The nation’s highest court handed down its third decision in three weeks regarding a North Carolina racial gerrymandering case — North Carolina v. Covington . This time, justices affirmed that 28 state House and Senate districts were unconstitutionally racially gerrymandered when Republicans drew new maps in 2011 but sent back to the lower courts a remedial order for special elections to be reconsidered.
Republicans have been put on notice that they cannot pack black voters into districts, but they won’t necessarily have to hold a special election later this year – though that decision will ultimately be in the hands of the lower court.
Rick Hasen, a professor at the University of California Irvine School of Law who authors Election Law Blog, wrote in an analysis  of today’s decision that the lower court could conduct a new hearing and issue a more nuanced order that still puts special elections in place for 2017.
“That will be much harder, now that we are in the middle of 2017, but it is not impossible,” he wrote. “If the lower court orders it, North Carolina may be back before the Supreme Court again seeking a new stay (full employment for NC election lawyers continues!).”
The U.S. District Court for the Middle District of North Carolina ordered in November  that the state draw new maps and hold a special election this year.
“While special elections have costs, those costs pale in comparison to the injury caused by allowing citizens to continue to be represented by legislators elected pursuant to a racial gerrymander,” the order from the court states.
The U.S. Supreme Court earlier this year issued a stay halting that special election remedy while it reviewed Covington. The order today lifts that stay and vacates the remedial order, sending it back to the lower court for further proceedings.
The court’s three-page order  (beginning on Page 10) states that the District Court didn’t undertake the right analysis in the case when issuing its remedy and instead “addressed the balance of equities in only the most cursory fashion.”
“That minimal reasoning would appear to justify a special election in every racial-gerrymandering case — a result clearly at odds with our demand for careful case-specific analysis,” the order states. “For that reason, we cannot have confidence that the court adequately grappled with the interests on both sides of the remedial question before us. And because the District Court’s discretion ‘was barely exercised here,’ its order provides no meaningful basis for even deferential review.”
Both parties in Covington wrote briefs in the last two weeks  about whether the Supreme Court should still order the special elections. The order today was unanimous.
Anita Earls, Executive Director of the Southern Coalition for Social Justice  (SCSJ), said the order reaffirms that her clients in Covington and the voters of North Carolina are entitled to have fair legislative districts that are not racially discriminatory.
The lower court will now have a chance to re-establish timelines for drawing new districts and holding state legislative elections.
“The court previously called for holding elections later this year in newly drawn districts,” Earls said. “We think there is still time to implement special elections in the impacted districts, and we will do everything we can to make sure that happens. Many North Carolinians have been participating in unfair elections in racially gerrymandered districts for far too long. It’s time to fix this problem.”
Click To Tweet 
Legislative leaders, Senate President Pro Tem Phil Berger and House Speaker Tim Moore, did not return an email for comment about the order and have not yet publicly responded.
Still pending at the U.S. Supreme Court is Harris v. Cooper , a partisan gerrymandering challenge to the remedial congressional map adopted by the General Assembly in February 2016 after its original 2011 map had been struck down as a racial gerrymander.
The Supreme Court affirmed two weeks ago  in Cooper v. Harris  that the 2011 map was indeed a racial gerrymander. It now has to decide in Harris whether the appellants have standing to challenge the remedial map as a partisan gerrymander and whether a lower court’s order denying objections to the remedial map are appealable.
Harris was distributed for conference this week, but as North Carolinians saw with Covington, it can take a while for an answer from the court.
There is also a partisan gerrymandering case out of Wisconsin that is pending at the Supreme Court and scheduled to be discussed at a conference this month, which could affect the timing of a decision.
Last week, the Supreme Court sent Dickson v. Rucho , another racial gerrymandering case that was pending, back to the lower court in light of justices’ opinion in Cooper.
Dickson is one of the oldest redistricting cases and challenges North Carolina’a 2011 state legislative and congressional district maps. It originated in claims that the state in drawing the maps violated state and federal law not only by racially gerrymandering districts, but by splitting counties and disregarding traditional redistricting principles, according to a description at the Brennan Center for Justice.
Other factors that could affect special elections
There is at least one bill pending that legislators could use to try to make an argument that a special election remedy would not be possible.
Senate Bill 655 moves the date when primary elections in the state are to be held from May to March. The bill has already passed the Senate and is expected to be voted on Tuesday in the House.
The House Committee on Elections and Ethics Law reported the bill favorably last week without any debate.
The state has already laid out its argument that special elections this year would not be possible in its supplemental brief  to the U.S. Supreme Court after the Cooper decision.
In the brief, the state claims that with regard to special elections, “an extraordinarily expedited schedule would impose massive costs on the state fisc and inflict untold harms to state sovereignty.” The “state fisc” is the state treasury.
In a response to the state’s supplemental brief, attorneys for the appellees in Covington filed a response last week  that states the highest court should not rely on the state’s “unsupported assertions” about the special elections. It also notes that the state requested the delay in the first place.
The response brief says that the state’s claims about special elections “appears to be yet another tactical ploy for still further delay such that Appellants might even be excused from implementing a remedy in time for the regularly scheduled 2018 elections.”
In its order today, the Supreme Court gives some instruction for the lower court in weighing a remedy of special elections, including the following considerations: “the severity and nature of the particular constitutional violation, the extend of the likely disruption to the ordinary processes of governance if early elections are imposed, and the need to act with proper judicial restraint when intruding on state sovereignty.”
