Judges question GOP majority over redistricting delay

The panel last year found 19 House and nine Senate districts unconstitutional and ordered them redrawn. The U.S. Supreme Court upheld that ruling in early June, but it sent the case back to the panel to reconsider whether special elections should be held with new maps or whether it's better to keep the status quo in Raleigh until the regularly scheduled November 2018 elections.

Regardless of what's decided on the special election, the map-making process itself should be further along, U.S. District Judge Catherine Eagles and 4th U.S. Circuit Court of Appeals Judge James Wynn suggested from the bench.

"You don't seem serious," Eagles told attorney Phil Strach, who represents General Assembly leadership.

"We would respectfully disagree with that," Strach replied.

Republicans want several months, they have said, to hold public hearings on potential new House and Senate maps. They held their first committee meeting on the issue Wednesday, but it was just organizational in nature.

Plaintiffs in the case want new maps within two weeks. That's how long it took the General Assembly to redraw the state's congressional map after it, too, was deemed unconstitutional. Strach noted Thursday that reworking the lines of 170 General Assembly districts will be more complex than redrawing 13 congressional districts.

Any timetable problems are the result of legislative delay, Eagles said. Wynn said the body has had "plenty of time."

The court could appoint an expert, called a special master, to redraw the maps without waiting on the legislature to act.

"We don't want to do that," Wynn said. "We want our legislature to do what it's supposed to do."

The judges gave no timetable for their decision in this case. Although their lines of questioning seemed to favor plaintiffs seeking a quicker redraw, plaintiffs' attorney Anita Earls said after the hearing that she didn't read much into their remarks.

Eagles and Wynn both have a reputation for "spirited questioning," she said.

The third panel member, U.S. District Judge Thomas Schroeder, was more reserved during the hearing. But he too questioned the legislature's timetable, saying it gives the court less time to ponder new maps and decide whether they pass constitutional muster. More time for the court means less time for public hearings, Strach said.

"Well, that's your own fault," Eagles said.

Eagles was appointed to the bench by President Barack Obama, as was Wynn. Schroeder was appointed by President George W. Bush.

While Wynn questioned the legislature's commitment to drawing new maps, he threw some cold water on the prospect of a special election, saying "it does look difficult" to call one this year. But when Strach suggested that the questions were joined – that there's no need to speed up the redraw timetable unless a special election is ordered – Eagles interrupted him.

"You might not like the result of that theory," she said.

Plaintiffs have asked for early December legislative primaries and March general elections. The 2018 elections would be held as normal, meaning the filing period for regular elections in February would overlap the special elections.

"I cannot think of a more confusing set of election rules," said Strach, who also said turnout in the special elections would likely be quite low.

Democrats argued that delaying the maps gives Republicans, who as the majority will draw the new maps unless the court intervenes, an advantage.

"If you're taking on an incumbent Republican, you've got to start right now," said Rep. Grier Martin, D-Wake.

Yet, Martin, who oversees candidate recruitment and fundraising for his party in the House, said he's told potential candidates to keep quiet, lest Republicans draw them right out of districts they hope to run in.

Some have argued that the current legislature itself is unconstitutional because there are so many illegal districts. Attorney Edwin Speas said Thursday the General Assembly "may be the most illegally constituted body in the history of the United States" and that legislative actions, including the potential veto overrides coming during a planned Aug. 3 special session, could bring lawsuits challenging the legislature's authority.

Wynn may have lowered those concerns, though, when he told Strach later in the hearing that he needn't dwell on rebutting this line of argument with past court precedents.

"I think we're in agreement on it," the judge said.