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Tuesday, August 28, 2018


What Joe Biden said: NC gerrymandering ruling

by Tom Sullivan

A federal court on Monday rejected NC congressional district map as an unconstitutional partisan gerrymander.

Here we go again. The GOP-led North Carolina state legislature spent yet another kangaroo special session Monday massaging — at a state court's insistence — misleading ballot language describing two constitutional amendments that would strip power from Gov. Roy Cooper, a Democrat. Late in the day, the U.S. District Court for the Middle District of North Carolina ruled the congressional districts it had drawn in 2011 and redrew in 2016 — at a federal court's insistence — were unconstitutional. Again.

Where the courts had found the earlier plan was an unconstitutional racial gerrymander, the court ruled Monday the 2016 map constitutes an unconstitutional partisan gerrymander.

The state is fairly evenly divided along party lines. Donald Trump narrowly defeated Hillary Clinton in 2016, but the state elected Democrats as governor and attorney general. Republicans who took control of the legislature in 2011, however, drew districts that secured 10 of the state's 13 districts for the GOP. Those districts have been the subjects of lawsuits ever since. The combined cases in this ruling were brought by Common Cause, the North Carolina League of Women Voters, and others against the Republican legislators behind crafting the gerrymandered maps.

Hoisted on their own petards

The three-judge panel's remedy to the GOP lawmakers' "invidious partisanship" reads as though written by an exasperated Dean Wormer. The court gave the "Deltas" until 5 p.m. on August 31, 2018 to show cause why it should give them One. More. Chance. to use the flawed maps. Yet, after six years and three election cycles of denying the state's voters constitutional representation, the court clearly doubts the legislature will put forth a good-faith effort this time and seems disinclined to give it one.

With primaries already settled, courts would not normally demand new maps this close to an election. But citing the "exceptional circumstance" of this case, Judge James J. Wynn and the panel may insist on new districts just over two months ahead of the mid-term elections.

In June this year, the lawmakers argued primary elections may not be needed for some partisan elections. Furthermore, the defendants argued to the Supreme Court at that time that altering state legislative districts (in dispute in a separate case) would cause “only minimal disruption to the ongoing election process” even with primaries already completed. Thus, Wynn argued, the legislature had already conceded imposition of an alternative plan would not be disruptive to an ongoing election. And with an injunction in place preventing printing ballots before the constitutional amendment language case is settled, Wynn sees no reason why new congressional districts could not be imposed on a recalcitrant legislature before November. The General Assembly may, if the court agrees, get until September 14 to produce them for court approval.

Since in the intervening months, "the General Assembly has enacted a number of pieces of election-related legislation that federal and state courts have struck down as unconstitutional," Wynn has run out of patience. The Monday ruling permanently enjoins the state from conducting any more elections past 2018 under the current maps. Believing no good-faith efforts from the Deltas will be forthcoming, the court plans to backstop the General Assembly's double-secret probation by appointing a special master to draw maps for them before September 17, drawing perhaps from "any one of the thousands of districting plans currently in the record." The deadline for mailing absentee ballots for overseas and military voters is September 22. Early voting begins October 17.

National implications

The U.S. Supreme Court has never ruled a state's redistricting unconstitutional on partisan grounds. The New York Times explains:

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 ability to tinker with political maps, and four more liberal justices who have argued that it has that ability.

A 4-to-4 vote would leave the lower court’s ruling intact.
"All this because one party is terrified of allowing fair elections in the state of North Carolina," Jeff Rose, chair of the Buncombe County Democratic Party, wrote in a Facebook post. The 2011 maps split Buncombe and the city of Asheville in the western mountains between NC-10 and 11, made NC-11 uncompetitive for Democrats, and Democrat Heath Shuler retired. Rep. Mark Meadows, leader of the House Freedom Caucus, has held the seat for Republicans since 2013. Maps that put Asheville back into NC-11 could put Meadows's NC seat back in play in 2020.

A lot more districts could be in play across the country after the 2021 redistricting (if not before) if this ruling stands.

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For The Win 2018 is ready for download. Request a copy of my county-level election mechanics primer at tom.bluecentury at gmail.