Editor’s note: This story has been updated to clarify that the ruling applies to federal congressional districts, not to state legislative districts.
A ruling by a panel of federal judges Monday raised the potential of drawing new congressional districts before November’s general election in North Carolina, or redrawing the districts and holding a new primary election in November and a general election before a new Congress is seated in January.
The ruling by a three-judge panel, in the U.S. District Court for the Middle District of North Carolina, found in favor of plaintiffs Common Cause and the League of Women Voters of North Carolina, who claimed that the partisan gerrymander of congressional districts was unconstitutional.
“The General Assembly expressly directed the legislators and consultant responsible for drawing the 2016 Plan to rely on ‘political data’ — that is, past election results specifying whether, and to what extent, particular voting precincts had favored Republican or Democratic candidates, and therefore were likely to do so in the future — to draw a districting plan that would ensure Republican candidates would prevail in the vast majority of the State’s congressional districts, and would continue to do so in future elections,” the court wrote.
The 2-1 ruling is expected to be appealed to the U.S. Supreme Court. It was written by Judge James Wynn, a Barack Obama appointee who previously reached a similar finding earlier in the case in January.
Among the court’s proposed remedies this time: Redrawing the districts before November and holding a general election without a primary election, or redrawing the districts, holding a primary election in November and holding a general election sometime before Congress is seated in January 2019. The court also said it might allow the General Assembly another chance at redrawing the districts.
But one prominent Republican dismissed the possibility of changing the election at this point.
“I can’t foresee a situation where we do not have Congressional Elections as planned in 2018,” tweeted Dallas Woodhouse, executive director of the North Carolina Republican Party.
The court said under normal circumstances it would have no choice but to allow the 2016 districts to stand for 2018.
“However, this case presents unusual circumstances,” the judges wrote.
It pointed to the elimination of primary elections in some partisan races, the ongoing fight over constitutional amendments and the use of districts that have been ruled unconstitutional for the past decade. The 13 congressional districts used in the 2016 election were drawn after courts ruled two of the districts as “unconstitutional racial gerrymanders.”
Common Cause and the League of Women Voters then sued over the new maps, calling them partisan gerrymanders. During a hearing on the new maps, Rep. David Lewis, a Harnett County Republican who leads on redistricting matters, said the districts were drawn to give Republicans 10 seats and Democrats three seats because they couldn’t figure out a way to draw an 11-2 map.
It worked: Republicans won 10 seats in November 2016, and Democrats won three.
While courts have long held that racially motivated gerrymandering is not OK — something North Carolina has run afoul of in the past — the U.S. Supreme Court has avoided tackling the question of partisan gerrymandering. North Carolina was one of three states that had partisan redistricting cases reach the U.S. Supreme Court this year. The Supreme Court sent all three cases back to lower courts for further hearings.
The federal court order released Monday means that the North Carolina case can continue. No matter what happens from this point, the order said, the congressional districts should not be used after this year.
“We’re pleased that a North Carolina federal court has once again stated what we have long believed, that extreme partisan gerrymandering is unconstitutional. This is a historic win for voters, and a significant step towards finally ending gerrymandering,” said Bob Phillips, executive director of Common Cause NC, in a statement.
Federal district court judge W. Earl Britt, a Jimmy Carter appointee, concurred with the decision by Wynn, who serves on the 4th Circuit Court of Appeals. Federal district court judge William L. Osteen Jr., who was appointed by George W. Bush, dissented in parts of the ruling.
Osteen found that the plaintiffs’ First Amendment rights were not violated, and he found that the “Constitution does permit consideration by a legislative body of both political and partisan interests in the redistricting case.”
A spokesman for Senate leader Phil Berger blasted the opinion as political.
“After court shopping since 2011, the plaintiffs finally found an activist judge — who happens to be an Obama appointee — to issue an unprecedented opinion based on an unfounded judicial precedent less than three months before an election,” Berger spokesman Pat Ryan said in an email Monday night.
“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,” Ryan wrote. “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.”
Rick Hasen, an election law expert and professor at the University of California, Irvine, wrote in a blog post Monday evening that the battle over the North Carolina districts is “a case with potentially national implications both short term and long.”
Democrats are hoping to wrest control of the House of Representatives from Republicans in November. Democrats need to gain 23 seats, a number that is within reach according to most predictions, and have targeted several North Carolina seats.
North Carolina’s 9th Congressional District, currently represented by Republican Rep. Robert Pittenger, is a top target for Democrats. Democrat Dan McCready is taking on Republican Mark Harris, who defeated Pittenger in May’s primary. The district stretches from Charlotte to Fayetteville along the North Carolina-South Carolina border.
North Carolina’s 13th District, which includes five counties southwest of Greensboro, is another target for Democrats. Republican Rep. Ted Budd, a first-term congressman, is facing Democrat Kathy Manning.
“After years of unconstitutional gerrymandering to curtail the voice of North Carolinians, today’s ruling is a step in the right direction. Whether or not the district lines change, we are in a strong position to win this seat and give North Carolina families the problem solver they deserve in Congress,” Manning campaign manager Tori Taylor said in a statement.
The ruling and proposed remedy raises the possibility, however unlikely and remote, that control of the U.S. House might not be determined until after post-November general elections were held in North Carolina, separate from the rest of the country.
Carl Tobias, a law professor at the University of Richmond, said the Supreme Court is unlikely to allow drastic changes so close to an election.
“It seems to me the Supreme Court might not want to have what they would characterize as last-minute changes,” he said.
In 2016, North Carolina moved its primary elections for Congress to June due to a loss in a separate gerrymandering lawsuit.