Last week a three-judge federal court in North Carolina struck down the state’s federal congressional map, ruling that Republicans had drawn the map to give themselves an advantage over Democrats – specifically, the court stressed, to guarantee Republicans’ “domination of the state’s congressional delegation.” The court ordered the state legislature to come up with a new plan by January 24, but tonight the Supreme Court put that order on hold, to give the state’s Republicans time to appeal.
In a request filed last week, the state’s Republicans complained that the three-judge district court had used “an entirely novel legal theory to hopelessly disrupt North Carolina’s upcoming congressional elections.” They told the justices that there “is no reason to treat this case differently from” Gill v. Whitford, the Wisconsin partisan-gerrymandering case in which the court blocked an order requiring that state to draw new maps.
In briefs filed yesterday, the challengers – including the watchdog group Common Cause and the League of Women Voters – urged the justices to turn away the Republicans’ request. They argued that the Republicans’ “true motive is as plain as day: the Republican contingent of the legislature wants to enjoy the fruits of their grossly unconstitutional actions for yet another election cycle.” The facts of this case, they told the justices, are so “shocking” that they would amount to partisan gerrymandering under any test that the court might eventually establish in Gill and Benisek v. Lamone, a challenge – likely to be argued in March – by Maryland Republicans to a federal congressional district in that state.
Tonight’s brief order indicated that the lower court’s decision will stay on hold until Republicans can file their appeal and the Supreme Court can rule on it. As a practical matter, the court likely will not act on that appeal for some time, possibly until after it rules on the Wisconsin and Maryland gerrymandering cases. As election law expert Rick Hasen points out, this means that no matter how the Supreme Court rules, the likelihood that new maps will be in place for the 2018 elections is quite low.
Justices Ruth Bader Ginsburg and Sonia Sotomayor indicated that they would have denied the request to put the lower-court order on hold. Justices Stephen Breyer and Elena Kagan, the two other justices commonly regarded as part of the court’s more liberal wing, remained silent – at least publicly.