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Federal Court Throws Out North Carolina’s Congressional Districts, Again

Federal Court Throws Out North Carolina’s Congressional Districts, Again

A panel of three federal judges again announced North Carolina’s congressional district map to be unconstitutional, ruling on Monday that it was gerrymandered to unfairly favor Republican candidates.
The decision, which may have compelling implications for control of Congress after the midterm elections, is likely to be appealed to the United States Supreme Court, which for the moment is steadily split on ideological lines without a ninth justice to tip the balance.
Though North Carolina’s voters tend to divide about steadily between the two parties, Republicans currently hold 10 of the state’s 13 House seats. A redrawn district map may put more of the seats within Democrats’ reach.
The three judges had ruled unanimously in January that the state’s House map violated the First and 14th Amendments by unfairly giving one group of voters — Republicans — a larger voice than others in choosing representatives.
But the Supreme Court declined in June to hear an appeal in the case, sending it back for reconsideration under guidelines it had set out in a different case about who had legal standing to challenge the map.
In a lengthy ruling on Monday, the panel reached largely the same conclusion that it had in January. And the judges agreed that the plaintiffs in the case — voting-rights advocacy groups and residents of each of North Carolina’s 13 districts — had standing to bring the suit.
The judges left open the probability that they could order new maps to be drawn before the 2018 election, either by the North Carolina General Assembly or by a special master appointed by the court.
The ruling sets up a delicate tactical question for the Supreme Court, which has never ruled a partisan gerrymander to be unconstitutional, passing up three separate opportunities to do so in its last term. With the retirement of Justice Anthony M. Kennedy at the end of July, the court is now divided between four conservatives who have expressed skepticism about the court’s capability to tinker with political maps, and four more liberal justices who have argued that it has that capability.
A 4-to-4 vote would leave the lower court’s ruling intact.
The swing vote on the issue would probably be Chief Justice John G. Roberts Jr., whom many voting-rights advocates see as the only prospect on the court — and a slim one, at that — for a fifth vote to outlaw partisan gerrymanders.
Of the welter of cases on the issue that have moved through the federal courts in recent years, the North Carolina case is perhaps the starkest. The state’s Republican-dominated legislature redrew the House map in 2016 under orders from a various federal court, which had ruled that some districts drawn in 2011 were racially gerrymandered, a practice the Supreme Court has already ruled unconstitutional.
The 2011 map had turned a 7-to-6 Democratic edge in the state’s House delegation to a 9-to-4 Republican one. The redrawn map in 2016 — the one at problem now — produced a 10-to-3 ratio, but the legislature explicitly said that it had been drawn not to disadvantage minority groups, but to hurt Democrats.
“I propose that we draw the maps to give a partisan benefit to 10 Republicans and three Democrats, because I do not trust it’s probable to draw a map with 11 Republicans and two Democrats,” David R. Lewis, a North Carolina state representative who assisted lead the remapping, said in 2016.
The three-judge panel ruled in January, though, that the change in motive did not make the map acceptable. It found that the legislature’s intent was “to ‘subordinate’ the interests of non-Republican voters and ‘entrench’ Republican domination of the state’s congressional delegation,” a view they reaffirmed on Monday.
The chief author of the panel’s latest opinion, Judge James J. Wynn of the United States Court of Appeals for the Fourth Circuit, said the legislature’s “invidious partisanship runs contrary to the Constitution’s vesting of the power to appoint representatives in ‘the people.’”
The three judges left open, for the moment, what would happen next. They gave the parties in the case until the end of this month to file briefs on whether the court should permit the existing map to be used one more time, in the midterm election, or should order that it be redrawn by mid-September.
With the election less than three months distant, Judge Wynn noted, a court normally would permit one more use of the old map, so as not to disrupt election preparations, especially since North Carolina has already held primaries for the races.
But the state’s election plans are already frozen by another bitter court battle, this one over Republican lawmakers’ efforts to place six state constitutional amendments on the November ballot. Among other things, those measures would strip the state’s Democratic governor of some powers to appoint judges and would allow the legislature to devise a new voter ID law to replace one struck down in the courts, which ruled it an effort to depress minority voting.
It was believable, Judge Wynn wrote, that the state could hold a fresh primary election for House seats in November using a new map, and then conduct a special election to choose the delegation before the next Congress convenes in January 2019. He also raised the probability of forgoing primaries, as the state does with some other offices.
The ruling promised to further roil the political scene in a state with one of the deepest partisan divides in the nation, and where both liberals and conservatives receive support from well-financed national groups.
Redistricting has been contentious in North Carolina for decades. In the years before 2010 when Democrats controlled the General Assembly, the Democratic-drawn boundaries were regularly challenged by Republicans, by critics of gerrymandering and by the Justice Department, which deemed some of their plans to be in violation of the federal Voting Rights Act.
Since the Republicans took control in 2010, their legislative boundary maps have prompted numerous court challenges from Democrats and advocacy groups.
Registered Democrats actually outnumber Republicans in the state by a compelling margin, though many of those Democrats are conservatives who have tended to vote Republican in recent years. President Trump carried the state by about 3.7 percentage points in 2016.
With this week’s ruling, North Carolina now faces the probability that its House delegation will be more evenly split, but it also faces the probabilty of electoral chaos, according to Gerry Cohen, who worked for more than three decades as the director of bill drafting for the General Assembly.
If changes are made this year, Mr. Cohen said, compelling bureaucratic miracles will have to be performed to meet a deadline of Sept. 22 for mailing absentee ballots to voters in the military and overseas.
Imagine it, Mr. Cohen said: New districts will have to be drawn. The courts — and perhaps the Supreme Court — will need time to rule on them. A filing period for candidates will have to open and close. The state will have to update its rolls to assign millions of voters to their new districts. And ballots will have to be printed. All before Sept. 22.
“I’m very sympathetic to the plaintiffs here, but it would be insane,” Mr. Cohen said, to try to meet that timetable.
He said that while the ruling could ultimately assist Democrats, it also introduces new political questions. If the next delegation is chosen in a special election in early 2019, as the court suggested may be an option, Democrats may struggle to turn out voters, as they historically have in special elections. Alternatively, if the seats are filled in open races without a primary, numerous candidates could be on the ballot from the same party, splitting the vote.
Though the state’s existing map was drawn aggressively to secure Republican incumbents, rising liberal opposition to President Trump and the emergence of several strong Democratic candidates already have some House Republicans on the defensive.
Representatives Ted Budd and George Holding, for example, were facing closely contested races, and Democrats were even better positioned to capture a Charlotte-to-Fayetteville seat after the Republican incumbent, Robert Pittenger, lost his primary earlier this year to a lightly funded opponent.
Under a new, less Republican-friendly map, more seats could become competitive, especially in Charlotte and the Research Triangle, the state’s main population centers, where the current boundaries tend to minimize the voting impact of African-Americans and white liberals.

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