A three-judge panel has approved remedial legislative districts that were enacted last month after the last ones were found to be an unconstitutional partisan gerrymander. The same panel, though, delivered news a few minutes later that they would require a new congressional map ahead of the 2020 election.
In the Common Cause v. Lewis ruling, the panel stated that lawmakers’ remedial process comported with their court order requiring they use certain redistricting criteria, not use partisan data and conduct redistricting in full public view.
The plaintiffs had objected to only five county-groupings in the House map, but the judges were satisfied with each, so they did not order that any be redrawn by the referee, Stanford Law Professor Nathaniel Persily.
In the Harper v. Lewis ruling, the same panel ruled that the plaintiffs are likely to succeed on the merits of their challenge that the 2016 congressional map in North Carolina is an extreme partisan gerrymander.
“Quite notably in this case, the 2016 congressional districts have already been the subject of years-long litigation in federal court arising from challenges to the districts on partisan gerrymandering grounds,” the order states. “As such, there is a detailed record of both the partisan intent and the intended partisan effects of the 2016 congressional districts drawn with the aid of Dr. Thomas Hofeller and enacted by the General Assembly.”
The judges noted in the order that the loss to the plaintiffs’ fundamental rights will “undoubtedly” be irreparable if congressional elections are allowed to proceed under the 2016 plan.
The legislative defendants in the case argued to the court that they too would suffer harm if the court issued an injunction, but the panel said voters’ rights were more important.
“Simply put, the people of our State will lose the opportunity to participate in congressional elections conducted freely and honestly to ascertain, fairly and truthfully, the will of the people,” the court document states. “The court finds that this specific harm to plaintiffs absent issuance of the injunction outweighs the potential harm to legislative defendants if the injunction is granted.”
The court invited the plaintiffs in Harper to file a motion for summary judgement in the case and noted that it would provide for an expedited schedule so that arguments could be heard prior to the close of the filing period for the 2020 primary election.
The order indicates that a disruption to the election process need not be necessary if the General Assembly acts on its own initiative “and with all due haste” to enact new congressional districts.
The panel said it does not presume to have any authority to compel lawmakers to draw new districts at such an early stage of litigation, but it noted that the General Assembly recently showed it has the capacity to enact new districts in a short amount of time “in a transparent and bipartisan manner.”
If lawmakers don’t move on their own, the court noted it can move the primary date for the congressional elections or all of the state’s 2020 primaries, including for offices other than congressional representatives.
Read both full orders below.