A Virginia congressional redistricting case expected to be argued March 21 before the U.S. Supreme Court could suggest the eventual outcome of North Carolina’s similar congressional redistricting dispute, a nationally recognized election law expert says.
Richard Hasen, a professor at the University of California-Irvine School of Law, has been following North Carolina’s Harris v. McCrory case in which a three-judge federal panel invalidated the state’s 1st and 12th congressional districts as unconstitutional racial gerrymanders.
The state is appealing that ruling to the U.S. Supreme Court.
“There will be briefings and arguments later on,” probably in the next court term that opens in October, Hasen said, “and before that there will be a decision likely in the Virginia case raising similar issues. So we should have a better sense … by June about where these kinds of claims stand.”
The federal district court panel ruled that mapmakers packed the 1st and 12th districts with minority voters, diminishing the impact of black voters in other districts with the intention of creating safe GOP districts. That violates the Equal Protection Clause of the 14th Amendment, they ruled.
The North Carolina and Virginia cases are similar “in the sense that they both involve states where minority plaintiffs and Democrats have accused Republican legislatures of taking race too much into account, and pretending not to do so in order to comply with the Voting Rights Act,” Hasen said.
Opponents contend it is “basically a Republican gerrymander under the guise of complying with the Voting Rights Act,” he said.
“The Supreme Court last year in the Alabama racial gerrymandering case seemed to open up the door for these kind of claims,” Hasen said.
The Supreme Court ruled 5-4 in the Alabama case that, among other things, packing a district with blacks makes it less likely they can elect a preferred candidate of choice in districts from which minorities were removed.
The ruling raised major difficulties for distinguishing between race and party when defending new electoral lines because blacks’ political affiliation is near universally Democratic.
In North Carolina, Republicans filed an emergency appeal to the Supreme Court in early February to stay the lower court decision, saying it was too close to the March 15 primary, and would create confusion and chaos. The Supreme Court refused to halt the order.
“I wouldn’t over-read too much into the stay because we don’t have a lot of information. We don’t know if it was a 4-4 split on the court, or 0-8. All we know is there was no majority to issue a stay,” and the case will proceed in Supreme Court, Hasen said.
Without the stay, the General Assembly was compelled to redraw congressional maps to comply with the lower court. In a two-day special session of the legislature Feb. 18 and 19, lawmakers designed new maps without taking race into account, saying they wished to avoid the racial elements the three-judge panel cited. The congressional primary was moved back to June 7, while other primary contests will be held as scheduled March 15.
The Harris plaintiffs must file their objections to the new maps no later than Monday. The state would have until March 7 to file a response to the objections, after which the plaintiffs would file an additional response, and, presumably, a hearing would be set.
Democrats and members of the state’s Legislative Black Caucus bitterly opposed eliminating race as a factor in the new maps. They said the majority Republicans were tempting their luck with the federal court by going that route.
“I don’t think [the Republicans’ strategy was] necessarily a slap in the face,” Hasen said. “I would say that it does raise an issue of the potential for there to be a mistake in complying with the Voting Rights Act, because if you don’t look at racial data at all it’s hard to demonstrate that you’ve complied with the Voting Rights Act, which requires that you take a look at race.”
Republicans’ removal of race as a factor in redrawing the lines “certainly solves the problem of a racial gerrymander,” but that likely will be argued as a violation of the Voting Rights Act, Hasen said.
“The extent to which North Carolina’s election laws have made it to the courts really makes your state a standout compared to other states — much more litigation coming from your state,” Hasen said. “It would be nice to get through a round of redistricting without ending up in the Supreme Court.”
It’s unclear if the Harris case will reach the U.S. Supreme Court. The state has until April to petition the Supreme Court to accept its appeal of the lower court ruling. The court might rule before it adjourns in June if it will accept the appeal, and set the case for full briefing and arguments in October, when the court returns.
“It looks like the new districts are going to go into effect, at least for the time being,” said David Rohde, a Duke University political science professor specializing in American politics.
He declined to say whether he believed the three-judge panel reached the proper legal conclusion in finding the 1st and 12th districts were constitutionally forbidden racial gerrymanders.
But the end result is “going to be very consequential in political terms, and it may be very consequential for one or two sitting members of Congress” who were drawn out of their districts in the new maps, “but given the balance, one or two seats isn’t going to make that much difference,” Rohde said.