In a decision with potentially national implications, a panel of three federal judges in the Middle District of North Carolina ruled Monday that the state’s congressional maps were unconstitutionally gerrymandered to entrench Republican control, which, depending on an appeal to the Supreme Court, could force a redraw ahead of the election and give Democrats a leg up in their quest to flip at least twenty-three seats nationwide and retake the House.
Democrats cheered the 321-page ruling. But the question is whether it comes too late to affect this year’s elections.
Gerry Cohen, former special counsel to the General Assembly when the Democrats were in charge, thinks it might. The logistics of complying with the ruling this late in the game would be “chaos,” he says. Maps would need to be redrawn, approved by the courts, voter rolls updated, and ballots redone all before the September 22 deadline to send out absentee ballots.
“I don’t mean to be Debbie downer, but I can’t figure out how this could actually be done,” Cohen says. “I think to affect this fall’s election, this decision needed to come down in early June.”
The court had reached a similar decision in January, but the U.S. Supreme Court kicked the case back down on the relatively narrow question of who had standing to sue, not the more important issue of whether explicitly partisan gerrymandering—which, make no mistake, is what the legislature did—is in fact unconstitutional. Today, the legislature asked the Supreme Court to issue a stay; if the eight sitting justices deadlock, the Middle District’s ruling will stick.
Gerrymandering has been a major issue in the state for decades, but especially since Republicans reclaimed the General Assembly and redrew the maps in 2011, resulting in a shift in congressional representation from seven Democrats and six Republicans to nine Republicans and four Democrats. After the maps were redrawn again in 2016, prompted by a different federal court’s ruling that the 2011 maps were racially gerrymandered, Republicans gained a 10–3 majority.
The only reasons they stopped there, state representative David Lewis famously boasted, is because “I do not believe it’s possible to draw a map with eleven Republicans and two Democrats.”
The panel’s ruling states Republican maps handicap Democratic candidates and violate the Equal Protection Clause, the First Amendment, and first article of the U.S. Constitution. Normally, that would mean the state couldn’t use those maps in an election, but as Judge James J. Wynn wrote for the majority, this case presents an “unusual set of circumstances” with the election only weeks away. So Wynn didn’t rule out the possibility that the state could use the unconstitutional map for the midterms.
If the Supreme Court grants a stay, the election will move forward as is, and the maps will be redrawn for 2020, Cohen says. But what happens if the court doesn’t go that route?
There are a few options:
The maps get redrawn and a new primary is held in November. The general election is then pushed back to early January, which would be bananas.
The maps get redrawn, the state foregoes a primary, and a general election with new maps is held in November. This would also be all kinds of crazy.
The maps get redrawn, the state skips the primary, and party executive committees nominate candidates for the ballot, then there’s the general election in November.
The unconstitutional map gets used for this election and redrawn afterward.
The panel is expected to decide next month whether the current maps can be used in November or if Republicans will have to redraw them. But the federal court will need to sign off on whatever the legislature comes up with—no sure bet—candidates will have a week to refile for office, and ballots will need to be rewritten and proofed.
That’s almost impossible, Cohen says, even if the state forgoes primaries.
Pushing back the election until early January, as Wynn suggested, would cost the state up to $6 million and lead to a “micro-turnout” of minorities and young voters, Cohen adds, with early voting taking place Christmas week.
The ballots would have already been printed by now if not for the ongoing legal battle over the recently revised constitutional amendments.
The most likely scenario? New maps for 2020, Cohen says.
Dallas Woodhouse, executive director of the North Carolina Republican Party, agrees.
State Senator Jeff Jackson, D-Charlotte, agrees that redrawing the maps this close to the election would “result in maximum uncertainty. We would reach the theoretical limit of political uncertainty in terms of the outcome of any one of those races.”
But though that would be confusing for voters, Jackson says, it’s preferable to heavily gerrymandered districts.
“There are remedies to confusion,” he says. “There is no political remedy to partisan gerrymandering. That’s why it’s so insidious. It’s the end of the game.”