With just five weeks to go until congressional candidate filing opens for the 2020 election, a three-judge panel is considering throwing the 2016 congressional electorate map out and ordering new districts.
The move would be a bold one from a state court given upcoming election deadlines, but the plaintiffs in Harper v. Lewis argued Thursday that the harm North Carolina voters would suffer if they had to vote under that map would be too great not to act.
“Legislative defendants in their brief do say one thing that plaintiffs agree with,” said attorney Stanton Jones at the hearing for a preliminary injunction. “They say North Carolina’s voters deserve better, and they do. They deserve better than these maps. They deserve better than being treated like pawns in some cynical, partisan game.”
The plaintiffs argued that it is exceedingly clear that the 2016 congressional map is an extreme partisan gerrymander — legislators themselves admitted it and adopted specific partisan criteria to draw the plan — and that based on the ruling in Common Cause v. Lewis, it violates the North Carolina Constitution.
Common Cause v. Lewis is a separate partisan gerrymandering case in which the same three-judge panel in Harper — Judges Paul Ridgeway, Alma Hinton and Joseph Crosswhite — struck down the 2017 legislative maps because they unfairly disadvantaged Democratic voters. They are still reviewing remedial maps to decide if they pass muster.
Harper is a “totally different” case, but poses the same constitutional violations, according to the plaintiffs. In addition to lawmakers admitting the 2016 plan is a partisan gerrymander, there is a robust record in the federal court from previous litigation that outlines the facts of most of the case.
Kate McKnight, an attorney for the legislative defendants argued that the plaintiffs delayed in filing the lawsuit and that the election deadline is too tight, so a preliminary injunction is “categorically unavailable.”
“No court has done what plaintiffs are asking you to do, no matter how they slice the arguments, no matter how they slice the cases,” she said.
She said that the plaintiffs could not point to a single case where a court allowed a preliminary injunction so close to an election because of the serious disruption it would cause.
When Judge Ridgeway asked about the extent to which the underlying federal record would be available and help to expedite the case, McKnight contended that it was not substantial enough to make a ruling on.
Similarly, John Branch, an attorney for intervenors in the case — three Congressional incumbents in the next election — argued that the 2020 election had already started. He said his clients have spent time and money campaigning in their respective districts and that tossing the map out now would harm them and confuse their voters.
“There’s a reason why court after court this late in the election cycle has refused to allow injunctions,” he said.
In an unusual turn at the hearing, Special Deputy Attorney General Paul Cox said the State Board of Elections’ position on the matter was that an injunction would be appropriate in the case. He told the court that when the law is applied to the underlying facts of the case, they believe it will show the 2016 congressional map violates the state constitution.
Katelyn Love, general counsel for the State Board, said members did not decide on a stance at a previous closed session meeting, but rather the Attorney General’s Office represents them. Neither the State Board nor its representation took a stance in the Common Cause v. Lewis case, and in the previous Rucho v. Common Cause case, their stance was in line with the legislative defendants’.
Cox urged the court to move quickly, noting the State Board’s drop dead deadline for new districts would be Dec. 15, barring any complications.
The three-judge panel took arguments under advisement, but Ridgeway noted that the parties should be hearing from them “shortly,” given the time sensitive nature of the case.