NC GOP Gerrymandering Case May Flip the House

Yesterday a three-judge federal panel ruled that Republican-drawn congressional districts in North Carolina have been gerrymandered in such a way that they violate the United States Constitution. The panel held that the districts were established by the GOP legislature for the purpose of favoring Republicans over Democrats, which is not a valid reason for delineating congressional districts.

The panel of judges also said that it may require North Carolina to come up with entirely new districts before the November elections. If that were to occur it could conceivably affect control of the U.S. House of Representatives.

In fact, if allowed to stand by the Supreme Court, yesterday’s decision could “flip” the House from red to blue, and allow Democrats to take control.

The three judges, in making their ruling, did say that they recognize the difficulty of the situation since primary elections have already occurred in the state. Thus each party’s candidates for the 2018 elections have already been selected. But the judges also said that they did not want to let voting take place in existing congressional districts because courts have twice have ruled that they violate constitutional standards.

North Carolina legislators are expected to ask the U.S. Supreme Court to intervene in the situation. The Supreme Court historically has not approved of actions by courts that take place so close to election days.

An interesting wrinkle is that because the Supreme Court has just eight members currently a tie vote will leave the lower court’s decision in place. This means that five of the current eight justices would have to rule against the three-judge panel’s finding, and that is unlikely.

Senate hearings on President Trump’s nominee to fill the open seat vacated by Anthony Kennedy with Judge Brett M. Kavanaugh will begin on September 4th.

The North Carolina gerrymandering case has been an extended saga involving several court challenges over the past few years. In 2016 a federal court struck down the legislature’s 2011 map as a racially-motivated gerrymander. After that, the North Carolina legislature passed a redistricting plan that left essentially the same districts in place but said their motivations were politics, not race.

The U.S. Supreme Court then told the federal court to take another look at the North Carolina case after the high court’s June decision in a Wisconsin partisan gerrymandering case, where it was held that those who brought that case did not have legal standing.

But Judge James A. Wynn Jr. of the U.S. Court of Appeals for the 4th Circuit, writing Monday for a special three-judge district court panel, said plaintiffs did have standing under the decision in Wisconsin’s Gill v. Whitford. He said this confirmed the judges’ views that the congressional districts were drawn with invalid political goals.

He said the court did not want to give the North Carolina legislature another chance to re-draw the congressional districts.

“We continue to lament that North Carolina voters now have been deprived of a constitutional congressional districting plan — and, therefore, constitutional representation in Congress — for six years and three election cycles,” Wynn wrote. “To the extent allowing the General Assembly another opportunity to draw a remedial plan would further delay electing representatives under a constitutional districting plan, that delay weighs heavily against giving the General Assembly another such opportunity.”

Wynn came up with several novel ideas, such as appointing a special master to draw new districts, holding general elections without party primaries or even turning the November elections into a primary and holding the general election sometime before the new Congress convenes in January.