Gerrymandering Ruling in North Carolina Could Alter Majority

North Carolina Congressional Districts

North Carolina Congressional Districts

By Jim Ellis

Sept. 3, 2018 — Last week, the same three-judge panel that previously ruled the North Carolina congressional boundaries as unconstitutional did so again, well after the lines were re-drawn in 2016 to reflect one of their previous decisions.

Predictably, the two Democratic judges ruled to overturn the legislature’s map once again, with the lone Republican dissenting. This time, the ruling concerns political gerrymandering, after the panel originally tossed the map because of what they cited as “racial gerrymandering.” The North Carolina delegation has split 10R-3D since the original 2011 map was created after the 2010 census.

The latest action, coming at a time when the US Supreme Court has only eight members because Judge Brett Kavanaugh has not yet been confirmed to replace retired Justice Anthony Kennedy, could stand if the high court fails to halt or invalidate the ruling.

If the decision remains, it becomes very unclear as to how the election would proceed. If the lines are suddenly unconstitutional, a new map would have to be set in its place. At this point, it is probable that the court would usurp the state legislature’s constitutional power and force its own map into law.

What happens to the candidates who won the May primaries, or even lost, as in the case of Rep. Bob Pittenger (R-Charlotte), remains in flux. It is likely many lawsuits would be filed, likely from candidates who won primaries but were denied the chance of running in the subsequent general election, to voters who would be disenfranchised after voting for a candidate who, after being nominated, no longer appears on the ballot because the particular voter has been arbitrarily shifted to another district, and every argument in between.

The circuit justice for the 4th Circuit District, where North Carolina resides, is Chief Justice John Roberts. He would have the power to issue a stay by himself, as the other justices would from cases emanating from the circuits in which they individually preside. Or, a majority of the court could agree to issue a stay, which is the typical practice. And, even if the court doesn’t agree because they now have an even number, they could agree to stay and hear another related case once Judge Kavanaugh becomes a justice, and that could conceivably invalidate the three-judge panel’s new decision.

Therefore, as we approach Labor Day and are less than 70 days from the election, we now have a state that doesn’t even know if it will hold congressional elections on Nov. 6, in what district their candidates will be running, if there will be a filing period, or whether or not there will be a new set of primaries.

Almost assuredly, there would have to be a candidate filing period because the judges simply assigning nominees to districts most likely would not pass the Supreme Court’s muster. The three-judge panel would also have to prove to the high court that the previous Supreme Court ruling that remanded the political gerrymandering cases back to the original court to ensure that plaintiffs are present in each of the districts in question — in this case all 13 North Carolina congressional districts (the panel claims they have met the new standard). Then, a nomination system would have to be decided.

Conceivably, addressing the latter point, the court could install a Louisiana-type system that would create a jungle primary concurrent with the general election (Nov. 6), and then hold run-offs likely in December for winners who do not obtain a majority vote. Or, speculation is buzzing in North Carolina that the judges could simply do away with any primary system, and have just one election, awarding the seat to the top vote getter regardless of percentage attained.

Furthermore, once Judge Kavanaugh is installed and a new court majority is in place, an additional case and ruling could cause these coming North Carolina elections to be invalidated and a new series of special elections called to replace them next year.

With the US House majority possibly coming down to a handful of members, the North Carolina seats could well decide which party controls the majority in a scenario where the two parties are at virtual parity, and such is a plausible outcome.

The North Carolina three-judge panel has added a new twist to the 2018 congressional elections, and some time will be required, along with much legal wrangling, to even determine what system the state will use to elect its 13 US House members just two months from now.

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