By Jim Morrill and Lynn Bonner, The Charlotte Observer
The potentially landmark ruling that struck down North Carolina congressional districts adds more uncertainty for candidates – and voters – barely a month before the official start of election season.
The ruling Tuesday from a federal three-judge panel also carries national implications and continues more than a decade of court intervention in the drawing of North Carolina election districts.
It leaves the boundaries for the state’s 13 congressional districts uncertain ahead of the Feb. 12 start of candidate filing.
“Since the 2010 (U.S.) Census we’ve had seven, now eight years of perpetual redistricting,” said Andy Yates, a Republican political consultant. “This constant flux is not good for anybody.”
In Tuesday’s unanimous ruling, the three judges called the current congressional map, drawn by legislators in 2016, an unconstitutional example of “invidious partisanship.” They ordered lawmakers to draw new districts by Jan. 24.
It was the first time a federal court has blocked congressional districts because of partisan gerrymandering.
Republican Senate Leader Phil Berger said Wednesday lawmakers plan to ask the U.S. Supreme Court to stay the ruling. House Speaker Tim Moore vowed to appeal “to the highest court available.”
Other Republicans were quick to agree.
“Democrats can’t win elections so they strategically go to liberal appointed judges to change the maps to give themselves an advantage,” U.S. Robert Pittenger, a Charlotte Republican, said in a statement.
The 191-page opinion was written by Judge James Wynn, who was appointed by President Barack Obama. He was joined by Judge W. Earl Britt, appointed by President Jimmy Carter, and Judge William Osteen Jr., elevated by President George W. Bush.
This week’s ruling comes before an expected court order by another panel of federal judges. In 2016 that panel found that 28 legislative districts in Mecklenburg, Wake and five other counties are unconstitutional racial gerrymanders. That order, along with new district lines, is anticipated soon.
Changing districts pose unique problems for legislative candidates, who under the state constitution have to live in the district for a year prior to the election. Congressional candidates have no residency requirement.
How much politics?
Racial gerrymandering has been the basis of most previous challenges to N.C. election districts. In the 1990s, the majority-minority 12th Congressional District, then represented by Charlotte Democrat Mel Watt, was the most litigated district in America and the focus of four cases that went to the U.S. Supreme Court.
Tuesday’s case involves partisan gerrymandering. The question before judges: How much politics is too much?
The U.S. Supreme Court could rule on partisan gerrymandering by the end of June. It already heard arguments in a Wisconsin case and agreed to hear arguments in a similar Maryland case this spring.
In the North Carolina case, the federal judges found that politics clearly played too big a role.
They cited House Redistricting Chair David Lewis, who once said “to the extent [we] are going to use political data in drawing this map, it is to gain partisan advantage.” Lewis also defended a map that gave Republicans a 10-3 partisan advantage in the state’s U.S. House delegation: “because I do not believe it’s possible to draw a map with eleven Republicans and two Democrats.”
In 2012, the judges found, Republicans won 49 percent of the state’s overall congressional votes but took nine of 13 U.S. House seats. In 2014, Republicans won 54 percent of the congressional vote and 10 of the 13 seats.
“If any case is one which the court is going to police partisan gerrymandering, this should be the one, because the state is saying that they drew the districts for maximum partisan advantage,” said Rick Hasen, a law professor and redistricting expert at the University of California, Irvine.
Experts say a stay could be likely. If not, and North Carolina’s congressional districts are redrawn, they’d almost certainly give more seats to Democrats in the state and in Washington, where they need 24 seats to take control of the House.
“Let’s say new districts are in place by November, surely it would mean Democrats would pick up two to three seats just in North Carolina,” said University of Virginia political scientist Larry Sabato. “(Democrats) need 24 seats. So that’s a big marginal gain from one state.”
But one Democratic consultant didn’t like the court’s latest ruling.
In his blog Politics North Carolina, Thomas Mills said that while partisan gerrymandering should be addressed, “the court’s decision a month before filing begins is disrespectful of the political process.” He said it hurts challengers and their donors who may suddenly be unsure where their districts are.
Whatever the Supreme Court does in response to this week’s N.C. ruling could not only have repercussions on future redistricting but determine whether N.C. elections are delayed for at least the fourth time in 20 years.
“Certainly it adds more chaos to what we are expecting to be a very chaotic 2018 midterm election cycle,” said political scientist Michael Bitzer of Catawba College.