Courts & the Law, News

U.S. Supreme Court agrees to take on partisan gerrymandering in Wisconsin case that could set standards across country

The U.S. Supreme Court announced today that it would hear a partisan gerrymandering case out of Wisconsin that has the potential to affect about one-third of the maps drawn for Congress and state legislatures across the country.

It’s a case North Carolinians are keeping a close eye on, since a similar court battle is brewing here.

Gill v. Whitford is an appeal of a lower court’s order for the Wisconsin Legislature to redraw the state assembly map that the court struck down as an unconstitutional partisan gerrymander by November 1.

A good description of the case can be found on the Brennan Center for Justice website:

Last November, the panel declared that the state house plan adopted by Wisconsin’s Republican-controlled legislature in 2011 was an unconstitutional partisan gerrymander that violated both the Equal Protection Clause and the plaintiffs’ First Amendment freedom of association. The ruling was the first time in over three decades that a federal court invalidated a redistricting plan for partisan bias.

After evaluating the constitutionality of the map with a three-part test, the panel concluded that the map displayed both bad intent and bad effect, citing evidence that the map drawers used special partisan measurements to ensure that the map maximized Republican advantages in assembly seats. Despite Democrats winning a majority of the statewide Assembly vote in 2012 and 2014, Republicans won sixty of the ninety-nine Assembly seats. Wisconsin Republicans dispute the assertion that they intentionally engineered a biased map, arguing that partisan skews in the map reflect a natural geographic advantage they have in redistricting as a result of Democrats clustering in cities while Republicans are spread out more evenly throughout the state. The court, however, said the state’s natural political geography “does not explain adequately the sizeable disparate effect” seen in the previous two election cycles.

The panel, however, denied one of the plaintiffs’ principal requests: to have judges, not lawmakers and the governor, in charge of redrawing the legislative boundaries, stating in its opinion, “it is neither necessary nor appropriate for us to embroil the Court in the Wisconsin Legislature’s deliberations.” The court advised the panel to use the November ruling as a guide in developing a new redistricting plan.

It is likely that the North Carolina partisan gerrymandering case at the U.S. Supreme Court, Harris v. Cooper, won’t be decided until the Wisconsin case is decided.

What is expected to come from the landmark case is a standard that will determine the extent to which lawmakers across the country can consider voters’ political affiliations when drawing district maps.

The court has already, recently struck down racial gerrymandering in North Carolina, where lawmakers are required to draw new maps before holding another election.

You can read more about the major pending partisan gerrymandering cases in North Carolina, Maryland and Wisconsin here. A federal trial in League of Women Voters v. Rucho is set to begin June 26 in Greensboro.

Courts & the Law, News

Gov. Cooper petitions state Court of Appeals to stop elections, ethics merger

After a three-judge panel denied his request yesterday, Gov. Roy Cooper filed a petition and motion asking the state Court of Appeals to temporarily prevent the merging of the State Board of Elections and State Ethics Commission.

Cooper sued legislative leaders over Senate Bill 68, arguing that the structure of the new board created under the law violates the Separation of Powers clause in the Constitution as well as the non-delegation doctrine.

The three-judge panel in Wake County Superior Court dismissed his lawsuit over jurisdictional issues about two weeks ago. Cooper then filed a notice of appeal and asked the same panel to halt creation of the new board pending that appeal — they denied the request.

The same panel ruled in Cooper’s favor in his first lawsuit over the merge, but instead of appealing, lawmakers re-wrote the law and passed a similar bill, SB68, creating a new “bipartisan” board that combines the duties of the Board of Elections and Ethics Commission.

Cooper’s new request of the Court of Appeals is a typical next step in the appeals process.

In the document, he argues that the panel’s decision dismissing the lawsuit was wrong and without explanation.

“As detailed below, the panel’s decision contravenes more than 100 years of settled North Carolina jurisprudence holding that courts have a duty to resolve constitutional challenges arising from what a statute allows, not simply how that statute is actually being exercised. Moreover, it contradicts the same panel’s ruling in Cooper I, an almost identical case it decided just a few months earlier.

