A three-judge panel of Federal Judges in North Carolina has ruled that the current North Carolina Congressional District map can be used for the 2018 midterm elections notwithstanding their previous ruling that the map constituted an illegal and unconstitutional political gerrymandering:
A panel of federal judges that deemed North Carolina’s congressional maps to be unconstitutionally gerrymandered ruled on Tuesday that those same maps should be used for the November election, citing “insufficient time” to create new ones.
Liberals cheered the judges’ ruling last week that the maps were unconstitutional; the panel determined that Republicans, who control the State Legislature, had drawn districts to give themselves an unfair partisan advantage. But the decision also sent stabs of anxiety through the state’s political class because it left open the possibility that candidates might have to compete in new primaries or run in freshly drawn districts with just two months before the midterms.
There was also some worry that government officials, had they been ordered to redraw the maps for this election cycle, would not be able to print ballots in time to meet a Sept. 22 deadline for mailing absentee ballots to service members and voters overseas.
The court had given the parties in the lawsuit challenging the maps until Friday to file briefs on whether the state should be allowed to use the old maps in the Nov. 6 election. The judges on Tuesday wrote that there was not enough time “to approve a new districting plan and for the State to conduct an election using that plan prior to the seating of the new Congress in January 2019.”
Moreover, a new elections schedule would “likely confuse voters and depress turnout,” the judges wrote.
The decision disappointed some Democrats, who had hoped that newly drawn districts might have made some congressional races more competitive this year. Even though the vote totals of North Carolina Democrats and Republicans have been roughly even recently, the court ruled last week that the district lines drawn by Republicans helped that party win 10 of the state’s 13 House seats.
In a statement on Tuesday, Phil Berger, the Republican leader of the State Senate, said that the ruling “has removed the last remaining obstacle to printing ballots, and it’s time for the State Board of Elections to do their job and print them as soon as possible.”
As Politico notes, the idea that there simply wasn’t time for the legislature to come up with a workable map for the upcoming election is one that was largely shared by both sides to the underlying litigation:
Plaintiffs in the case like the League of Women Voters and Common Cause told the court in a brief last Friday that it would be unwise to force those kinds of changes on such short notice.
“Attempting to impose a new districting plan in time for the 2018 election would be too disruptive and potentially counterproductive,” attorneys for the groups wrote. “Statewide redistricting just weeks before Election Day would not be a good-government solution.”
North Carolina officials had already appealed last week’s decision to the Supreme Court, but it was unclear whether the justices would step in, particularly because the high court is currently shorthanded and even divided between Republican and Democratic appointees.
The three-judge court’s action reduces the urgency of that dispute, although the Supreme Court may well hear arguments in the case again once it returns to nine justices. The high court ruled on the case in June, but didn’t resolve the legality of the map at issue. Instead, the justices told the lower court to take another look at whether those challenging it had legal standing to do so.
The three judges below concluded that the challengers did have standing. The court stood by its previous ruling that Republican state legislators violated the First Amendment and the equal-protection clause of the Fourteenth Amendment when they drew congressional lines that favored their party. Ten of the state’s 13 House districts are held by Republicans.
Although not specifically mentioned in the short order embedded below, it seems clear that the Judges on the panel were guided by previous rulings by superior courts, specifically including the Supreme Court in a 2006 ruling called Purcell v. Gonzalez.
