North Carolina lawmakers could be forced back to the drawing board by a federal court to rework the state’s 2016 congressional map before the November election.
A three-judge panel in the U.S. District Court for the Middle District of North Carolina reaffirmed its decision from January striking down 13 congressional districts as unconstitutional partisan gerrymanders.
“The 2016 Plan’s invidious partisanship runs contrary to the Constitution’s vesting of the power to elect Representatives in ‘the People,'” the 294-page court opinion states.
The same panel had previously declared the 2016 congressional map unconstitutionally gerrymandered in League of Women Voters v. Rucho and Common Cause v. Rucho, but their remedy was put on hold by the U.S. Supreme Court. The cases were eventually sent back down to the panel for consideration after the Supreme Court released opinions in two other similar partisan gerrymandering cases: Gill v. Whitford, a challenge to Republican partisan gerrymandering in Wisconsin, and Benisek v. Lamone, a challenge to a Democratic partisan gerrymander in Maryland.
The Monday opinion was written by Judge James Wynn, a President Barack Obama appointee, and he was joined by Judge Earl Britt, appointed by Jimmy Carter, and partially by Judge William Osteen, a George W. Bush appointee. Osteen wrote a separate 27-page opinion concurring in part with his colleagues and dissenting in part.
They judges held overall that lawmakers intentionally ensured that representatives from one party have a disproportionate voice in Congress, therefore restricting the speech of some elements of society.
“Put differently, by intentionally seeking to entrench a favored party in power and make it difficult — if not impossible — for candidates of parties supporting disfavored viewpoints to prevail, partisan gerrymandering ‘seeks not to advance a legitimate regulatory goal, but to suppress unpopular ideas or information or manipulate the public debate through coercion rather than persuasion,'” the opinion states.
In considering a remedy, the court noted it could order the General Assembly to draw a new map and then hold a general election without a primary. Since the state abolished primaries for several partisan state offices, the opinion states lawmakers have “concluded that, for at least some partisan offices, primary elections are unnecessary.”
“Therefore, were this Court to order the State to conduct a general congressional election without holding primary elections, that would be consistent with the General Assembly’s policy preference as to at least some offices,” the opinion states.
The judges note in the document that absent unusual circumstances, they would probably be forced to use the 2016 congressional plan in this year’s election so as not to disrupt the state’s election machinery already in place.
“However, this case presents unusual circumstances,” they wrote.
They cited an injunction from state courts indefinitely enjoining the State Board of Elections and Ethics Enforcement from preparing ballots as the reason they wouldn’t rule out enjoining the state from using the unconstitutional maps in the November election.
Another viable option besides holding an election without a primary would be to have the state hold a primary in November and then conduct a general election sometime before the new Congress is seated in January 2019, according to the opinion.
All parties in the case were instructed to file briefs by the end of the day Friday discussing whether or not the court should enjoin the state from conducting any more elections with the unconstitutional map. Regardless of the decision, the state is enjoined after the November election from ever using the map again.
The judges are also still deciding whether to give lawmakers another crack at drawing new districts. They took lawmakers to task for delay tactics, their response in redrawing legislative maps in the racial gerrymandering case Covington and their continued efforts to enact election-related legislation that courts continue to strike down.
“We continue to lament that North Carolina voters now have been deprived of a constitutional congressional districting plan — and, therefore, constitutional representation in Congress — for six years and three election cycles,” the opinion states. “To the extent allowing the General Assembly another opportunity to draw a remedial plan would further delay electing Representatives under a constitutional districting plan, that delay weighs heavily against giving the General Assembly another such opportunity.”
The judges instructed the parties to also address if they should allow lawmakers another bite at the apple in their briefs due Friday. Given their uncertainty, they also intend to appoint a special master and asked the parties to confer and give them a list of acceptable names by Wednesday.
It is anticipated that the court’s decision will be appealed to the Supreme Court, and could be heard as early as its October term. If the 4-4 ideologically split court deadlocked, the lower court’s order would remain and their remedy would stick.
See Monday’s full opinion below.