Opinion: Daily Journal

Is the Redistricting Case Over?

RALEIGH – Another day, another defeat for legislative leaders on redistricting.

Today a three-judge panel of the U.S. District Court in Washington rejected an attempt by North Carolina Democrats to invalidate legislative districts drawn by Johnston Superior Court Judge Knox Jenkins and to reinstate their 2001 gerrymander. The judges were all Democrats, appointed by Democratic presidents. In effect, they refused to overturn, after a one-day hearing, a decision by the North Carolina Supreme Court back in May that tossed out the gerrymander for ignoring a state constitutional rule against dividing counties in drawing legislative maps.

How did a federal trial court get into the position of possibly second-guessing a state supreme court? Normally high court rulings within states can only be appealed to the U.S. Supreme Court. One of many losses that state lawyers have racked up in this case was just such an attempt at appeal to the highest court in the land.

The Democrats’ strategy, though, was a back-door way of getting the case into a trial court they thought might be friendlier. What actually happened was that House Speaker Jim Black and Senate leader Marc Basnight prevailed upon the State Board of Elections to file suit in federal court to seek federal approval for Jenkins’ maps. The State Board didn’t really want the maps approved, of course, and actually hired Black’s own attorney, who helped with the 2001 gerrymander, to “defend” the Jenkins maps in court. The filing was nothing more than an excuse for Attorney Gen. Roy Cooper, Black, and Basnight to “intervene” in the case to ask the federal court to overrule North Carolina’s state courts.

It was unnecessary, as the federal court has now explicitly acknowledged by pointing to the fact that the U.S. Justice Department is nearing the end of its own preclearance action on the Jenkins maps. Technically, the federal court did not rule out a future decision favorable to the Democrats. But practically speaking, if Justice preclears the maps in the next few days, the case becomes moot and goes away.

Unfortunately, this case is not yet over, nor do we yet have certainty about when our election will be (and whether it will be meaningful, since a return to the 2001 gerrymander would make it virtually impossible for Republicans to compete). A separate case, filed in a North Carolina federal court, argues that the state court rulings violate the federal Voting Rights Act. A hearing in this case, filed by Republican attorney Nate Pendley (don’t ask), is scheduled for next Tuesday (see here).

Cooper and Basnight are now saying that this new lawsuit might still offer an opportunity to overturn the state supreme court. Perhaps, after next week, they’ll come up with another Hail Mary pass, and then another, and so on, until we all just forget about the possibility of ever having another legislative election.

Actually, if that means the current legislature goes away and never comes back, many North Carolinians might take the deal.