Legislative defendants are asking the N.C. Supreme Court to avoid jumping into a legal fight over new election maps.
In a pair of new court filings, legislative leaders also ask the high court to avoid removing one justice from hearing the case.
“Petitioners here seek to establish the troubling — and, indeed, anti-democratic — proposition that any well-funded private citizen or public interest group can come to court, drop the label ‘gerrymander’ in a filing, and get an injunction impacting the voting opportunities of 10.4 million North Carolina residents, regardless of the merits of the case,” writes attorney Phillip Strach on behalf of Republican legislators.
Plaintiffs in two lawsuits have asked the Supreme Court to bypass the N.C. Court of Appeals and take their cases. Both suits challenge new election maps adopted for the 2022 elections. The maps affect contests for North Carolina’s 14 seats in the U.S. House of Representatives, along with all 170 seats in the General Assembly.
Redistricting challengers want the Supreme Court to block candidate filing in all of those races. Filing started Tuesday, after a one-day delay caused by competing court rulings in the Appeals Court.
As things stand, the Appeals Court has agreed to consider the case in an “en banc” hearing involving all 15 of its judges. The redistricting challengers’ petitions ask the Supreme Court to cut that process short. Instead the challengers want the seven-member Supreme Court to jump into the case before the full Appeals Court takes any further action.
Plaintiffs in one of the suits, called Harper v. Hall, also want the court to disqualify Justice Phil Berger Jr. Berger’s father is the top officer in the state Senate and a named defendant in the lawsuit.
“Both Petitions before the Court take remarkable liberty with the evidentiary record, asking this Court to infer from the possibility that legislators may have had access to political data that legislators did use political data” in drawing new election maps, Strach writes. “They repeatedly misstate the import of items they cite. They make improper assumptions concerning their own unvetted allegations about an alleged lack of proportional representation and propose inferences upon inferences from alternative maps. But because these alternatives were not drawn to achieve the General Assembly’s nonpartisan criteria, they say nothing meaningful about partisan intent or effect.”
Strach emphasizes the time necessary to address redistricting challengers’ arguments adequately. “[B]ecause the inferences Petitioners wish to draw are so attenuated and complex, this Court, even if it reached the constitutional issues raised in the Petitions, would have little choice but to remand for evidentiary hearings before injunctive relief could properly be entered,” he writes.
In other words, the Supreme Court would have to remand the case, or send it back, to the original trial court for a more detailed hearing.
“There is insufficient time for that procedure, and only by jettisoning due process and prioritizing the unproven allegations of a select few individuals over the interests of the entire State could this Court order relief,” Strach writes.
In a separate filing, Strach rebuts the idea of disqualifying Berger from hearing the redistricting cases. He emphasizes that Sen. Phil Berger is linked to the case only through his official role as Senate leader, not as an actual defendant.
“Because the State is the true party in interest in these lawsuits, Petitioners cannot cite an objectively reasonable basis in evidence, not to mention a ‘substantial’ one, that Justice Berger cannot be impartial in this matter,” Strach writes. “For instance, Petitioners are not seeking an injunction from this Court to have Senator Berger take individual action; no relief sought or that might be ordered in this appeal— whether a writ, stay, or the injunction Petitioners ultimately seek — would require or prohibit any action as to just Senator Berger.”
“Rather, Petitioners are seeking a decision of the Court to halt statewide filings for the 2022 election cycle and, ultimately, have the State — through General Assembly action — redraw legislative and congressional maps. Senator Berger has one vote in a multimember body that exists to represent the interests of the citizens of North Carolina, which is his sole reason for being part of this litigation.”
There is no word on when the Supreme Court will respond to the redistricting challengers’ requests.
In the meantime, candidate filing connected to new statewide election maps is scheduled to continue through Dec. 17.