News: CJ Exclusives

GOP confident federal justices will nix 2017 NCGA elections

With case set for Jan. 19 conference, Republicans say justices are likely to hear appeal, making special elections this year impossible

The U.S. Supreme Court put a temporary halt to a three-judge panel’s order to hold special legislative elections later this year, and the top election official in the N.C. House thinks the justices eventually will toss out the off-year election plan.

Rep. David Lewis, R-Harnett, said he was delighted by the Supreme Court’s stay. Lewis is chairman of the House Rules Committee and co-chairman of the House Elections Committee.

“We believed in 2011 and continue to believe today that we followed the law in drawing legislative districts,” Lewis said.

“Only one court has ruled against us,” Lewis said, referring to the three-judge panel. “It went as far as to say that we would have to cut recently elected members’ terms short, spend millions of dollars to hold elections for members of the General Assembly in 2017, instead of letting them complete their terms in 2018. I think the Supreme Court recognized how absurd this was and stood up to an activist judge.”

The three-judge panel was made up of U.S. 4th Circuit Judge James Wynn and U.S. District Court Judges Thomas Schroeder and Catherine Eagles. In August 2016, the three judges found that race was the predominant factor in the 2011 drawing of maps for 28 N.C. Senate and House districts.

In November 2016, the panel set the March 15 deadline for redrawing legislative districts and required special elections this fall in districts where boundary lines were redrawn.

The Supreme Court’s order blocks the panel’s action while it is on appeal. Supreme Court justices will hold a conference on Jan. 19 and take up the issue of whether to hear the appeal later this year. The high court’s action also blocked the lower panel’s order for the General Assembly to redraw legislative districts by March 15.

Supreme Court procedure requires at least five justices to agree on a stay — or delay — of a lower court’s order, but only four justices are needed to agree to take up a case on appeal.

If the Supreme Court accepts the appeal, justices could hear the case later in the spring, or potentially hold it over until later. The appointment of a new justice to fill the vacancy left by the 2016 death of Justice Antonin Scalia also could affect the court’s timing.

Lewis said he felt confident the 2011 maps will prevail in the nation’s highest court.

“The plaintiffs, which amount to a bunch of liberal activist groups, have been executing their plan as defined in the Blueprint NC memo, which is to litigate us into submission.”

In late 2012, Blueprint NC, an umbrella group for liberal organizations, circulated a memo on how to counter the Republican leadership in the General Assembly and the governor’s office. One recommendation called on liberal groups to “Mitigate legislative attacks on progressive values and set up legal challenges.”

At the influential SCOTUSblog, attorney and former UNC-Chapel law instructor Amy Howe noted that when hearing oral arguments last year in another lawsuit involving congressional districts in North Carolina and Virginia, “the justices seemed to be tired of redistricting cases.”

Howe added, “there is no way to know whether [Tuesday’s] order by the Supreme Court … received the support of all eight justices or whether (as is more likely) some justices simply declined to record their dissent from the order publicly.”

General Assembly leaders applauded the justices’ order. “We are grateful the U.S. Supreme Court has quashed judicial activism and rejected an attempt to nullify the votes of North Carolinians in the 2016 legislative elections,” Senate leader Phil Berger, R-Rockingham, and House Speaker Tim Moore, R-Cleveland, said in a joint statement shortly after the Supreme Court’s action on Tuesday.

Anita Earls, executive director of the Southern Coalition for Social Justice, which represents the plaintiffs who challenged the maps, said she is confident the lower court’s opinion will be upheld.

“Today’s action just puts everything on hold while the U.S. Supreme Court considers the appeal of whether the district court was correct to order special elections in 2017,” Earls said Tuesday. “On behalf of our clients, we continue to trust that the district court’s ruling will be upheld and new districts ultimately will be drawn that are not based on race.”