It appears that Thomas Farr is back in the game – the North Carolina redistricting game, that is.
The recent Trump nominee for a federal judgeship in North Carolina’s Eastern District filed paperwork last week to appear in court on behalf of the GOP legislative defendants in Common Cause v. Lewis, a challenge to the 2017 legislative map on grounds that it violates the state constitution as an extreme partisan gerrymander.
Farr is no stranger to litigating North Carolina laws and maps enacted by Republican legislators – he has defended several of the state’s maps that were struck down as racial gerrymanders. And in 2013, he defended the state’s sweeping “monster” voter ID law, which was also declared unconstitutional on the grounds that it was racially discriminatory.
His alleged association with white supremacy and voter suppression were two key elements in making him a controversial nominee to the U.S. District Court bench in the Eastern District of North Carolina, which houses almost half of the state’s Black population. President Donald Trump first nominated Farr to the bench in 2017, but the Senate never held a final confirmation prior to the end of the 115th Congress. The nomination foundered last November when Senator Tim Scott of South Carolina, the Senate’s only Black Republican, opposed it. Farr had previously been nominated, also unsuccessfully, for the same position in 2006 by President George W. Bush.
It’s possible that Farr’s joining of the partisan gerrymandering defense team marks the end of any consideration of him for the judgeship. Farr’s nomination expired at the end of the last Congress and the White House has not announced any other nominations to fill the vacant seat in the Eastern District. The position has been vacant for 13 years – the longest running in the nation – and the situation is considered a “judicial emergency.” Senate Judiciary Chairman Lindsey Graham did not respond to a request for comment on the matter and neither did Farr.
Common Cause v. Lewis is one of three North Carolina partisan gerrymandering cases that are pending – it is set for trial July 15. The others are Rucho v. Common Cause and Rucho v. League of Women Voters at the U.S. Supreme Court – a decision is expected in those sibling cases by the end of June.
The Supreme Court cases could have implications for legislatures across the country. Justices heard arguments about the Republican gerrymander in North Carolina and a Democratic gerrymander in Maryland.
Voting rights advocates are hopeful the Court decides to limit how much politics can be involved in the redistricting process.
Allison Riggs, senior voting rights attorney for the Southern Coalition of Social Justice, represents the League of Women Voters in one of the cases. She presented justices with a three-prong test that she said they could use to identify maps that are extreme outliers and thereby unconstitutional.
The test involves identifying partisan intent — which would have to be district-specific — showing a severe and durable effect from that intent, and determining if there is any justification for it, such as the political geography of a state.
Individuals who oppose court limits to partisan gerrymandering have argued that it should be a nonjusticiable issue because of its political nature.
Paul Clement, the attorney representing North Carolina lawmakers, told justices that plaintiffs were essentially seeking proportional representation – a system in which parties gain electoral seats in proportion to the number of votes cast for them – which isn’t a right protected by the Constitution.
He also said that if justices weigh in now on partisan gerrymandering, they would become buried in a political thicket of litigation when they should remain independent.
Most of the justices at the oral argument appeared willing to rein in partisan gerrymandering, but they focused heavily on trying to find some sort of manageable standard, which isn’t as simple as a certain formula or one-size fits all solution.
If the high court decides not to wade into partisan gerrymandering, North Carolina still has a chance for change with Common Cause v. Lewis. Because it’s a state constitutional challenge, it can only go as high as the state Supreme Court, which could rule to set statewide limitations on partisan gerrymandering.
The case, of course, would have to work through the lower courts first, which is what is currently happening. The most recent development was that the daughter of the late, national GOP mapmaker, Thomas Hofeller, turned over more than 70,000 of his files to the plaintiffs in the case.
All the parties in the case now have access to those files, though the legislative defendants indicated in Wake County Superior Court – where the case is pending – they would have liked to have them returned to Hofeller’s estate.
Judges Paul Ridgeway, Joseph Crosswhite and Alma Hinton are presiding over the state court case. It’s not clear yet to what extent Farr will be involved – Phil Strach has typically represented the legislative defendants in court, but they do both work at the same law firm, Ogletree Deakins.