So, about that North Carolina v. Covington Prediction…I was Wrong
Posted on January 11, 2017
On New Year’s Day I wrote a post about the North Carolina GOP’s motion to the Supreme Court of the United States (SCOTUS) to stay 2017 North Carolina special elections (2017 elections). The 2017 elections were ordered by a lower court to remedy unconstitutional racial gerrymanders in North Carolina. In the previous post, I did a bit of prognostication, predicting that SCOTUS would deny the North Carolina GOP’s motion for a stay. I wrote:
What do I think will happen, based on absolutely zero cases personally argued before the Supreme Court? My money is on a denial, with or without opinion.
It seems I was wrong. Of course, so was a preeminent election law scholar, so I don’t feel too terrible about it.
Yesterday SCOTUS issued an Order granting the State of North Carolina’s request for a stay. This means that until (1) SCOTUS decides whether it will grant certiorari (agree it has jurisdiction to hear the appeal) the special elections ordered by a three judge panel will not occur; (2) if the Court accepts jurisdiction or dismisses the appeal and rules in favor of Covington the stay will be lifted and special elections will be scheduled; and (3) if the Court grants certiorari and rules in favor of the state of North Carolina then there will be no special election and the North Carolina state legislative maps drawn by the majority GOP will stand unchanged for elections in 2018.
Even though the stay is temporary, it does not portend good news for North Carolina Democrats. In December 2016 SCOTUS heard arguments in another North Carolina gerrymandering case, McCrory v. Harris. Harris concerns the federal congressional districts drawn by the same North Carolina majority-GOP legislature that drew the unconstitutional state legislative districts in Covington. The lower court in Harris, like the lower court in Covington, found that the North Carolina legislature over-relied on race in drawing congressional districts.
SCOTUS heard oral arguments in Harris on the same day as the Virginia redistricting case I discussed here. SCOTUS has not yet ruled on Harris or on the Virginia case. A decision is expected before summer. However, my review of the transcript of the oral arguments in both those cases leads me to believe (yes, guess again) that the lower court decisions may be overturned. Justice Breyer’s questioning of the lawyers representing the voters was skeptical that SCOTUS could ferret out the difference between permissible reliance on race to draw districts as required by the Voting Rights Act (VRA) and illegal racial sorting.
Here’s why I’m concerned about the stay in Covington. If the Court is planning to rule in favor of GOP legislators in Harris a stay in Covington is precisely the correct course of action to take. We can’t un-have a special election. If special elections are held in North Carolina in the fall of 2017 and then the Covington case is reversed there would arguably be harm to the GOP and its voters that could not be undone.
Of course, PEOTUS Trump is expected to announce his nominee for SCOTUS in the coming days. This pending nomination could also be motivating Chief Justice Roberts’s decision to issue a stay. He may be trying to maintain the status quo until the Court is back up to 9 justices so that any new or clarified law is made by the full Court.
Unless and until the stay is lifted, progressives in North Carolina will have more time than they expected to pull together coalitions in NC to challenge the GOP supermajority in 2018.