The North Carolina Republicans’ 10 to 3 dominance of the state’s delegation in the U.S. House of Representatives appears likely to continue with the existing election districts unchanged for the November 6 election. In a brief order Tuesday, a federal three-judge trial court that had ruled those districts unconstitutional — as a partisan gerrymander — said it had concluded there was not enough time to have new maps drawn up for use in this year’s general election.
Because Democrats in the state had hoped to be able to pick up several seats this year, if a new map were drawn up that did not favor Republicans, the court’s new order is likely to frustrate those hopes. That could diminish the chances that the Democrats nationwide could take control of the House when the new Congress assembles next January.
The North Carolina case is expected soon to be on its way to the Supreme Court, because state GOP legislative leaders have disclosed a plan to ask the Justices to salvage the existing maps for future elections. They have been arguing that the Supreme Court is not likely to strike down any election districting map based on a claim of partisan manipulation of the boundary lines.
The Supreme Court has considered several such challenges over the past three decides but has never struck down any such gerrymander. In fact, the Court has never fashioned a constitutional formula for judging when partisanship went too far in drawing election maps. It avoided doing so again as recently as last term, when it acted on cases from Maryland and Wisconsin.
The three-judge federal court sitting in Greensboro, N.C., ruled last month that the 2016 House districting map for North Carolina was invalid because it was intentionally designed to give an election advantage to Republican candidates. That map has been used in three elections, and each time the GOP won 10 out of the 13 seats even though the two parties’ statewide vote totals in those races were nearly even.
The Greensboro court ruled that the map violated the constitutional rights of Democratic voters to freely express their political views and denied them equality in their opportunity to elect their preferred candidates. Based on the Constitution’s Elections Clause in Article I, governing how members of the House are chosen, that court also decided that the state legislature did not have the authority to draw maps that favored the candidates of one political party.
The GOP leaders of the two houses of the North Carolina legislature have asked the three-judge court to put its ruling against the 2016 map on hold in order to allow time for them to appeal to the Supreme Court. Under federal election law, an appeal from such a three-judge trial court in a redistricting case goes directly to the Supreme Court, bypassing the usual route through a federal appeals court. The Justices do not have the option of simply refusing to hear such an appeal.
The Greensboro court said Tuesday it would rule promptly on the delay request, after new legal briefs are filed on Wednesday. If it denies the postponement, the GOP lawmakers could ask the Supreme Court to put the case on hold while the appeal goes forward. It would take the votes of five of the current eight Justices to grant the delay; the Court has a vacancy because of the retirement in July of Justice Anthony M. Kennedy. If the eight current Justices were to split 4-to-4 on the delay question, that would leave the trial court ruling in force while the appeal proceeded.
President Trump’s nominee to succeed Kennedy, federal appeals judge Brett M. Kavanaugh (whose Senate confirmation hearings began Tuesday), is not likely to be joining the Court for several more weeks even if he wins full Senate approval.
