SCOTUS refuses to stay order requiring new congressional districts

2016 congressional map

Just hours after state lawmakers had approved new congressional voting districts yesterday, as required after a three-judge federal panel found the 2011 maps to be unconstitutional radical gerrymanders, the U.S. Supreme Court refused to step into the lawsuit challenging those districts and refused to block enforcement of the panel’s order.

The state’s application to the high court went initially to Chief Justice John Roberts, who then referred it to the full court. Although their ruling comes after the General Assembly had already redrew the congressional districts and thus was to some degree not necessary, the ruling does signal that a majority on the high court believed the 2011 districts to be constitutionally deficient — as there was no indication that the justices were otherwise split 4-4.

According to some, the new map may also be deficient. The federal panel found that state lawmakers used race as the controlling factor when drawing the 2011 maps. Democrats in the General Assembly have been highly critical of the new voting districts, which the Republican majority created without any consideration of race at all. That too is likely a violation of the Voting Rights Act, they say.

Election law expert Rick Hasen agrees, writing that the three-judge panel may reject the new plan as well on that basis.





Redistricting challengers respond to state’s request for SCOTUS emergency stay

Saying that the state manufactured its own “crisis” by first drafting blatantly unconstitutional voting maps and then moving up the primary elections from May to March while those maps were being challenged in court, the challengers to Congressional Districts 1 and 12 today asked the U.S. Supreme Court to deny the state’s request for an emergency stay of the federal court order requiring new maps by February 19.

Here’s an excerpt from the papers filed just a short while ago:

This application for a stay comes before the Court on what the district court below found to be a “textbook” example of racial gerrymandering.  It’s an apt description. The errors that led North Carolina to draw Congressional Districts 1 and 12 as far-flung racial archipelagos using a mechanical racial quota are those described at length in the first and latest chapters of the Court’s racial gerrymandering jurisprudence.

In this case, the district court was confronted with two bizarrely shaped districts that were drawn using a “nonnegotiable,” mechanical racial quota in a misguided attempt to comply with the VRA.  The present stay application itself makes clear how the State of North Carolina  went so badly astray. Premised on a fundamental misconstruction of Bartlett v. Strickland,  the State believed that it was required to maximize the number of majority-minority districts, and that doing so would inoculate the State from liability under the VRA. But the VRA is
designed to ameliorate and dissipate racial balkanization, not perpetuate it.  The State compounded its error by seeking to comply with the VRA using a numerical racial threshold unfounded in any evidence.

In a thorough and, indeed, exhaustive opinion, the district court laid bare the consequences of the State’s errors, detailing at length the mountain of evidence establishing that race was the predominant factor behind CDs 1 and 12, and the utter dearth of justification for the State’s predominant use of race.

Respondents David Harris and Christine Bowser (residents of the two districts at issue here)—and every other voter in CDs 1 and 12—have already been subjected to two elections under the unconstitutional enacted plan. The State’s
improper use of race to sort voters by the color of their skin has violated the Fourteenth Amendment rights of millions of North Carolina citizens.

Applicants pronounce themselves in no hurry to remedy this state of affairs. Rather, Applicants ask the Court to delay implementation of a remedy until 2018. In other words, Applicants seek the Court’s leave to use an unconstitutional map for two years from the district court’s final judgment, and five years after Respondents filed suit, and to allow North Carolina to utilize an unconstitutional congressional districting plan for nearly the entirety of the 2010s.

This is, to put it mildly, an extraordinary request. Applicants are unable to muster compelling arguments in support of that request. The factors considered by the Court in assessing a motion to stay a final judgment cut strongly against Applicants, and the balance of harms tips decidedly in Respondents’ favor.

Applicants have little likelihood of success on the merits. Perhaps recognizing that fact, Applicants do not even attempt to address the vast majority of the evidence the district court relied on to support its ultimate holdings. Indeed, the application does not so much as mention the stark and compelling direct evidence of the General Assembly’s racial motives. The district court’s factual findings are subject to the deferential “clear error” standard of review,  and the district court’s conclusions that race predominated and that the use of race was not narrowly tailored are amply supported by the evidence.

Once Applicants’ half-hearted arguments as to the merits are set to one side, it becomes readily apparent that the true premise of Applicants’ Motion is that the Court should stay the final judgment because it would be easier and less costly for the State to run the 2016 election under an unconstitutional map. Perhaps.