Allowing the [three-judge panel’s] Order to stand would have grave consequences for the State’s constitutional system of checks and balances and would render the separation of powers clause of our constitution nugatory. Put simply, if the judicial branch of government does not have subject matter jurisdiction to decide whether a statute allows the legislative branch to encroach on the powers of the executive branch, then the constitutional restraints on legislative power will be unenforceable.”

Cooper argues in the document that if the merge is not put on hold pending his appeal, there will be substantial harm.

“However, if the Act is allowed to continue to have effect during the Governor’s appeal, the unconstitutionally structured New State Board will be in place for the 2017 election cycle and, most likely, the 2018 election cycle. As a result, if the Act is ultimately found to be unconstitutional, for at least two election cycles the Governor will have suffered the constitutional harm of the General Assembly — through the Act — preventing him from his core duty to ensure faithful execution of the State’s elections and ethics laws.”

Courts & the Law, News

U.S. Supreme Court sides with legislators in racial gerrymandering debate, declines to speed up process

The U.S. Supreme Court has denied a request to speed up the process for which a lower court can take over the most recent North Carolina racial gerrymandering case.

The order in North Carolina v. Covington, which does not state a reason for the denial, was posted late Thursday.

Not long after, Senate President Pro Tem Phil Berger bragged about it in two Tweets.

“#BREAKING: Pleased #SCOTUS rejected latest step in left’s scheme to force a special #NCGA election in 2017, nullify 2016 votes #NCPOL (1/2),” he stated. “#NCGA stands ready, willing to enact new redistricting plan in time for already scheduled 2018 elections. #NCPOL (2/2)”

The Supreme Court affirmed last week the lower court’s finding that 28 state House and Senate legislative districts were unconstitutionally racially gerrymandered. It sent back to the lower court for further proceedings an order for special elections as a remedy to the violation.

Attorneys for Sandra Little Covington, et. al., had requested the highest court expedite the process at which it transfers jurisdiction back to the lower court, which would both direct legislators in creating new maps and decide whether special elections would be held this year or not.

They said legislators were trying to win by default by running out the clock with delays.

The state of North Carolina agreed to their request, the State Board of Elections took no position and legislators opposed it, saying it wouldn’t be fair and would set bad precedent if they didn’t get the typical 25 days to consider filing for a rehearing of the case, despite making no indication that they would actually do that.

This move means that there likely won’t be time for special elections this year, no matter what the lower court orders.

Gov. Roy Cooper earlier this week called for special elections. Civil rights groups and democracy advocates also gathered at the legislature this week to rally for special elections.

Courts & the Law, News

Three-judge panel denies Gov. Cooper’s request to halt elections, ethics merger pending appeal

A three-judge panel has denied Gov. Roy Cooper’s request to halt a law that merges the State Board of Elections and State Ethics Commission pending his appeal.

The panel dismissed Cooper’s second lawsuit over the law about two weeks ago. He filed a notice of appeal on June 6 and a request to stay the merge pending that appeal.

The judges’ order denying his request does not state a reason, only that they reviewed case documents and other matters of record before coming to their conclusion. You can read the order here.

In his request for the stay, Cooper cited the U.S. Supreme Court’s decision in North Carolina v. Covington — affirming unconstitutional racially gerrymandered legislative districts — as a demonstration of the importance of a stay.

“As to the first ruling, the United States Supreme Court has now summarily affirmed that Defendants were elected as a result of unconstitutional racial gerrymandering,” the document states. “As detailed above, since the complaint in this case was filed, the United States Supreme Court has twice ruled that Defendants engaged in unconstitutional racial gerrymandering.

In light of Defendants’ inability, or unwillingness, to comply with federal and state law relating to voting rights, this Court should stay the effectiveness of the Act until an appellate court can rule on the constitutionality of the challenged statute. At least in the area of elections law and voting rights, recent history has demonstrated that Defendants’ enactments must be carefully scrutinized and squared with the federal and state constitutions.”

The same three-judge panel ruled in Cooper’s favor in his first lawsuit over the merge, but instead of appealing, lawmakers re-wrote the law and passed a similar bill, Senate Bill 68, creating a new “bipartisan” board that combines the duties of the Board of Elections and Ethics Commission.

