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Federal judge denies legislators’ attempts to move partisan gerrymandering case from state court

A federal judge ruled against North Carolina lawmakers for a second time this year on their attempts to remove partisan gerrymandering lawsuits from a state court.

Judge Louise Wood Flanagan remanded Harper v. Lewis, a challenge to the 2016 congressional map in North Carolina, to Wake County Superior Court, where a three-judge panel is expected to take up preliminary injunction arguments Thursday.

Flanagan cites several reasons for her decision, among them, the U.S. Supreme Court’s recent ruling that partisan gerrymandering claims are out of the reach of federal courts.

“Federal jurisdiction is doubtful, and remand is necessary, because this case is not justiciable in this court,” she wrote.

The legislative defendants had alleged in their attempt to have the case removed from state court that there was a “colorable conflict” between lawmakers’ federal duties under the equal rights act and the alleged state law duties. Flanagan didn’t agree.

“This court previously expressed doubt over the correctness of this standard, in Common Cause,” she wrote in the order. “Now, after Rucho, the court further doubts whether a partisan gerrymandering claim can be entertained in federal court on the basis of a mere asserted ‘colorable conflict’ between federal law and state law. Rather, the plain language of the statute requires that defendants remove to this court ‘for refusing to do any act on the ground that it would be inconsistent with’ equal protection laws.

“In any event, it remains ‘uncertain and speculative whether the ultimate relief sought in plaintiffs’ complaint in the form of new plans comporting with the North Carolina Consitution would conflict with federal law.'”

The legislative defendants also tried to remove Common Cause v. Rucho from state court, but that effort was unsuccessful. That case, a partisan gerrymandering challenge to the 2017 legislative maps, was successful for the plaintiffs with the same three-judge panel that is presiding over this newer case, Judges Alma Hinton, Paul Ridgeway and Joseph Crosswhite.

Lawmakers have since redrawn those maps in a remedial process, but the panel is still reviewing them to decide if they correct the constitutional errors made previously. If the maps don’t pass muster, the court could ask referee Nathaniel Persily, a Stanford Law Professor, to redraw them.

The three-judge panel is set to hear arguments in Harper v. Lewis at 10 a.m. at Campbell University School of Law. That hearing is open to the public. The plaintiffs in that case have asked the court to enjoin lawmakers from using the congressional map in the 2020 election because it unfairly advantages Republicans.

Interestingly, lawmakers moved a redistricting reform hearing set for Wednesday afternoon to 9 a.m. Thursday, which means it will likely coincide with the lawsuit hearing. The meeting is open to the public and audio will be streamed online.

The agenda for the House redistricting committee meeting states that members will take up three redistricting reform bills, House Bill 69, HB 140 and HB 648. Lawmakers have been in session for 10 months and this is the first hearing set for those redistricting bills.

Below is a description of each of the bills, per the North Carolina Coalition for Lobbying and Government Reform.

House Bill 69 — Nonpartisan Redistricting Commission

  • Not a constitutional amendment, final approval remains with General Assembly
  • 11-person commission made up of voters from a pool nominated by legislative leaders — 4 Democrats, 4 Republicans and 3 not affiliated with either major party. Commissioners shall represent the state’s racial, ethnic, geographic and gender diversity.
  • The commission will hold a total of 21 public hearings both before and after the drawing of the maps, create the maps in a transparent public process and encourage citizen participation.
  • Once the commission completes and approves a redistricting plan, the plan will be sent to the NC General Assembly, which will vote on the maps without altering them. If the NC General Assembly rejects the maps, they must explain why. The Commission will redraw maps and submit them again to the NC General Assembly.

House Bill 140 — The FAIR Act

  • Constitutional amendment—requires 60% support in each house to place it on the ballot. Then, a majority of voters must approve the amendment before it is added to the NC Constitution.
  • Maps will be drawn by legislative staff, with an advisory commission, and NC General Assembly will retain authority over passage of the maps. It does not establish an independent commission.
  • The advisory commission will answer questions from the legislative staff, authorize policies for the release of information related to the redistricting plans, and organize, conduct and summarize 3 public hearings.

House Bill 648 — NC FAIR State and Congressional Districts Act

  • Not a constitutional amendment, final approval remains with General Assembly
  • Creates Independent Redistricting Commission with 16 members—11 voting members and 5 non-voting alternates. 8 members chosen by legislative leadership in both houses, these 8 members chose the final 3.
  • Commission hires a special master to draw at least two sets of maps for the North Carolina General Assembly and US Congressional districts.
  • The Commission shall determine which of the plans drawn by the special master are to be submitted to the NC General Assembly. Members of the NC General Assembly are not precluded from amending the maps or drafting their own.

Read Flanagan’s full court order from Tuesday below.

Harper v. Lewis federal order remand (Text)

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