But the harm Respondents and other residents of CDs 1 and 12 will irrefutably suffer if the stay is granted and the Court thereafter affirms on the merits vastly outweighs the administrative inconvenience and additional cost the State will incur if the primary is delayed to facilitate the implementation of a remedial map. This is particularly true here because the State is itself responsible for the present “emergency.” For more than 100 years, North Carolina has held its congressional primary election no earlier than May. Knowing full well that the district court might strike down the enacted plan, Governor Patrick McCrory signed a bill passed by the General Assembly that accelerated the primary election from May to mid-March. He did so mere weeks before the trial in this matter commenced. It was hardly coincidence. The State cannot lock into place an unconstitutional redistricting map by manufacturing an artificial “crisis.”

Read the full response here.



Court of Appeals sends constitutional claims of eugenics victim heirs to three-judge panel

EugenicsIn a 2-1 decision today, the Court of Appeals ruled that heirs of eugenics victims who contend that they were unconstitutionally denied relief under the state’s Eugenics Asexualization and Sterilization Compensation Program must first present their claims to a three-judge panel before seeking appellate review.

The heirs in the three separate cases before the court had all been denied compensation by the Industrial Commission, based upon a provision of the eugenics compensation law that requires victims to have been “alive on June 30, 2013.”

On appeal they argued that the legislature’s distinction between living and deceased victims for purposes of restitution violated constitutional guarantees of equal protection.

In the decision written by Court of Appeals Judge Linda McGee, with Judge Mark Davis joining, the court held that it lacked jurisdiction to hear the claims based upon the 2014 law that required facial constitutional challenges be heard by an appointed three-judge panel.

Noting that the Industrial Commission as an administrative board could not decide constitutional claims, McGee wrote:

The General Assembly, having provided an exclusive means of review of facial challenges to enactments of the General Assembly based upon the North Carolina Constitution or federal law, has thereby precluded review by other means in the first instance.

Judge Chris Dillon dissented, saying that as he understood the three-judge panel law, the heirs’ claims were properly before the Court of Appeals:

I do not believe that [the law] provides that a three-judge panel of our Court considering the appeal be required to remand the facial challenge issue to a three-judge panel of superior court judges before addressing the other issues. Rather, I believe that  . . . the General Assembly was simply providing a procedure whereby a facial challenge would never be left up to a single judge, but always to a panel of jurists.

Unless the cases go up to the state Supreme Court (based upon the dissent) for a review of the scope of the three-judge panel law, they will return to the Industrial Commission for a further remand to a three-judge panel in Wake County.

The Court of Appeals decision is here.

For more about the heir’s claims, read here.



State right to “take” property under the Map Act back at the Supreme Court

The state Supreme Court is hearing argument this morning in a case challenging the Department of Transportation’s right to control land use in areas where it intends to build roads, as set forth in the decades-old Map Act.

Pursuant to that Act, the DOT can file a map with the local register of deeds identifying property where it anticipates building a road and protect that property from development or other action that might improve its value — in effect holding down the purchase price until the DOT is ready to buy.

In Kirby v. DOT, the justices are reviewing a unanimous decision by the state Court of Appeals, holding that DOT had effectively “taken” property through eminent domain when it filed the maps protecting the eastern and western loops of the proposed Northern Beltway in Forsyth County, and owed the owners “just compensation” for that land.

Here’s more from Policy Watch’s report on that decision:

Michael Hendrix had a contract to sell eight of his 24 acres of land at Old Hollow and Germanton Roads in Winston-Salem for more than a million dollars in early 1998. But because the state Department of Transportation had identified that land as lying in the path of a proposed beltway project running east to west just north of the city, the deal died.

Instead, ten years later and with no construction in sight, the DOT made Hendrix an offer that any property owner in right mind would refuse: a non-negotiable $530,700 for all 24 acres. In 2012, though, health issues pushed the former contractor to go back to the agency for a new deal.

Hendrix died from a stroke in November 2013, still waiting for an answer from the DOT.

James and Phyllis Nelson live on two of the nearly eight acres they own on the western side of that proposed Northern Beltway project. They’d planned on developing the remaining property for retirement income. But once the DOT identified that land as lying in the path of the project, the Nelsons couldn’t improve or develop their land.

Instead, they sat by helplessly as DOT put down traverse stakes there, watching as the agency bought out other nearby owners, tore down homes (one burned down) and let others fail into disrepair.

