Doubling down on redistricting

Doubling down on redistricting

- in Law and the Courts

A million dollars and counting. That’s how much the Republican State Leadership Committee has funneled into the state Supreme Court election so far, hoping to secure Justice Paul Newby’s seat there and ensure Republican control of the General Assembly for years.

The committee – which has been pulling in millions these past few months in support of its mission to keep Republicans in control of state legislatures nationwide — is betting that if Newby remains on the court, he’ll vote in support of Republican-drafted redistricting plans when cases challenging those plans land in the Supreme Court.

The odds on that bet may be long, though. Time, and the law, may not be on the RSLC’s side.

The wheels of justice are slow

The redistricting case that has the RSLC digging deep got its start in Nov. 2011, shortly after the General Assembly approved Republican-drafted plans. A collection of individual voters and organizations filed two separate complaints, alleging that the legislators secretly drafted the plans — with help from long-time Republican mapmaker Tom Hofeller — in a way that diluted the African-American vote in several districts across the state.

But that challenge is not on a fast track. The two cases have since been consolidated, but the parties have been hung up by a dispute over the production of emails and other documents between the legislators and their attorneys. The legislators resisted turning those records over, but the trial court ordered them produced. The Supreme Court then agreed to hear that dispute on an expedited basis, with argument held on July 10, but there’s yet to be a decision.

In the meantime, the challengers are seeking judgment on certain of their claims, and the court has entered a schedule projecting a ruling or a trial by February 2013, according to Edwin Speas, who represents the plaintiffs in one of the consolidated cases. If that schedule holds true, it would just mean the end of round one.

The last go-round of redistricting challenges in 2001, which initially sped from complaint to Supreme Court ruling in just five months, later dragged on for years. Several attempts at revision of the plans occurred and further litigation followed, including the case out of Pender County that landed in the U.S. Supreme Court in 2009.

To the point: It may take years for the case to reach Justice Newby, and if and when it does, that might not be the last word.

The bench has a poker-face

Experienced litigators know that judges are unpredictable. All too often those lawyers have stood before a questioning court and sensed momentum in their favor, only to later get an adverse ruling they didn’t see coming. Chief Justice John Roberts’ ruling in the Affordable Care Act case is a prime example.

Judges do bring to the bench their own particular philosophies and partisan bent, along with life experiences that may influence how they rule, but those innate biases can’t change the facts or the law presented in any particular case.

And often though personal preference might push them to rule in a certain way, the law they’re bound to uphold pulls them in the opposite direction.

The RSLC may expect Newby to support the Republican plan in exchange for its dollars, or simply hope that he’ll align with his party out of political allegiance – either way, it may have overlooked the very nature of judicial deliberation.

“Everybody on both sides is being grossly unfair to both candidates, and frankly to the members of the court,” said former justice Robert Orr, who spent ten years on the state Supreme Court and participated in the 2002 redistricting decision – agreeing with the majority on the unconstitutionality of the 2001 plan but dissenting on the court’s proposed remedy. “There’s a perception that the decision on the constitutionality of the redistricting plan is a done deal depending on who gets elected. And that I think is neither true nor fair to the judges. I mean, gosh, does everybody go in understanding the political consequences – sure. Does everybody feel a certain amount of discomfort because of that – sure. But I do believe that regardless of the perspective the judges bring to it, and whether its Justice Newby or Judge Ervin, they will look at what the three-judge panel decides, and they will then try and make a vote based on the law and the Constitution.”

The Court has been here before

The RSLC may have also overlooked the practical posture of this case in light of prior redistricting decisions. In order for the RSLC to get what it hopes it’s buying in the current redistricting dispute, the justices might have to do an about-face on precedent they set in the 2001 dispute. There the court relied heavily on the state constitution’s “whole county provision” — that counties should not be divided in the creation of a district – and made clear that, in order to pass constitutional muster, a plan has to comply with that provision to the maximum extent possible without violating federal law.

Here those challenging the Republican plan claim just that – that it divides even more counties than the plan rejected by the court in 2002.

“There is a long-standing tradition of respecting county lines during the redistricting process,” Justice I. Beverly Lake wrote in the 2002 opinion. Two justices on the current court, Robert Edmunds and Mark Martin, joined in that opinion. Getting them, and a majority of the court including Newby, to part company with that tradition in the face of facts dictating otherwise might be a bit like pushing a rock up a hill.

Ironically, then, it could be the words of Republican justices in 2002 that doom the Republican plan now.

Newby could step out

Of course, Newby could also recuse himself from hearing the redistricting case because of the Republican money being funneled into a partisan dispute. That’s a scenario the RSLC has likely not considered.

And some have already argued that he should, citing a 2009 U.S. Supreme Court case involving the chairman of the Massey Coal Co. in West Virginia. There, following a $50 million verdict against Massey, the chairman contributed $3 million in support of a state supreme court justice who was ultimately elected and who later joined with the majority to reverse the verdict. In a 5-4 ruling, the Supreme Court held that the justice in that case should have recused himself, given the personal stake the chairman had in the case at the time of his campaign contributions.

“We conclude that there is a serious risk of actual bias . . . when a person with a personal stake in a particular case had a significant and disproportionate influence in placing the judge on the case by raising funds or directing the judge’s election campaign when the case was pending or imminent,” Justice Stephen Kennedy wrote for the majority there.

But can that ruling be stretched to apply to political parties contributing to judicial elections, in the hopes of swaying votes on an issue affecting the citizenry at large? There’s an argument for that, and it would be an interesting one to wind its way to the U.S. Supreme Court, where the justices would be forced to confront what their Citizens United decision has wrought.

For now, though, that too is just speculation in a case destined for a long run.

Only one question is likely to be resolved soon: Newby v. Ervin. For the RSLC, either way, it could be the end game.

(Phillip Strach and Thomas Farr, who represent the legislators in the pending case, were contacted but could not comment in time for this story).

About the author

Sharon McCloskey, former Courts, Law and Democracy Reporter for N.C. Policy Watch, writes about the courts and decisions that impact North Carolina residents. McCloskey also wrote for Lawyers Weekly and practiced law for more than 20 years. Follow her online at or @sharonmccloskey.