RALEIGH, N.C. — North Carolina Republicans plan to ask the Supreme Court to “step in” and preserve the state’s congressional map ahead of November’s midterm election, after a lower court ruled that the current map was unconstitutional.
“What the court suggests is simply impossible,” state House Speaker Tim Moore and state Senate President Phil Berger said in a statement Tuesday. “[We’re] not aware of any other time in the history of our country that a state’s congressional delegation could not be seated, and the result would be unmitigated chaos and irreparable voter confusion.”
That confusion is the result of a lawsuit brought by voting advocates against the GOP-dominated General Assembly over maps the court ruled disenfranchise Democrats.
In a 2-to-1 decision written by Judge James A. Wynn Jr., a special judicial panel found Monday that the map’s partisan slant violated the First Amendment and the Constitution’s guarantee of equal protection under the 14th Amendment.
“The Constitution does not allow elected officials to enact laws that distort the marketplace of political ideas so as to intentionally favor certain political beliefs, parties, or candidates and disfavor others,” Wynn wrote.
The Republican-drawn maps, which have created a 10-3 Republican delegation in a state that voted for President Trump by just 2.6 percentage points, have been challenged in court multiple times this decade. In 2016, courts forced Republicans to tweak the maps after determining that their redistricting commission had discriminated against black voters.
The new lawsuit was brought by Common Cause and the League of Women Voters, nonpartisan groups that have rallied against maps that pack voters into gerrymandered districts.
“This decision is an important step towards ensuring all voters’ voices are heard,” said Janet Hoy, co-president of the League of Women Voters of North Carolina.
The shape of North Carolina’s districts has ramifications outside the state, potentially determining which party controls Congress in 2019. The current map splits the strongly Democratic city of Asheville into two Republican-leaning districts, held by Rep. Patrick T. McHenry and Rep. Mark Meadows — one a member of
the House leadership team, the other the leader of the conservative House Freedom Caucus. Previous maps that kept Asheville intact made it the center of a Democratic-leaning district.
A different map could also complicate Republican efforts to hold the 2nd, 9th and 13th districts, all of which backed Trump by around 10 points in 2016. All include some increasingly Democratic suburbs, but they have stayed Republican because conservative rural areas were roped in.
Monday’s court victory was applauded by Democrats, who see more opportunities under a new map.
“Right now, millions of people across North Carolina are not being heard because politicians rigged the system to benefit themselves at the cost of the people they’re supposed to represent,” said Dan McCready, the Democratic nominee in the Charlotte-based 9th District.
The timing, however, poses a serious problem for Republicans. Early voting was set to begin on Oct. 17, leaving just a few weeks for the state to create new maps or for a court-appointed master to draw them. A similar situation unfolded in Pennsylvania this past spring, when a court struck down a Republican map and drew a new one — more compact and competitive — when the GOP-run legislature and Democratic governor could not strike a deal.
In Pennsylvania, the spring primary was slightly delayed to let candidates file in the new districts. But with little time left before November, some in North Carolina have proposed replacing the November midterm with a primary election and paying for a new general election a few weeks later. If the House hangs in the balance — Democrats need to flip 23 seats to take over — a determination of who holds the chamber could be delayed.
“If it is possible to redraw the districts so we can have constitutional districts for the first time this decade, then I hope the court will do it, even if it means that the General Assembly will have to pay for a December election,” said state House Minority Leader Darren Jackson. “Otherwise, the Republicans are rewarded for bad behavior.”
Republicans have reeled at the suggestion of a delay. Earlier this year, the Supreme Court punted on two lawsuits against partisan gerrymanders, one that favored Republicans and one that favored Democrats. North Carolina Republicans, who are simultaneously facing legal challenges to get constitutional changes on the ballot this year, said the high court would probably put a stay on the order.
“This order would launch our elections system into mass chaos, and only serve to achieve partisan goals just 10 weeks before the midterm elections,” redistricting commission leaders Ralph Hise and David Lewis said in a statement. “We expect that Judge Wynn’s opinion will meet the same fate at the Supreme Court as his failed effort to force a special election on voters last year.”
But the retirement of Justice Anthony M. Kennedy has complicated matters. Kennedy provided a fifth vote against acting on the gerrymandering lawsuits; with his seat vacant, the court could deadlock, leading to a 2018 election with new maps or a delayed election.
It’s not clear when Kennedy’s seat will be filled. President Trump’s nominee, Brett M. Kavanaugh, is seen as a likely vote to preserve partisan gerrymanders, and his confirmation hearings begin on Sept. 4. Senate Republicans hope to seat him weeks before the midterm elections.
“I’ve got confidence in the folks down there that they will sort it out,” U.S. Sen. Thom Tillis (R-N.C.) said Tuesday, referring to the state legislature.
North Carolina’s constitution empowers the legislature to draw all electoral maps, with no input from the governor. That leaves no role for Gov. Roy Cooper (D), who has spent much of his term battling Republicans in court over attempts to shift more powers from his office.
The many legal challenges have already complicated the November election. The process of printing ballots, which was set to start by now, was delayed as the fate of some ballot questions went to court.
Democrats had portrayed those measures, which would give Republicans more control over the state elections board and judicial appointments, as power grabs that should be rejected by voters.
“Why are Republicans afraid of the voters they claim they want to represent?” Eric H. Holder Jr., chairman of the National Democratic Redistricting Committee, asked in a statement. “Fairness, not partisanship, should control the process of redistricting.”
The court’s lengthy decision on the partisan map suggests the state could hold elections on the normal schedule if the matter is handled quickly.
“Were this Court to order the State to conduct a general congressional election without holding primary elections, that would be consistent with the General Assembly’s policy preference as to at least some offices,” Wynn wrote.
President Trump, who criticized Pennsylvania’s judge-drawn electoral map, has not commented on the North Carolina standoff. He will be in the state Friday to raise money for Republican candidates in the 9th and 13th districts.
Weigel reported from Washington and Ross from North Carolina. Gabriel Pogrund contributed to this report.