A Month Before Primary, North Carolina Asks U.S. Supreme Court to Resolve Redistricting Battle

by | February 10, 2016

By Michael Gordon

North Carolina's legal fight over its election map approached its end game Tuesday with the state asking the Supreme Court to take the case in hopes of protecting next month's primary.

Lawyers filed the emergency request no more than an hour after a three-judge federal panel refused to delay its order from last week that found two congressional districts unconstitutional. The judges have ordered the state to redraw the boundary lines for the 12th and 1st district by the end of next week.

That's less than a month from the March 15 primary. Lawyers for Gov. Pat McCrory and other state officials have argued that putting a new voting map in place at this late date will throw next month's balloting into chaos.

They made that same argument in the 183-page motion to Chief Justice John Roberts.

"This Court should stay enforcement of the judgment immediately," the state argued.

"North Carolina's election process started months ago. Thousands of absentee ballots have been distributed to voters who are filling them out and returning them. Hundreds of those ballots have already been voted and returned. The primary election day for hundreds of offices and thousands of candidates is less than 40 days away and, if the judgment is not stayed, it may have to be disrupted or delayed."

U.S. District Judges William Osteen of Greensboro and Max Cogburn of Asheville along with U.S. Circuit Judge Roger Gregory of Virginia ruled on Friday that the GOP-led legislature relied too heavily on race to draw the boundary lines in the 12th and 1st districts.

The 12th, the most heavily litigated congressional district in the country during the 1990s, snakes along Interstate 85 through heavily African-American areas of Charlotte, Winston-Salem and Greensboro. The 1st, which includes parts of 24 counties, rolls east out of Durham to Elizabeth City. Both are represented by Democrats.

As part of its unsuccessful motion, the state argued that absentee ballots based on the existing 2011 congressional district map have already been completed and returned by hundreds of voters. To change the lines now, they said, would eliminate those ballots and throw next month's statewide vote into disarray. They also said they relied on partisan politics, not race, to come up with the 2011 congressional map.

In response Tuesday, the plaintiffs, including two from Mecklenburg County, said any further delay in replacing the lines will cause "irreparable harm" to the plaintiffs and other voters, and that the state has little chance of winning the case once it goes back to court.

"Plaintiffs _ and every other voter in North Carolina _ have already been subject to two elections under the unconstitutional enacted plan," the new motion states. "The General Assembly's improper use of race to sort voters by the color of their skin has violated the Fourteenth Amendment rights of millions of North Carolinian(s)."

That harm "vastly outweighs the administrative inconvenience and additional cost the state will incur if the primary is delayed," the response says. Court fights led to delays in N.C. elections in 1998 and 2002.

The Raleigh and Washington, D.C.-based legal team also argued that the state has only itself to blame _ rescheduling the primary from May to March to increase the state's role in presidential election, a move that McCrory signed into law two weeks before the redistricting case began in court.

The judges' response, released by Osteen, followed similar lines.

The state, the judges declared, had offered only vague statements about the potential damage to North Carolina citizens. What is clear, they said, is the irreparable harm done to voters living within the improperly drawn districts.

"The court finds that the public interest aligns with the plaintiff's interests and thus mitigates against (delaying) the case," the judges wrote. "The harms to North Carolina are public harms. The public has an interest in having congressional representatives elected in accordance with the Constitution."

That sets the stage for a state appeal to the Supreme Court, which last year struck down Alabama's congressional districts based on the largely the same racial argument. The current court, however, has tried to avoid rulings that could disrupt elections and confuse voters.

Legislative leaders say McCrory is poised to call a special legislative session next week to address the issue, if needed.

Minority leader Dan Blue, D-Wake, said Tuesday the time for action is overdue.

"The voters of North Carolina have waited for five years for the right to be heard _ both at the judicial level and at the polls," Blue said. "We applaud the federal court panel's decision as a crucial first step in ensuring that every individual's right to vote is protected."

All three federal judges who issued the rulings have played key roles in ground-breaking civil or voting rights cases.

Gregory is the only circuit judge in the country who was appointed by a president from both parties (Bill Clinton and George W. Bush) and the first African-American member of the 4th Circuit, which has the highest percentage of black population in the country. He voted with his colleagues to strike down Virginia's ban on gay marriage, which led to the 2015 demise of Amendment One, North Carolina's own marriage ban.

Cogburn, who formerly practiced law in Asheville and Charlotte, wrote the order abolishing North Carolina's marriage ban. He was appointed to the bench by Barack Obama.

Osteen, a Bush appointee, heard the other two major challenges to the state's marriage amendment, striking it down shortly after Cogburn ruled.

(c)2016 The Charlotte Observer (Charlotte, N.C.)