RALEIGH — The prospect for new state legislative districts this spring and elections this fall are dimming despite a court order, legal experts say.
The situation is just one of several ongoing legal battles surrounding North Carolina elections.
An elections schedule ordered by the 4th Circuit Court of Appeals in November requires new General Assembly districts to be drawn and approved by March 15 followed by a candidate filing period, primaries and a November election. The ruling came after a three-judge panel from the court ruled in August that nine North Carolina state Senate districts and 19 House districts were unconstitutional because they were drawn using race as the predominate factor.
“This state’s citizens have the right to vote in districts that accord with the Constitution,” the court said in its August decision. “We therefore order that new maps be drawn that comply with the Constitution and the Voting Rights Act.”
But U.S. Chief Justice Chief Justice John Roberts put the 4th Circuit decision and the election schedule on hold late last year by, adding the case, North Carolina v. Covington, to a conference by the justices on January 19. On January 10, the court granted a stay of the 4th Circuit’s order.
Since then, Covington has yet to move. The high court has not granted the state’s petition to hear the case and last week it was dropped from a running list of potential cases for the court’s upcoming term.
Rick Hasen, an elections law professor at the University of California at Irvine who has closely followed North Carolina cases, says the move indicates that the justices anticipate other redistricting cases already in the pipeline could affect the outcome.
“The case has been put on indefinite hold by the Supreme Court, likely pending the outcome of the other racial gerrymandering cases now pending,” Hasen said in an email response to Carolina Public Press.
“This means, I think, the Court will not do anything with the case before late spring at the earliest, making an order of special elections in 2017 unlikely.”
Anita Earls, lead attorney for the Southern Coalition for Social Justice and one of the main attorneys in the case, agreed that the Supreme Court actions make it less likely, but said she believes there is still a window for the elections.
“It’s much less likely than it was,” she said. “But it’s not yet impossible. I think as long as they had new districts drawn by this summer we could have elections in the fall.”
In addition to the potential that a ruling in a related case could send Covington back to the 4th Circuit, Earls said the court could also be waiting for its ninth justice before moving ahead.
State House and Senate leaders have maintained that ultimately they will prevail in the Supreme Court. In a joint statement after 4th Circuit ordered 2017 special elections, Rep. David Lewis, R-Harnett, and Sen. Bob Rucho, R-Mecklenberg, accused the 4th Circuit of overreach.
“This politically motivated decision, which would effectively undo the will of millions of North Carolinians just days after they cast their ballots, is a gross overreach that blatantly disregards the constitutional guarantee for voters to duly elect their legislators to biennial terms,” Lewis and Rucho said.
“We continue to believe the maps drawn by the General Assembly, pre-cleared by the Obama Justice Department and twice upheld by our state’s elected Supreme Court are constitutional, and we will move quickly to appeal.”
Covington is just part of the recent wave of challenges generated by what plaintiffs say is a pattern of unconstitutional overreach in elections by legislative leaders. The cases, now moving through state and federal courts, include voting rights and ballot access challenges as well as redistricting moves for state, federal and local offices.
Gerrymandering and voting cases
The turns in the Covington case are the latest on a long, winding path toward resolving the legal challenges to districts drawn in 2011 that have cemented in place a supermajority of GOP legislators through three election cycles. It is one of five North Carolina gerrymandering cases in state and federal courts.
Three of them — Covington, Dickson v. Rucho and Harris v. McCrory — focus on racial gerrymandering. Another filed last September, League of Women Voters v. Rucho, charges partisan gerrymandering.
Earls said it is not unusual for there to be a surge of challenges around redistricting. In the 1980s there were successful challenges to multi-member districts. After the 2001 redistricting, Republicans successfully challenged districts based on the so-called “whole county” provision in the state constitution requiring counties not to be split as much as possible.
What’s different about the latest wave, Earls said, is the rise in litigation over voting rights and ballot access itself.
“The nature of the litigation has changed,” she said. “In addition to litigation over gerrymandering at the state level there’s much more of this defensive litigation to get access to the ballot in the first place.”
Earls said she believes that sometime this year there will be a positive settlement of a case brought under the so-called federal Motor-Voter law, which argued that the McCrory administration didn’t do enough to provide access to voter registration through the Department of Motor Vehicles and other state agencies.
Another access case still being fought involves another strong 4th Circuit ruling. In addition to its decision in the redistricting case, last fall, the court struck down the state’s 2013 voter ID and elections omnibus legislation, saying the law targeted African-American voters with “surgical precision.”
In late December, the McCrory administration petitioned the Supreme Court asking it to take up the voting rights case case.
Hasen suggested in a recent column that under North Carolina law Governor Roy Cooper and Attorney General Josh Stein have the authority to withdraw the petition.
Stein and a Cooper spokesperson told WRAL this weekend that they are reviewing the case.
Legislature and local elections
Earls said also in the mix of cases is an example of the General Assembly’s interest in local elections.
City of Greensboro v. Guilford County Board of Elections, which challenges legislation that changed city election laws and redrew Greensboro council districts, was slated for trial today in U.S. District Court in Greenboro.
The case is a challenge to a redistricting plan the legislature passed in 2015 that redrew city council districts and changed the powers of the mayor. The bill included a provision that prevents the city from holding a referendum on the plan until after the results of the 2020 census.
Earls, who argued successfully against a General Assembly redistricting plan for Wake County and won the injunction preventing the Greensboro law from taking effect, said more local elections legislation came about after legislators abandoned a long-held practice of seeking consensus among local delegations and elected boards on election changes.
“That just went out the window in 2011 and the General Assembly said, ‘We don’t care what the local body wants and if we want to redistrict them, we’re going to do it,’” she said.
The Wake County and City of Greensboro cases drew interest last year as the City of Asheville contemplated how to respond to late-session push by then Sen. Tom Apodaca to draw city council districts. The House unexpectedly killed Apodaca’s bill on the last night of the session in July.
Asheville Mayor Esther Manheimer said if it had succeeded, the city could have gone to court as well.
“One of the messages we were hearing from the community was that the community didn’t want districts imposed on them and wanted the council to fight that and if that meant legal action, so be it,” Manheimer said Friday in an interview.
Manheimer said despite the bill’s defeat, there are still efforts to go around the city and ask for the legislature to direct the process.
With that in mind, the council decided to work on the issue, she said, starting with trying to get a sense of what the community wants to do.
Manheimer said ultimately the issue would likely be put before the voters in a referendum. Although the timing could change, she said the city should have a plan in place before the legislature adjourns this summer.
“They need some assurance that we’re going to be reviewing this ourselves,” she said. “I would say they’ll probably want to know if we’re going to have it on the ballot by then.”