Neither Cooper nor legislative leaders, Senate President Pro Tem Phil Berger and House Speaker Tim Moore, have commented about the judges’ denial of the stay.

Courts & the Law, News

Parties in racial gerrymandering case battling at U.S. Supreme Court over timing

The U.S. Supreme Court has another decision to make about the most recent North Carolina racial gerrymandering case, this time over expediting jurisdiction to a lower court.

Attorneys for Sandra Little Covington, et. al., asked the highest court to expedite its formal issuance of a mandate, which allows the lower court to direct the General Assembly on what to do next both in terms of drawing new maps to correct the unconstitutional racial gerrymanders and in holding remedial special elections.

The Supreme Court affirmed an order that deems 28 state House and Senate districts unconstitutionally racially gerrymandered but it kicked back to the lower court its order for remedial special elections and said further considerations needed to be made.

Legislative defendants and North Carolina responded separately yesterday to the request to expedite the process — the latter, represented by Attorney General Josh Stein, did not object, while the legislative defendants told the court it would be unfair to cut short the typical 25 days they have to petition for a rehearing.

The State Board of Elections defendants once again took no position on the matter.

The legislative defendants are represented by Paul Clement of Kirkland & Ellis LLP in Washington D.C. and don’t actually indicate in their response that they plan to seek rehearing, just that the court should adhere to the timing provisions set forth in the rules.

“Doing so will not cause any appreciable harm to plaintiffs, as Appellants stand ready and willing to draw new maps on a reasonably expedited schedule, and the district court has already made crystal clear that it intends to resolve the remaining remedial questions expeditiously once it obtains jurisdiction,” the reply states.

Legislative defendants also bring their argument back to the issue of special elections. They say that any order from the lower court to hold a special election this year or next “would flunk any fairly administered equitable balancing test.”

The reply goes into great detail the impossibility of special elections, noting that “any special election ordered at this juncture would inflict enormous adverse consequences.”

“According to plaintiffs’ own calculations during the initial remedial phase of this case — calculations that were based on an exceedingly expeditious timeline that Appellants by no means endorse as realistic — special elections would have been possible only if this Court’s mandate had issued more than a month ago,” the document states. “Even by plaintiffs’ own telling, state law and administrative realities necessitate a bare minimum of 14 days to design and enact a new districting plan; 8 days for a candidate-filing period; 21 days to prepare primary election ballots; 60 days to mail absentee primary election ballots; 21 days to prepare general election ballots; and 60 days to mail absentee general election ballots. Counting backwards from November 7th — the date on which municipal elections are currently scheduled across the State — the mandate would have had to issue no later than May 7th for the State to have enough time to complete the special-election process even on plaintiffs’ exceedingly expedited timeline. And that timeline assumes that the district court could order a special election immediately upon acquiring jurisdiction, a step that would be difficult, if not impossible, to reconcile with this Court’s recent order summarily reversing the district court for ‘address[ing] the balance of equities in only the most cursory fashion.'”

Attorneys for Covington filed their response today and said none of the parties in the case have indicated they intend to seek rehearing, the only reason to hold the mandate for 25 days.

“Rather than offering any real reason the Court should hold the mandates for 25 days, Legislative Appellants spend most of their response arguing the merits of whether a special election can or should take place as a remedy for their racial gerrymandering,” the document states. “Those are arguments that should be directed to the trial court in the first instance.”

Attorneys state in the document that the Supreme Court has recognized the need for the expeditious issuance of its judgments in other redistricting cases and it should do the same in this case.

“Appellees’ position — which they intend to press in the trial court as soon as the trial court regains jurisdiction — is that special elections are necessary, fair, and workable as a remedy for the constitutional violations at issue,” the document states. “Unsurprisingly, the Legislative Defendants do not agree with that position. But this is a debate that should occur in the trial court in the first instance, and there is no reason the mandates should not issue forthwith so that the trial court can begin to evaluate the parties’ arguments about the need for and feasibility of special elections as soon as possible. The Legislative Appellants’ opposition to the Application is simply another attempt to run out the clock on the possibility of a special election remedy, even though it is a possibility this Court explicitly contemplated the district court would weigh upon remand. This Court should reject the Legislative Appellants’ transparent ploy for further delay.”