U.S. Supreme Court Justice Antonin Scalia’s death, and the resulting 4-4 philosophical divide among the remaining justices, likely swung Chief Justice John Roberts’ decision not to issue a stay in North Carolina’s congressional redistricting case, say several political science professors who follow the electoral process.
The General Assembly’s decision substituting blatant partisanship for racial considerations into new congressional maps — in the interest of maintaining a 10-3 advantage for Republicans in the congressional delegation — is likely to face additional challenges in court, creating further turmoil and confusion for North Carolina voters, they say.
“The Supreme Court appears to have passed on granting a stay in the North Carolina appeal of a lower court ruling on its congressional maps because of the turmoil created by Justice Scalia’s death,” said David McLennan, a political science professor at Meredith College.
“It should be remembered that the justices are human beings, and many have formed deep bonds with Justice Scalia, and are grieving his passing,” McLennan said.
Chris Cooper, department head of political science and public affairs at Western Carolina University, said he doesn’t think Scalia’s death “has any impact on the court’s decision not to hear the North Carolina case.
“Nowhere in the Constitution does it say that there must be nine justices, the court is able to function with eight members, and there’s no reason to believe that the number of justices affected their decision,” Cooper said.
It is surprising that the Supreme Court allowed the new maps to go through this close to the election “when they have previously ruled [differently] in other states,” said Michael Bitzer, Catawba College provost and professor of politics and history. That deviates from the “Purcell Principle” the court previously applied to avoid election rule changes shortly before an election.
Bitzer thinks North Carolina’s request for a stay “was greatly impacted by the passing of Associate Justice Scalia.”
Roberts likely referred the state’s request to the full court, “and there either wasn’t enough support to stay, whether it was 4-4, or 3-5, or what, we really won’t know,” Bitzer said. “We really have no idea what the Supreme Court is thinking in declining to issue the stay.”
Andy Taylor, a political science professor at N.C. State University, offered another twist on the possibilities.
“Roberts thought the court’s going to be deadlocked anyway, so that would mean that the lower court’s decision is upheld 4-4,” Taylor said. So he declined to issue a stay or refer it to the full court in the belief that “You’ve got a great start on this, you’ve got a contingency plan, why don’t you just do that,” and allow the case to work its way through the normal court process.
All four agree the tumult bodes ill for voters and candidates.
While there is a degree of confusion any time electoral maps are redrawn, “midstream redistricting” is especially troublesome for voters, Taylor said.
And while the power of incumbency usually is a strong predictor of re-election, that dynamic is reshaped for Democratic Rep. Alma Adams of Greensboro, who was drawn out of her minority-based 12th District, and 13th District U.S. Rep. George Holding, whose district lines were moved about 100 miles west. Holding, who under the new map lives in the heavily Democratic 4th Congressional District, has announced he would file for election in the 2nd District, which is closer to his Raleigh home, challenging GOP incumbent Rep. Renee Ellmers.*
Adams’ district is now located entirely in Mecklenburg County, which may inspire Charlotte-based Democrats to try to unseat the freshman member of Congress.
“I would say that Renee Ellmers and George Holding are probably worse off” as they square off in the new 2nd district, Taylor said.
The decision allowing the lower court ruling to stand puts North Carolina into “electoral chaos with the real potential that thousands of votes cast with the 2011 maps being invalidated,” McLennan said.
“The real losers in this legal-legislative dispute are the voters of North Carolina. Many who do not follow the behind-the-scenes happenings of electoral politics will be confused as the candidates who appear on the June 7 ballot are not the ones who have been campaigning in their district prior to Feb. 19,” he said.
“Having a bifurcated primary system will almost certainly result in fewer people voting in congressional elections than otherwise would have voted in the March 15 primary. The state will also have the expense of conducting separate primaries,” McLennan said.
The “disarray question” is “incredibly important,” Cooper said.
“Voters don’t expect much out of elections, but they do expect that their votes will be counted, and that the people who they choose between represent the entirety of their choices,” Cooper said. “In this election, both of these suppositions may be wrong — at least for the congressional contest.”
Congressional candidates and incumbents will be challenged to adjust to the new electoral landscape, new challengers will enter the contests, and voters will be confused about which district they are in, and who the candidates are, Bitzer said.
For those who administer the elections, it’s a continuing nightmare of epic proportions,” Bitzer said.
The Republicans’ decision to remove racial considerations from drawing the new maps is a legal gamble.
“The General Assembly did not do North Carolina candidates or voters any favor by radically altering the congressional districts and publicly stating that they did not take race into consideration when drawing the new districts,” McLennan said. That could spark opponents to file another court case.
Although the Supreme Court removed the requirement of the 1965 Voting Rights Act for North Carolina and other Southern states to obtain Justice Department approval for new maps, or “preclearance,” the remainder of the act remains in force, McLennan said.
“I think we are in very uncharted waters when it comes to what happens next” as a result of eliminating racial considerations, Bitzer said.
“My belief is that trying to separate race from political behavior, especially from Southern black voters and the 95-96 percent allegiance to the Democratic Party, is still at the heart of the issue,” Bitzer said.
One of the plaintiffs might challenge these new maps, prolonging the uncertainty, he said. Or the three-judge panel could allow the maps to be used, and then review them after the November election.
“Indeed, North Carolina has seen this happen in the past with changes to maps from one cycle to another, but this is very chaotic for everyone,” Bitzer said.
The Supreme Court “has been fairly clear that it is perfectly acceptable to consider partisanship when drawing district lines,” Cooper said, but not race.
*Editor’s note: This story was corrected after initial publication to note that Rep. George Holding lives in the newly drawn 4th District rather than the 2nd District.