In that case, the courts were dealing with a Voter ID law out of Arizona that was being challenged on the allegation that it unfairly discriminated against minority and poor voters. The District Court and the Ninth Circuit Court of Appeals both ruled in favor of the Plaintiffs and imposed an injunction against enforcement of the law notwithstanding the fact that both injunctions were issued within less than two months prior to the 2006 midterm elections. By that time, of course, state and local authorities had moved forward with election planning, including the printing of absentee and military ballots, that presumed the new law would be in effect for that election. The relevant state authority appealed the granting of the injunction that the courts below had erred in not giving due consideration to the fact that state authorities had moved forward in reliance on the idea that the law would be in effect for the 2006 election. In a relatively short opinion, a unanimous Court ruled that the Court of Appeals had erred in not giving greater consideration to allowing the law to go into effect just weeks before the election:
Faced with an application to enjoin operation of voter identification procedures just weeks before an election, the Court of Appeals was required to weigh, in addition to the harms attendant upon issuance or nonissuance of an injunction, considerations specific to election cases and its own institutional procedures. Court orders affecting elections, especially conflicting orders, can themselves result in voter confusion and consequent incentive to remain away from the polls. As an election draws closer, that risk will increase. So the Court of Appeals may have deemed this consideration to be grounds for prompt action. Furthermore, it might have given some weight to the possibility that the nonprevailing parties would want to seek en banc review. In the Ninth Circuit that procedure, involving voting by all active judges and an en banc hearing by a court of 15, can consume further valuable time. These considerations, however, cannot be controlling here. It was still necessary, as a procedural matter, for the Court of Appeals to give deference to the discretion of the District Court. We find no indication that it did so, and we conclude this was error.
Although at the time the Court of Appeals issued its order the District Court had not yet made factual findings to which the Court of Appeals owed deference, see Fed. Rule Civ. Proc. 52(a), by failing to provide any factual findings or indeed any reasoning of its own the Court of Appeals left this Court in the position of evaluating the Court of Appeals’ bare order in light of the District Court’s ultimate findings. There has been no explanation given by the Court of Appeals showing the ruling and findings of the District Court to be incorrect. In view of the impending election, the necessity for clear guidance to the State of Arizona, and our conclusion regarding the Court of Appeals’ issuance of the order we vacate the order of the Court of Appeals.
In a concurring opinion, Justice John Paul Stevens noted that leaving the stay of the lower court’s ruling against the law in effect in advance of the impending election would be the best way for future courts to deal with the legal issues involved in the case.
Allowing the election to proceed without enjoining the statutory provisions at issue will provide the courts with a better record on which to judge their constitutionality. At least two important factual issues remain largely unresolved: the scope of the disenfranchisement that the novel identification requirements will produce, and the prevalence and character of the fraudulent practices that allegedly justify those requirements. Given the importance of the constitutional issues, the Court wisely takes action that will enhance the likelihood that they will be resolved correctly on the basis of historical facts rather than speculation.
In Purcell, the Ninth Circuit opinion vacating the stay against the lower court ruling was issued on September 11th, and the Supreme Court’s ruling on the appeal of that denial was issued on October 20th. While both of these dates were closer to the date of the 2006 midterms than we are right now, it seems to me that the Purcell ruling applies nonetheless and it seems apparent in the Courts order that the panel had this ruling in mind when it agreed with the parties that proceeding with the existing map for the midterms would be the least disruptive way to proceed in this case. Even assuming that the panel’s ruling is correct on the facts and the law, requiring the legislature to redraw the maps at this point in the election cycle, or imposing a map drawn by a Special Master appointed by the Court, would be highly disruptive to the electoral process and potentially unfair both to candidates who have been campaigning in reliance on the fact that the current map is the one that will be in effect on Election Day and on voters who are likely already confused about which race they are going to be asked to vote on when the election comes. Additionally, we’re already at the point where election officials are being required to prepare and mail absentee and military ballots and the time when early voting is supposed to begin. Given the large number of military bases in North Carolina, the military ballot issue is a particularly relevant one since Federal law requires those ballots to be mailed within a specific amount of time prior to Election Day. There are similar deadlines in the law regarding the printing and mailing of absentee ballots and the printing of the ballot for early voting. The odds that the issues regarding the Congressional map can be resolved before these deadlines are, to be frank about it, quite low. Given all that it seems quite clear that the only fair and equitable solution at this point is the one that the panel reached here. Assuming that the underlying decision survives on appeal, the map for future elections, which basically just means the 2020 elections at this point since the elections in 2022 will be governed by yet another map based on the post-Census reapportionment, is the best way to proceed.
Here’s the opinion:
Common Cause Et Al v. Rucho… by on Scribd
