In a ruling that could delay or cancel the state’s March 15 primary election, a panel of three federal judges on Friday ruled that North Carolina’s 1st and 12th Congressional Districts violated the federal Voting Rights Act, giving the General Assembly two weeks to come up with new maps satisfying the law.
But a longtime legislative insider suggests that an expected appeal, asking the U.S. Supreme Court to stay the ruling and allow the primary to take place as scheduled, has a good chance of succeeding — in part because thousands of absentee ballots already have been mailed and several hundred have been cast.
Sen. Bob Rucho, R-Mecklenburg, and Rep. David Lewis, R-Harnett, who chair the legislature’s redistricting committees, vowed an immediate appeal to the U.S. Supreme Court.
In a joint statement issued Friday, Rucho and Lewis said:
We are surprised and disappointed by the trial court’s 11th-hour decision that throws an election already underway into turmoil. Should this decision be allowed to stand, North Carolina voters will no longer know how or when they will get to cast their primary ballots in the presidential, gubernatorial, congressional, and legislative elections. And thousands of absentee voters may have already cast ballots that could be tossed out. This decision could do far more to disenfranchise North Carolina voters than anything alleged in this case. We are confident our state Supreme Court made the right decision when it upheld the maps drawn by the General Assembly and approved by the Obama Justice Department, and we will move swiftly to appeal this decision.
Meantime, the General Assembly’s former special counsel Gerry Cohen — who was involved in redistricting disputes from the inside in the 1980s, 1990s, and 2000s — predicted on Twitter that the Supreme Court is likely either to stay the ruling, letting the primary go on as scheduled, or require minor changes in the racial compositions of the districts and shift some black voters in Durham County (1st District) and Guilford County (12th District) to the 6th District but not force entirely new maps for this year’s election cycle.
In addition, University of California, Irvine law professor and election law expert Rick Hasen noted on his Election Law Blog that the “Supreme Court has been very wary of allowing court changes to election rules just before the election.”
The maps were approved in 2011 and used in the 2012 and 2014 elections. But the judges ruled that a lawsuit filed in 2013 by three voters — two from Mecklenburg County and one from Durham County — proved that the General Assembly used race as the main factor in drawing the 1st and 12th districts and that no elections could be held there until the maps were redone in a way that satisfies the law.
The three judges issuing Friday’s decision are 4th U.S. Circuit Court of Appeals Judge Roger Gregory, who was named as a recess appointment by President Clinton and then nominated as a permanent member of the court by President George W. Bush; U.S. District Court Judge Max Cogburn, an Obama nominee who earlier struck down the state’s constitutional amendment banning same-sex marriage; and U.S. District Court Judge William Osteen Jr., another appointee of George W. Bush.
Throughout the legal battle, Republican elected officials and their attorneys have argued that their primary concerns were maximizing the number of Republicans elected to Congress while complying with the Voting Rights Act.
Democrats currently outnumber Republicans in voter registration 40 percent to 30 percent (with 28 percent unaffiliated), but Republicans hold 10 of the state’s 13 congressional seats.
The U.S. Supreme Court has given states a great deal of leeway in letting the majority party draw voting districts to enhance their advantage, but states where black voters were disenfranchised during the Jim Crow era (including North Carolina) face special scrutiny over the racial composition of their voting districts.
The three judges ruled that the 1st District, represented by Democrat G.K. Butterfield, was drawn primarily to crowd as many black voters as possible into the district, making race, rather than partisan advantage, the defining characteristic of the district. Court precedents have stated that the racial characteristics of voters can be only one of many factors used in drawing district lines.
Osteen, however, disagreed with his colleagues that race was the primary factor in the design of the 12th District, currently represented by Democrat Alma Adams.
Cohen suggested that the federal justices may let the primary go on as scheduled. The State Board of Elections reports that more than 8,000 ballots have been requested and more than 400 returned. Cohen, who lives in the 13th District, said he has mailed his primary ballot. In a tweet, elections board attorney Josh Lawson urged voters to continue applying for and casting absentee ballots for all races.
Carolina Journal will continue updating this story as it unfolds.