North Carolina leaders filed an emergency appeal Monday to overturn a federal court order that threw out the boundaries of two congressional districts and injected major uncertainty into the state’s March 15 primary.
The motion was filed with the same three federal judges who found portions of the state voting map unconstitutional on Friday. State Sen. Bob Rucho, R-Matthews, who helped draw the district lines, said voting is already underway and should not be undermined by the courts. The state called for a response from the court on Monday.
“We trust the federal trial court was not aware an election was already underway and surely did not intend to throw our state into chaos by nullifying ballots that have already been sent out and votes that have already been cast,” Rucho said in a statement.
Later Monday, the judges gave the plaintiffs in the case, including two from Mecklenburg County, until noon Tuesday to respond.
In a surprise decision Friday, the panel found that the 12th District, which runs from Charlotte to Greensboro, and the 1st District, which cuts east from Durham to Elizabeth City, were racially gerrymandered by Republican legislators to unlawfully dilute black votes. The judges gave the state two weeks to file different lines, a move that would also change the makeup of neighboring districts.
Given the state’s appeal, the federal court could now put its own ruling on hold, or the primary elections could be rescheduled. Legal experts say it’s more likely that the judges will refuse the state’s request to set their order aside. The state would then appeal to the U.S. Supreme Court.
Legislative leaders advised their members Monday that Gov. Pat McCrory could call them into special session next week for several days, if they have to redraw the maps of the 1st and 12th congressional districts before the deadline or the election. However, a spokeswoman for Senate Leader Phil Berger said legislators “fully expect” a stay to be granted.
Voters across the state already have returned hundreds of absentee ballots that are based on the existing congressional lines.
Legal experts predict a long list of potential outcomes – from the Supreme Court blocking Friday’s ruling so state elections can proceed to a delay in the vote to fill the 13 seats in the U.S. House.
One thing remains clear: North Carolina again finds itself at the epicenter of the country’s voting wars, a 20-year court fight for power in mostly Southern states that slices across political and racial lines.
North Carolina’s voting maps and election rules are embroiled in at least five federal lawsuits. The state’s voter ID law is under attack in both state and federal courts, and fights continue on a more local level over district lines for the Greensboro City Council and the Wake County school board.
Now the timing of the judges’ ruling in the congressional district case leaves the state and the courts little time to respond.
“The fact that this is happening in an election year raises the stakes for everybody,” says Michael Gerhardt, a constitutional law expert at the UNC School of Law. “You can interpret just about everything anybody says as being driven by their own partisan concerns.”
Kareem Crayton, a Vanderbilt University law professor and an expert in redistricting fights, said the state has time to redraw the lines by the court’s deadline if it acts now. “It’s a matter of coming up with something that the courts will accept and the legislature can live with,” he said.
What will justices do?
How the Supreme Court responds, if asked, is a matter of conjecture. Under Chief Justice John Roberts, the high court has been hesitant to make late rulings that can alter elections and confuse voters. At the same time, the issue of racial gerrymandering is a fresh one. Last year, the high court voted 5-4 to strike down Alabama’s congressional districts, saying that race had played too big a role in how those lines were drawn.
Gerhardt says the justices, though sensitive to North Carolina’s election calendar, do not want to put the case aside until 2017.
If the Supreme Court delays last week’s order, Gerhardt expects the justices to make a quick decision on the merits of the case. “Three (lower court) judges have said these districts are illegal. To stay their order risks allowing illegally drawn districts to hold elections, and I have a hard time imagining the Supreme Court doing that,” he said.
The 12th District, which flanks I-85 from Charlotte to Winston-Salem and Greensboro, was the most litigated congressional district in the country during the 1990s. Back then, Republicans argued that Democratic mapmakers had created a serpentine safe space more than 120 miles long to insure the election of Democrat Mel Watt. Courts fights involving the 12th led to delays in congressional elections in both 1998 and 2002.
Now, it’s the Democrats’ turn to complain. They’re arguing that Republicans legislators have packed even more African-American voters into a few number of districts to ensure GOP majorities elsewhere.
On Friday, the three-judge panel ruled that legislators cared more about race than partisan politics when mapping the two disputed districts. The courts allow political motivations. For example, the 2011 maps tucked Democratic-voting Asheville into a far more conservative congressional district.
The courts have ruled, however, that district lines drawn predominantly around race violate the equal protection clause of the U.S. Constitution.
How to separate motives of politics and race, particularly in the South, is a matter of prolonged debate. Most African-Americans in North Carolina and its neighbors vote Democratic. Thus, a map drawn by Republicans for political gain naturally would affect black voters.
Rich Hasen, an election law expert from the University of California-Irvine, calls the distinction between race and politics in deciding the constitutionality of redistricting maps “completely artificial.”
“This whole separation is nonsensical,” he says. “It makes absolutely no sense to fight about whether it’s race or partisan politics. Because it’s both. Because they’re so intertwined.”
Crayton, a former UNC law professor, says North Carolina’s redistricting fights have flared up so often because the state is politically competitive with a rapidly growing – and changing – voter base. Unlike other Southern states, political parties and race are not necessarily synonymous, he says.
“It will surprise me if the whole Supreme Court doesn’t get involved here,” Crayton said. “I believe they will deal with this on the merits sooner rather than later. I’m not sure the court wants to deal with this in the middle of campaign season.”
Michael Bitzer, a political scientist at Catawba College, predicts the high court will “put things on hold” and let the congressional primary take place next month, then dig into the arguments of the case later on.
The legislature could decide to satisfy the courts by removing one of three major urban areas out of the 12th and placing it in a nearby district now represented by a Republican, Bitzer said. The Charlotte, Greensboro and Winston-Salem parts of the 12th all have a heavy concentration of African-American voters.
“Pulling one of them out could make the districts (affected) a little more competitive,” Bitzer said, but would not likely mean any change in which party represents the districts.
Meanwhile, the N.C. Board of Elections is telling voters with absentee ballots that they should go ahead and fill out the full ballot, said Joshua Lawson, the board’s general counsel.
“Out of an abundance of caution, we’re urging people to vote the (absentee) ballot you’ve been given ... and leave it to this agency to worry about the legal conclusion of whether (their votes in congressional primaries) will count.”
How voting would happen again
If the legislature ends up redrawing any congressional district boundaries, voters in the affected districts will get to vote again, Lawson said.
As of Saturday morning, 3.7 million ballots had been printed. More than 8,600 absentee ballots have been mailed out – including 7,845 that included congressional primary contests. Just over 900 of them have been sent to N.C. voters in foreign countries.
So far, boards of elections have received back 431 of the filled-out absentee ballots.
The federal ruling forbade the state from holding any elections for the U.S. House until congressional districts 12 and 1 are redrawn, Lawson said.
But that doesn’t mean people can’t go ahead and vote in those and other districts, he said.
“It’s not an election until we certify the results,” Lawson said.
Former Democratic state Sen. Malcolm Graham said last week’s ruling throws the state’s election calendar into disarray and that Republicans have only themselves to blame.
Graham, who unsuccessfully ran for the 12th District seat in 2014, said Republicans knew the maps were before the courts and that judges were bound to rule. Yet they still moved all the primary elections to March, instead of keeping the congressional races and other state primaries in May.
“It’s a disaster of their own making,” he said.