Attorneys close to legislative Republicans told Carolina Journal special legislative elections in 2017 “are almost certainly off the table.”
The attorneys think the U.S. Supreme Court won’t lift a stay issued Jan. 10 in the so-called Covington case on legislative redistricting. The court is in “a wait-and-see mode right now, and has not granted very many applications or taken much action on pending cases. This is very likely in anticipation of adding a ninth justice to the court in the next couple of months,” the attorneys said.
The court currently has a vacancy due to the death last year of Justice Antonin Scalia. President Donald Trump has promised to nominate a successor quickly.
The stay blocked a lower court order requiring North Carolina to hold a special legislative election this year until the justices decide to hear the appeal. A three-judge panel in August concluded that 28 legislative districts violated the 1965 federal Voting Rights Act. The Covington case was on the Supreme Court’s schedule for discussion during a Thursday conference, but the justices took no discernable action.
Officials should do nothing to prepare for a special election, said Hans Von Spakovsky, senior fellow at the Heritage Foundation who specializes in judicial matters.
“If I was … in the North Carolina legislature I wouldn’t be doing anything the lower court directed because the case has been stayed. Depending on what the Supreme Court decides, they may not have to do any of that,” Von Spakovsky said.
“They’re just going to have to wait until they get a decision one way or the other from the court. They’ve done everything they can at the moment. They’re just going to have to be patient,” Von Spakovsky said.
Joseph Kyzer, spokesman for House Speaker Tim Moore, R-Cleveland, said the speaker’s office doesn’t expect the Supreme Court to lift the stay “since their stay was issued without dissent. … No attorney I’ve spoken to thinks that’s a possibility.”
The federal judges considered the legislative maps drawn in 2011 an example of racial gerrymandering. But the panel didn’t force new maps to be drawn last year because its ruling was handed down so close to the election that new maps would have caused logistical nightmares.
Von Spakovsky put little value on the lack of an announcement after Thursday’s conference.
“[The justices] may not have made a decision at the conference. They may have put it off. So if we don’t hear anything it doesn’t mean that we may not still get a decision down the road,” he said.
Alternatively, he said, some of the justices may not have decided whether they want to take the case and want to hear more from those who do.
Von Spakovsky said Supreme Court experts have experience in prior cases “where the same case kept being brought up at different conferences, one after another, and it took them months before they made a decision on what to do.”
The Supreme Court “could affirm the case. It could reverse the case without any further arguments. Or it could accept the case and say we want arguments,” Von Spakovsky said.
Attorneys said the Supreme Court stay came after “aggressive briefing” by the state “to protect the people’s choices at the November 2016 general election.”
They noted that even though the court is split 4-4 along ideological lines, no dissent was listed in the stay. This is important because at least five justices must support a stay before it is granted.
Two Covington decisions are on appeal before the Supreme Court. The first appeal dealt with whether the electoral maps were drawn constitutionally. That appeal has been fully briefed.
“Even if the court had decided to act on the appeal, that action likely would not have affected the stay granted in the second track of appeal,” the attorneys said.
The second appeals the order that the legislature draw new districts before March 15 and hold special elections in fall 2017. That appeal asks, “Is the extraordinary remedy of a special legislative election appropriate in this case?” the attorneys said.
It’s likely to be April or May before the Supreme Court could be briefed fully on the second appeal.
“By then, it would be astounding if the high court directed the legislature to draw new maps in time for 2017 primary or general elections,” the attorneys said. “Based on the timing of the appeal procedures for both decisions, the legislative special election appears off the table.”