Opinion: Daily Journal

A ‘scorecard’ for North Carolina’s redistricting battles

When trying to make sense of North Carolina’s legal fights over electoral redistricting, one is reminded of an old line from baseball stadium vendors: “You can’t tell the players without a scorecard.”

Last week’s U.S. Supreme Court ruling in Cooper v. Harris highlighted the need for some sort of scorecard. Tuesday’s high court order in Dickson v. Rucho added another dimension to the story.

A scorecard would help people sort through the various cases that could affect the way N.C. voters will select their elected representatives in the years ahead.

In Cooper v. Harris, a split high court threw out two of North Carolina’s 13 congressional districts as examples of illegal racial gerrymandering. So the state will have to go back to the drawing board and replace those districts, right?

Well, no. The impact of the Harris ruling remains to be seen.

Justin Levitt, a constitutional law professor and deputy assistant attorney general in the Obama administration’s Justice Department, reminded us with an Election Law Blog entry that as many as six other ongoing legal battles could affect North Carolina’s congressional and legislative election maps. We saw action in one of those battles this week.

The Cooper v. Harris ruling represented just one milestone. Supreme Court justices clarified in that case that they will not accept the 1st and 12th congressional districts North Carolina used for the 2012 and 2014 elections. (As three dissenting justices noted, the court majority trashed an existing precedent in order to justify its rejection of the 12th District.)

But North Carolina already had ditched the disputed 1st and 12th districts by the time of the 2016 elections. To comply with the lower-court ruling that the Supreme Court just affirmed, the General Assembly completely redrew all 13 districts in February 2016, including a shift of the 12th from a long snakelike district hugging the Interstate 85 corridor into a much more geographically compact district within Mecklenburg County.

Like the maps used in 2014, the new maps employed in 2016 elected a congressional delegation of 10 Republicans and three Democrats. Republican lawmakers who drew the latest maps set out that 10-3 GOP majority as a specific goal for their redistricting plan.

Three of the six ongoing legal battles identified in Levitt’s blog entry deal specifically with the 2016 congressional election maps.

First, there’s the matter of Harris v. Cooper. Yes, this is basically the Cooper v. Harris case with the names reversed. Why? Those who challenged the 2012 and 2014 congressional districts — and won at both the trial court and Supreme Court level — are still fighting North Carolina. They argue that the 2016 election maps violated the lower court ruling against the state.

The judges in the original case disagreed. They said the General Assembly’s 2016 maps complied with their order. Their ruling prompted the original plaintiffs to appeal to the U.S. Supreme Court, long before last week’s high court decision.

The justices had been scheduled to address the appeal last week, but they have decided to seek more information instead.

Lawyers for and against the 2016 maps must file paperwork by June 6 with arguments addressing the following questions: First, do the plaintiffs in the original racial gerrymandering case have legal standing to challenge the new maps as illegal partisan gerrymandering? Second, if they have standing, can they appeal the lower court’s order rejecting their claims?

The Supreme Court’s term wraps up at the end of June. At about the same time, a federal court is scheduled to take up two other lawsuits linked to North Carolina’s 2016 congressional maps. Led by Common Cause and the League of Women Voters, those two suits specifically challenge the current maps as examples of illegal partisan gerrymandering.

The U.S. Supreme Court never has rejected a redistricting plan based on partisan grounds, but a 2004 Pennsylvania case suggested that a majority of the court might be willing to take that step depending on the circumstances.

Confused yet? If not, just wait.

Three other ongoing redistricting fights could affect N.C. elections. The first two have the same name: North Carolina v. Covington. One dispute involves the state’s appeal of a lower court ruling throwing out more than two dozen state legislative districts as examples of illegal racial gerrymandering. The second involves a related appeal of the lower court’s order that the General Assembly draw new legislative maps for a special election this year.

The Supreme Court has blocked the special election, but justices have not ruled on the underlying case. It’s still possible that the high court could restore the lower court order calling for a 2017 election.

The final battle involves Dickson v. Rucho, a case that started in state court. In Dickson, the N.C. Supreme Court upheld both the 2012 and 2014 congressional maps and the current legislative maps. Challengers appealed to the U.S. Supreme Court, which called on its state-level counterpart to take another look at the case in light of a federal precedent in an Alabama redistricting lawsuit. When state justices reaffirmed their initial ruling, Dickson v. Rucho headed back to Washington.

Now Washington has sent the case back to Raleigh. The U.S. Supreme Court wants North Carolina’s highest court to consider Dickson for a third time based on the Harris ruling.

It’s possible that either the Harris case or a Covington ruling from the nation’s highest court might prompt North Carolina’s justices to change their minds about the Dickson case.

But as the last paragraph demonstrates, it’s hard to keep these issues straight without a scorecard.

Mitch Kokai is senior political analyst for the John Locke Foundation.