“We do not suggest anything about the relative weight of these factors (or others), but they are among the matters a court would generally be expected to consider in its ‘balancing of the individual and collective interests’ at stake,” the order states.
There have been at least two examples in North Carolina’s history of expedited election schedules, according to SCSJ.
The first was in 1998, when there was a congressional primary in September after a three-judge panel in Cromartie v. Hunt granted summary judgment to the plaintiffs and entered an injunction on April 3, 1998.
There, the district court and the Supreme Court denied a stay pending appeal in the case, even though congressional primaries had been scheduled for May 1998 and the injunction was entered after filing had ended and ballots had been prepared.
“The legislatively-enacted remedial plan was precleared under the Voting Rights Act on June 8, 1998, and primaries proceeded as follows: filing was from July 6-20, 1998, the primary was on September 15, 1998, and the general election was conducted as planned on November 3, 1998,” according to SCSJ.
The other instance involved Stephenson v. Bartlett, where plaintiffs challenged the state legislative redistricting plans enacted in 2001.
After denying plaintiffs’ preliminary injunction motion, the trial court ruled for plaintiffs on February 20, 2002, and permanently enjoined the state legislative redistricting plan that it found violated the state constitution.
On March 1, 2002, the filing period for candidates closed for the 2002 elections. On March 7, 2002, the state Supreme Court enjoined the May 7, 2002, primary elections.
Of note in that case, according to SCSJ, the plaintiffs in Stephenson (represented by Thomas Farr, an attorney currently representing the state in Covington) argued to the state Supreme Court that even though it would require bifurcated and delayed primaries for state legislative districts, it was paramount to correct the irreparable harm that flowed to plaintiffs in that case from being in districts that violated the state constitution.
On April 30, 2002, the Supreme Court declared the 2002 plans unconstitutional and directed the trial court to determine if the General Assembly could redraw plans in time to allow the November 2002 elections to proceed on schedule, and if they could not, to draw its own plan.
The trial court allowed the General Assembly two weeks to redraw, which it did, but on May 31, 2002, the trial court declared the newly enacted plans unconstitutional as well. In June, the trial court drew remedial plans itself, and in July, the General Assembly enacted legislation providing for a primary date of September 10, 2002, for state legislative districts. Those elections occurred in September, and the general election proceeded as scheduled on November 5, 2002.
Reactions after today’s order
“Whether the election is November 2018 or earlier, redrawing the districts is good for our democracy by leveling the playing field for free and fair elections,” he said. “The people should be able to choose their representatives in competitive districts instead of the representatives being able to choose the people in lopsided, partisan districts.”
Click To Tweet 
Democrats have similarly praising the court for its decision, but have also expressed frustration about the racially gerrymandered maps and what they’ve already done to voters.
“1 / #SCOTUS affirms NC racial gerrymandering case & orders court to fashion remedy. Still time to hold special elections in 2018 #ncpol,” he tweeted. “2 / By delaying elections until November 2018 we continue to let this unconstitutionally constituted #NCGA push a far-right agenda #ncpol.”
U.S. Rep. G.K. Butterfield , a former judge, released a response on Twitter  and noted that the people should not be required to wait until 2018 to be represented by a legislator who is lawfully elected.
“The Supreme Court’s ruling today completes the judicial appellate process for legislative redistricting,” Butterfield said. “The court has once again told North Carolina what I have long known to be true – that its history in making voting decisions is discriminatory.”
Republicans have been a little quieter on social media, but a few have made some comments about the order.
Dallas Woodhouse, Executive Director of the North Carolina GOP, focused not on the unconstitutional gerrymanders the court affirmed, but the “brutal take-down and rebuke of the 4th Circuit’s call for special elections.”
“Supreme Court affirms what we’ve known all along – the judges on the fourth circuit aren’t good judges @NCGOP @MyNCSenate @NCHouseGOP #ncga,” he tweeted .
Sen. Ralph Hise  (R- Madison, McDowell, Mitchell, Polk, Rutherford, Yancey) and Rep. David Lewis  (R-Harnett) released a joint statement  regarding the Supreme Court’s order. They similarly did not acknowledge the racially gerrymandered districts.
“We are encouraged the Supreme Court unanimously rejected the lower court’s politically-motivated attempt to force a special legislative election in 2017 and its efforts to ‘suspend provisions of the North Carolina Constitution,’ ignore voters’ constitutional right to elect representatives to two-year terms, and effectively nullify their votes from 2016,” they stated.
Common Cause North Carolina  applauded the Supreme Court for showing again that racial gerrymandering is unconstitutional and unacceptable.
“However, we have seen Republican legislative leaders respond to previous court rulings against their racial gerrymandering by then brazenly gerrymandering along partisan lines with similar effect — creating voting districts that continue to deprive North Carolinians of a voice in choosing their representatives,” said Executive Director Bob Phillips. “We are hopeful that, like racial gerrymandering, the federal courts will ultimately ban partisan gerrymandering.”
Common Cause is among the plaintiffs in a separate lawsuit challenging the constitutionality of partisan gerrymandering in North Carolina. That trial is set to begin on June 26 in the federal Middle District court in Greensboro.
The organization is hosting a “people’s hearing” tonight on House Bill 200 , a bipartisan redistricting reform effort.
Instead of lawmakers drawing their own districts for partisan advantage, under HB 200 nonpartisan legislative staff would create congressional and legislative maps blind of political consideration. The bill would take effect for the 2021 redistricting cycle.
The hearing tonight will be held from 4 to 6 p.m. in room 643 of the Legislative Office Building on N. Salisbury Street in Raleigh.