not apply here for multiple other reasons, including that this case is exempt from Rule 62(a)’s automatic stay because Plaintiffs seek injunctive relief, and Rule 62(a) does not apply to remand orders in any event.

Legislative Defendants’ motion is nothing more than a transparent effort to pile delay on delay. Plaintiffs respectfully request that the Court deny the motion immediately and award such further relief as the Court deems necessary to deter any further gamesmanship by Legislative Defendants to stall state-court proceedings in this case.

The ruling on the motion will, of course, come down to the federal court’s interpretation and application of some rather esoteric rules of civil procedure, but at its core, what this dispute is really about is a desperate GOP attempt to delay the case at all costs in the hope that they can run out the clock on the state court challenge and preserve their gerrymandered maps for another election in 2020.

Let’s hope the federal court quickly sees the scheme for what it is.

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