Hendrix and the Nelsons are just a few of the thousands of property owners in North Carolina who’ve fallen victim to a state device known as the “Map Act.”

Pursuant to that Act, the DOT can file a map with the local register of deeds identifying property where it anticipates building a road and protect that property from development or other action that might improve its value — in effect holding down the purchase price until the DOT is ready to buy.

How many years away can that be?

“For as long as it takes North Carolina to get enough money to build the road,” the DOT says in a fact sheet distributed to affected property owners.

The DOT filed its first map along the western loop of the proposed Northern Beltway in 1997, and construction on just one segment of one loop is just now beginning.

In the meantime, property owners there have been fighting for relief from the agency, and in recent years have resorted to lawsuits, traveling up and down the appellate courts in search of help.

Yesterday, they may just have hit pay dirt.

In a unanimous decision with sweeping implications for North Carolina road projects, the state Court of Appeals ruled that DOT had effectively “taken” their property through eminent domain when it filed the maps protecting the eastern and western loops of the proposed beltway and owed the owners “just compensation” for that land.

“It confirms what we have been saying from the beginning — that the state was condemning these people and needed to buy them,” Matthew Bryant, the attorney representing owners in this and other lawsuits, told the Winston-Salem Journal.

“The state will now have to pay those people, and they should have bought them out years ago. They should never have gone through this.”

WRAL is streaming the argument at the high court here.


What Scalia’s death means for the current SCOTUS term (updated)

IMG_0182These things became abundantly clear within hours of the death of U.S. Supreme Justice Antonin Scalia.

President Obama intends to meet his constitutional obligation of filling the vacancy on the court as soon as possible, by naming his choice and sending that candidate to the U.S. Senate for approval.

Republicans in the Senate intend to do everything in their power to block any such appointment, arguing that that should be the prerogative of the next president.

And in the midst of what’s already shaping up to be an historic general election cycle, Americans are about to get a lesson on the critical importance of the presidential judicial appointments power and the impact the Senate’s obstruction of that power has had in recent years.

The President theoretically can make a recess appointment to the high court (former Justice William J. Brennan, Jr., got his start on the court that way), but as Lyle Denniston at SCOTUSblog notes, the Court last term restricted that recess appointment power to the point where the Senate controls what constitutes a “recess.”

And given the already-announced recalcitrance by the leaders of that body to an Obama Supreme Court nominee — especially now — the qualifying recess is unlikely to happen.

In the short term then, what does an eight-justice court mean for cases before the nation’s highest court?

The justices will continue with the term, deciding cases already argued, hearing those set for argument and reviewing new requests for review (likely for argument next term), along with requests for emergency relief — including North Carolina’s pending petition for a stay of last week’s federal order requiring a redrawing of the congressional voting map by Feb. 19.

In cases in which Scalia has already voted but an opinion has not yet been announced, his vote is void and the decision then turns on how the other justices have voted. 

Where there’s a 4-4 split, the justices could let the decision of the lower court from which the appeal arose stand, as Tom Goldstein at SCOTUSblog notes here, “affirmed by an equally divided Court.” Such a decision has no precedential effect, though.

Or they could schedule the case for reargument in the term that begins next October with the hope that a full court could decide the issue at hand.

Plenty of controversial cases remain pending at the high court for decision this term — some already argued — in which a 4-4 split decision is possible. They include abortion rights in Whole Womens Health v. Ellerstedt, affirmative action in Fisher v. University of Texas, redistricting one person one vote in Evenwel v. Abbott, union fees in Friedrichs v. California Teachers Associationdeferred action for immigrant parents (DAPA) in United States v. Texas, and religious exemptions to the Obamacare contraceptive mandate in Zubik v. Burwell.

(For the specific impact predicted in these and other cases, see the New York Times graphic here.)

North Carolina has its own share of controversial cases that will work their way to the Supreme Court — most notably the redistricting cases pending in state and federal court and the voting rights cases before Judge Thomas Schroeder — but none of those are on the high court’s docket for decision this term.

The biggest impact the Scalia vacancy will have on those cases will be on emergency applications for relief from court orders — as in the current federal congressional district case, and possibly in the federal legislative district case, should a similar map-redrafting order — as well as in the voting law case, should Schroeder or the Fourth Circuit on appeal require changes.


(Note: This post has been updated to add as an option for the court this term the rescheduling of split decision cases for reargument next term in the hope that a full court can rule determinatively — as opposed to letting the decision of the court below stand.)