North Carolina Republicans plan to ask the Supreme Court to “step in” and preserve the state’s congressional map ahead of November’s midterm elections, after a lower court ruled that the current map was unconstitutional.
In a 2-to-1 decision written by Judge James A. Wynne, Jr., a special judicial panel found on Monday that the map’s partisan slant violated the First Amendment and the Constitution’s guarantee of equal protection under the 14th Amendment. “The Constitution does not allow elected officials to enact laws that distort the marketplace of political ideas so as to intentionally favor certain political beliefs, parties, or candidates, and disfavor others,” Wynn wrote.
The Republican-drawn maps, which have created a 10-3 Republican delegation in a state that voted for President Trump by just 2.6 percentage points, have been challenged in court multiple times this decade. In 2016, courts forced Republicans to tweak the maps after determining that their redistricting commission had discriminated against black voters.
North Carolina’s constitution empowers the legislature to draw all electoral maps, with no input from the governor. This leaves no role for Governor Roy Cooper (D), who has spent much of his term battling Republicans in court over attempts to shift more power from his office.
The new lawsuit was brought by Common Cause and the League of Woman Voters, nonpartisan groups that have rallied against maps that pack voters into gerrymandered districts.
The shape of North Carolina’s districts has ramifications outside the state, potentially determining which party controls Congress in 2019. The current map splits the strongly Democratic city of Asheville into two Republican leaning districts–one a member of the House leadership team, the other the leader of the conservative House Freedom Caucus.
A different map could also complicate Republican efforts to hold the 2nd, 9th, and 13th districts, all of which backed President Trump by around 10 points in 2016. However, timing poses problems for Republicans. Early voting was set to begin on October 17, leaving just a few weeks for the state to create new maps or for a court-appointed master to draw them.
Some in North Carolina have proposed replacing the November midterm with a primary election and paying for a new general election a few weeks later. If the House hangs in the balance – Democrats need to flip 23 seats to take over – a determination of who holds the chamber could be delayed.
Republicans have reeled at the suggestion of a delay. Earlier this year, the Supreme Court punted on two lawsuits against partisan gerrymanders, one that favored Republicans and one that favored Democrats. However, the retirement of Justice Anthony M. Kennedy has complicated matters. Kennedy provided a fifth vote against acting on the gerrymandering lawsuits. With his seat vacant, the court could deadlock, leading to a 2018 election with new maps or a delayed election.
It is not clear when Kennedy’s seat will be filled. President Trump’s nominee, Brett M. Kavanaugh, is seen as a likely vote to preserve partisan gerrymanders and his confirmation hearings are set to begin on September 4. Senate Republicans hope to seat Kavanaugh just weeks before the midterm elections.
President Trump has not commented on the North Carolina standoff. He will be in the state on Friday to raise money for Republican candidates in the 9th and 13th district.
