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North Carolina gerrymandering illegal, federal court rules

August 28, 2018

A federal court ruled against North Carolina again Monday over its partisan gerrymandering, setting the issue up for a possible second Supreme Court review or the prospect of drawing up a new map in the weeks before the November midterms.

The high court took up a partisan gerrymandering case last term from Wisconsin, but concluded the voters didn’t have a specific injury to bring the lawsuit. As a result, the justices sent the North Carolina case, which had similar claims, back to the lower court to grapple with whether voters suffered enough of an injury to litigate their case.

On Monday, the lower court again sided with voters, saying they showed substantial evidence the lawmakers “packed or cracked” their congressional districts so votes “carry less weight than [they] would carry in another, hypothetical district.”

Republicans lawmakers “deprived Democratic voters ‘of their natural political strength’ by making it difficult for such voters to raise money, attract strong candidates, and motivate fellow party members and independent voters to campaign and vote,” Circuit Judge James Wynn, an appointee of President Obama, wrote in the court’s opinion.

The parties have until the end of the month to file briefs arguing whether the current legislative map should be used in the 2018 election or if a remedial map needs to be composed before November.

“Regardless of whether we ultimately allow the State to use the 2016 Plan in the 2018 election, we hereby enjoin the State from conducting any elections using the 2016 Plan in any election after the November 6, 2018, election,” the court ruled.

If North Carolina appeals the decision, the Supreme Court could consider the case during this upcoming term, which kicks off in October.

Supreme Court nominee Brett M. Kavanaugh could potentially be on the high court by then to weigh in on the issue. If not, the court could split 4-4, leaving the lower court ruling in place.

“We anticipate an appeal and are ready to turn legislators’ brazen partisan gerrymander into a historic ruling in the Supreme Court to end the practice nationwide,” said Karen Hobert Flynn, president of Common Cause, a nonprofit group that brought the case.

Rick Hasen, a law professor at the University of California, Irvine, said the result is not surprising since this same panel previously ruled the map illegal.

But he did think it’s a surprise the court left open the possibility of a new map having to be drawn by lawmakers or a special master before the 2018 midterms.

“We know that the Supreme Court has not liked interim remedies in redistricting and election cases close to the election, and it has often rolled back such changes,” Mr. Hasen wrote in the Election Law Blog.

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