(CN) – In a ruling with stark implications for the upcoming mid-terms elections, a three-judge panel on Monday held that North Carolina’s congressional districts were unconstitutionally drawn to favor Republicans over Democrats and said it may require new districts be crafted before the November elections.
The ruling will likely push North Carolina lawmakers to seek an emergency reprieve from the U.S. Supreme Court, a situation complicated by the current vacancy on the high court.
Though the Justices traditionally refrain from approving judicial actions that could affect the outcome of an election so close to its being held, a split on the court would allow the panel’s decision to stand.
In a 321-page opinion, U.S. Circuit Judge James Wynn Jr. acknowledged that primary elections have already produced candidates for the 2018 elections, but said that the panel is reluctant to let voting take place in congressional districts that courts twice have found violate constitutional standards.
“Legislative Defendants drew a plan designed to subordinate the interests of non-Republican voters not because they believe doing so advances any democratic, constitutional, or public interest, but because, as [state legislators] openly acknowledged, ‘the General Assembly’s Republican majority “think[s] electing Republicans is better than electing Democrats,’ Wynn wrote, citing a statement attributed to GOP state Rep. David Lewis.
“That is not a choice the Constitution allows legislative map drawers to make,” Wynn said.
The judge, an Obama appointee, said the unconstitutional gerrymander was created by legislators and consultants using 2016 “political data.” The map “would ensure Republican candidates would prevail in the vast majority of the State’s congressional districts, and would continue to do so in future elections.”
“That is not a choice the Constitution allows,” he wrote, quoting the Supreme Court’s 2014 McCutcheon v. FEC decision: “Rather, “those who govern should be the last people to help decide who should govern.”
With only 70 days to go before the highly anticipated 2018 midterm elections, Wynn acknowledged the court would usually allow the current maps to be used. However, considering the state’s history with the maps, and the many steps legislators have taken to discredit the court’s efforts to bring them up to code, he spoke at length about his hope that a new map will be created and used instead.
All of North Carolina’s 13 congressional seats are up for grabs this year.
“We continue to lament that North Carolina voters now have been deprived of a constitutional congressional districting plan—and, therefore, constitutional representation in Congress—for six years and three election cycles,” Wynn wrote.
He also quoted state legislators from their June U.S. Supreme Court hearing when they said a new map would cause “only minimal disruption to the ongoing election process.”
A federal judge struck down the legislature’s 2011 map as a racial gerrymander in 2016, prompting the lawmakers to take a second look at the map and consider chances. However, when they returned to the court, the district map the lawmakers presented was essentially unchanged.
What did change was their purported reason for drawing it as they did: it wasn’t race that determined the district contours, it was politics.
The Supreme Court told the three-judge panel to take another look at the North Carolina case in light of the high court’s June decision in a Wisconsin partisan gerrymandering case, in which the justices said those who brought that case did not have legal standing.
But it their ruling Monday, Wynn, who normally sits on the 4th Circuit, and the other members of the special three-judge district court panel, said the plaintiffs in this case do have standing under the Supreme Court’s decision in Wisconsin’s Gill v. Whitford.
The panel went on to suggest a number of possible remedies. One would be to appoint a special master to draw new districts; another would be to declare that the November elections in North Carolina will be a primary and holding the general election sometime before the new Congress convenes in January.
Wynn and his fellow judges called for immediate briefing from the parties about which remedy to pursue.
In a concurring opinion, U.S. District Judge William Osteen Jr., a George W. Bush appointee, defending the court’s authority to intervene in the creation of legislative districts, a power usually reserved for state’s legislative branches.
Quoting the late U.S. Supreme Court Justice Anthony Scalia, Osteen said “a political gerrymandering claim could succeed where plaintiffs showed ‘both intentional discrimination against an identifiable political group and an actual discriminatory effect on that group.’”
However in this case, he believes the North Carolina is legally flawed. “When partisan considerations predominate a legislature may act contrary to the Equal Protection Clause under existing precedent,” Osteen wrote.
But the judge did take issue with the majority’s use of the First Amendment as grounds to overturn the map and limit the ability of politics to influence future maps.
“Congress has declined to expressly limit partisan gerrymandering by statute … and the Court’s cases accepting or tolerating some amount of partisan consideration are many,” Osteen wrote. “It might be desirable for a host of policy reasons to remove partisan considerations from the redistricting process. But I am unable to conclude that the First Amendment requires it, or that Plaintiffs here have proven violations of their speech or associational rights under the First Amendment.”