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Partisan gerrymandering case could force another congressional primary in NC

Posted August 27, 2018 6:15 p.m. EDT
Updated August 28, 2018 3:24 p.m. EDT

Gerrymandering  (Tom Brenner/The New York Times)

— A federal court on Monday raised the prospect of another legislative session to redraw North Carolina’s congressional maps before the November elections.

The three-judge panel wants all sides in the case to weigh in by Friday evening on throwing out the current maps and holding primaries again in congressional races this November with newly drawn districts. That would move the general election to shortly before a new Congress is seated in January.

The court also contemplated not holding new primaries at all and setting aside the results of the May primaries in favor of new districts and a general congressional election without primaries. Here the panel used some of the Republican legislative majority's own argument against it, noting that the General Assembly canceled this year's judicial primaries.

"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," 4th U.S. Circuit Court of Appeals Judge James Wynn wrote for the majority.

Regardless of what happens this election cycle, the judges said they won’t allow future elections to be held using the current congressional map, which they have twice deemed unconstitutionally gerrymandered for partisan reasons.

U.S. District Judge Earl Britt concurred with Wynn's order. U.S. District Judge William Osteen dissented on several points of law, but he wrote in his dissent that he agreed with the majority's planned remedial action.

Britt and Wynn were appointed by Democrats, Osteen by a Republican. A spokesman for Senate President Pro Tem Phil Berger, R-Rockingham, blamed Wynn for "an unprecedented opinion based on unfounded judicial precedent less than three months before an election.

"The decision throws North Carolina into chaos causing maximum voter confusion and suggests that a court can deny North Carolina citizens their right to vote in November," spokesman Pat Ryan said in an email.

Berger and House Speaker Tim Moore issued a joint statement Tuesday before appealing the ruling to the U.S. Supreme Court.

"What the [lower] court suggests is simply impossible," they said in the statement. [We're] not aware of any other time in the history of our country that a state’s congressional delegation could not be seated, and the result would be unmitigated chaos and irreparable voter confusion. The Supreme Court must step in to correct this disastrous decision."

Osteen wrote that the General Assembly should get another chance to redraw the map. Wynn and Britt allowed for that possibility but also said the parties in the case should think about an outside expert they'd be willing to bring in to draw a map for the court to approve, as was done for General Assembly districts in a racial gerrymandering case.

If the General Assembly is allowed to redraw the map, it must do so by 5 p.m. Sept. 17, the court said.

"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," Wynn wrote.

November ballots have already been delayed by separate fights over the wording of proposed state constitutional amendments and the party designations that will go beside a handful of judicial candidates, including a candidate for the state Supreme Court. The General Assembly wrapped up a short special session Monday on the constitutional amendments issue.

The current congressional map was redrawn in 2016 after a separate lawsuit found an unconstitutional racial gerrymander in the previous one. During legislative debate over that redraw, House Rules Chairman David Lewis announced that the new map would elect 10 Republicans and three Democrats and that he didn't think it was possible to draw an 11-2 GOP map.

Common Cause and the League of Women Voters of North Carolina sued later that year, accusing the General Assembly's GOP majority of focusing so much on securing victories for congressional Republicans that it violated the constitutional rights of voters in the redrawn districts.

The case is one of several across the country arguing that extreme partisan gerrymanders are unconstitutional. In dealing with one of those cases earlier this year the U.S. Supreme Court kicked North Carolina's version back down to the panel for further consideration, which led to Monday's decision. The high court has not ruled partisan gerrymanders are unconstitutional, leaving North Carolina's case ripe for appeal.

But with a 4-4 split now on the Supreme Court, any emergency action to undo the panel's decision ahead of the November elections may fail, leaving the panel's decision in place and forcing new districts to be drawn ahead of the 2018 elections, according to national expert Rick Hasen, who teaches law and political science at the University of California, Irvine, and writes about election law.

Other national watchers said changes in North Carolina's map could change the balance of power in the U.S. House, where Democrats are expected to make gains this election season. Picking up a few extra seats in North Carolina could be the difference for the party.

“That the U.S. House majority may hang in the balance of an unelected judge’s political opinion is either of no import to this court, or is the real motive behind this outrageous election meddling," Berger's spokesman said.

The majority in this case found that partisan gerrymandering "strikes at the heart" at a basic principle of government: That the state must treat every voter the same.

"By definition, partisan gerrymandering amounts to an effort to dictate electoral outcomes by favoring candidates of one party and disfavoring candidates of another," Wynn wrote.

"Partisan gerrymanders, therefore, 'raise the specter that the government may effectively drive certain ideas or viewpoints from the marketplace,'" Wynn wrote, quoting past precedent. "That is precisely what the Republican-controlled North Carolina General Assembly sought to do here."