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Lawmakers trying to remove new partisan gerrymandering case from state court

North Carolina Republican legislative defendants have asked for a federal court to remove a partisan gerrymandering case over the 2016 Congressional map from the state courts.

A court document filed Monday alleges there is a “colorable conflict” between lawmakers’ federal duties under the equal rights act and the alleged state law duties. It was filed in the U.S. District Court for the Eastern District of North Carolina.

Congressional voters who live in districts alleged to have been gerrymandered filed a lawsuit a few weeks ago calling for a three-judge panel to enjoin the 2016 map because of the unconstitutional practice of drawing districts for extreme partisan gain. The suit makes claims under state law following a separate, successful partisan gerrymandering lawsuit over legislative districts.

One of the conflicts lawmakers allege arises out of the state lawsuit is because plaintiffs’ challenged a Congressional district that satisfies the state’s obligations under the Voting Rights Act and they demand the racial composition of the district be dramatically altered, according to the document filed Monday.

Another conflict arises between the plaintiffs’ asserted state-law theories and the legislative defendants’ obligations under federal law because the relief sought would require intentionally dismantling a “crossover” district, which, the document states, would violate an equal-protection prohibition.

The document also states that the plaintiffs’ requested relief in their lawsuit would require “affirmative cooperation” from some agent of the state, something lawmakers can refuse.

In another document, attorney Phil Strach for the legislative defendants argues that the Common Cause v. Lewis case — the state partisan gerrymandering case over legislative districts — is not related to the case in question, Harper v. Lewis, because they involve challenges to different redistricting plans.

He cites a case over President Donald Trump’s federal tax returns and New York tax returns where a court held the two were not related.

“This is substantially similar to the difference between legislative and congressional redistricting plans,” states the court document. “In refusing to grant the related-case designation, the Court noted that the party requesting the related-case designation ‘bears the burden of showing that the cases are related.’ And that the burden ‘is heavy as random assignment of cases is essential to the public’s confidence in an impartial judiciary.’

“Plaintiffs’ cannot meet that burden here, and the Court should follow the Court’s reasoning in Trump v. Comm. On Ways & Means and likewise refuse to designate these cases as related.”

Chief Judge Terrence W. Boyle, a Ronald Reagan appointee, has been assigned to preside over the case. If he decides to remove the case from Wake County Superior Court, it would likely mark the end of congressional partisan gerrymandering litigation because of the U.S. Supreme Court decision that it is a nonjusticiable issue.

The three-judge panel presiding over the state lawsuit is set to hear arguments over a preliminary injunction next week.

The plaintiffs have not yet responded to the legislative defendant’s request to remove the case from state court. They made the same request in Common Cause v. Lewis, and it was denied by the federal court. Read the new court documents below.



Notice of Removal Harver v Lewis (Text)



Harper v Lewis Response (Text)

One Comment


  1. George Greene

    October 15, 2019 at 2:02 pm

    We’re not trying to show that anything is related. The congressional districts are in violation of the state constitution independent of all other considerations. Defendants’ claims about the federal voting rights act are completely irrelevant since it is obviously possible to draw different maps while still complying with the voting rights act.

    The precedent that actually needs to be followed is laughing this out of court on the grounds that defendants themselves have previously pleaded no federal issues with these maps.

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