The judges raised the possibility of imposing new maps for the coming elections, even though primary elections have already been held.
They asked the parties in the case how to provide a remedy, but the plaintiffs — a consortium of Democratic voters and public-interest groups — said redrawing the lines before the elections would be impractical.
“After careful consultation, particularly with the institutional clients Common Cause, the League of Women Voters, and the North Carolina Democratic Party, plaintiffs have reluctantly concluded that — on the unique facts presented here — attempting to impose a new districting plan in time for the 2018 election would be too disruptive and potentially counterproductive,” their lawyers said in a brief filed with the court.
The state’s Republican legislative leaders had already filed an appeal with the U.S. Supreme Court and said they would ask the justices to issue a stay to keep the maps in place for November.
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 the plaintiffs had proved that “invidious partisan discrimination” had predominated in drawing 12 of the 13 districts.
He said the court was leaning against giving the North Carolina legislature another chance to draw the congressional districts.
Wynn proposed several unusual ideas: appointing a special master to draw new districts, holding general elections without party primaries, or even turning the November elections into primaries and holding the general election sometime before the new Congress convenes in January.
“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.
The panel did not indicate when it would issue a final ruling.
The judges were the first in the country to declare that a state’s congressional map was unconstitutional because of partisan gerrymandering. North Carolina’s legislative leaders were upfront about their partisan intentions.
Although the Supreme Court often invalidates plans because of racial gerrymandering, it has never thrown out a plan because of partisan gerrymandering.
In the past term, the justices considered a plan drawn by Democrats in Maryland and a Republican legislative map in Wisconsin, but did not reach the merits of those cases.
The Supreme Court is required to either affirm or reverse such redistricting decisions, so it will almost surely accept the North Carolina case at some point.
But it will be a different court that hears the case. Generally, the court’s conservatives have been skeptical that the judiciary has a role in policing redistricting maps for excess politics, while the court’s liberals have been more accepting of the theory.
The deciding vote had been Justice Anthony M. Kennedy, who never voted to overturn a state’s plan but held out the possibility that a plan could be so infected with politics that it would violate a voter’s constitutional rights.
But Kennedy left the court in July. And President Trump’s nominee to replace him, Judge Brett M. Kavanaugh of the U.S. Court of Appeals for the D.C. Circuit, is generally viewed as more conservative than Kennedy.
Trump himself weighed in on the North Carolina situation Friday, saying it is “very unfair to have an election in less than 60 days and they change the district on you.”