Judge James Wynn, during his confirmation hearing to become U.S. Circuit Judge for the Fourth Circuit in 2009. (Photo: Diego M. Radzinschi/ALM)

The U.S. Supreme Court is likely to be drawn back quickly into the battle over partisan gerrymandering following the invalidation of North Carolina's congressional redistricting map by a three-judge district court.

The ruling Monday was the second time the district court struck down the 2016 redistricting plan as an unconstitutional partisan gerrymander. North Carolina lawmakers, represented by Kirkland & Ellis partner Paul Clement, had appealed the first ruling to the Supreme Court last term. The justices in June sent the North Carolina cases back to the trial court for consideration in light of their ruling last term in Gill v. Whitford, a partisan gerrymander challenge to Wisconsin's legislative redistricting plan.

Election law experts anticipate North Carolina will take an emergency request up to the Supreme Court, urging the justices to stay the district court decision, pending action on a petition seeking review. Any action on the would-be stay request is where the timing and politics get tricky.

The district court did not impose a remedy for the constitutional violation. Instead, the court said it may give the North Carolina Legislature another shot at drawing a constitutional redistricting plan. The court also said it may appoint a special master to draw an alternative plan in time for the 2018 election, which is weeks away.

With the retirement of Justice Anthony Kennedy, the high court has eight justices. A stay requires the votes of five justices. If the court divides 4-4, the district court's decision is left in place, leaving that court to decide whether to move ahead with a new plan in time for the election.

The justices traditionally are reluctant to approve election changes close to an election.

Based on their decision in Gill, Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan would appear sympathetic to the district court decision. However, one or more of those justices may feel the timing is too close and vote to grant a temporary stay. That would push consideration of the North Carolina case into the new term with a potential decision affecting the 2020 elections.

Election law scholar Richard Hasen of the University of California, Irvine School of Law wrote on his blog that Kagan and Breyer are the key to the vote on a any stay request from North Carolina.

“In the longer term, the court will be likely to take this case, because it is an appeal finding a partisan gerrymander, and the four conservative justices won't let that stand, and they'll soon be joined by Judge [Brett] Kavanaugh to likely hold partisan gerrymanders completely nonjusticiable (as they were going to do in Gill, if they had Kennedy's vote),” Hasen said.

Common Cause, one of the challengers to the North Carolina plan, expects a return to the Supreme Court.

“Common Cause and our partners in this lawsuit took the fight to politicians who manipulate our democracy, and we won,” said Karen Hobert Flynn, Common Cause president, after the district court decision. “We anticipate an appeal and are ready to turn legislators' brazen partisan gerrymander into a historic ruling in the Supreme Court to end the practice nationwide.”

A team from Ogletree, Deakins, Nash, Smoak & Stewart represents the North Carolina legislative defendants in the trial court. A representative was not immediately reached for comment Tuesday.

The Supreme Court in Gill did not answer the basic question at the heart of partisan gerrymander challenges that have come to the court in recent years: Is there a manageable standard by which courts can determine whether a redistricting map has crossed the constitutional line because of egregious partisanship?

Instead, the unanimous court, in an opinion by Chief Justice John Roberts Jr., said the Wisconsin Democratic challengers lacked standing to pursue their statewide gerrymander claim. The court sent their case back to the lower court to see if they could establish the individual injuries giving them standing to sue.

Judge James Wynn of the U.S. Court of Appeals for the Fourth Circuit, who wrote the North Carolina decision on Monday, hewed closely to Roberts's Gill opinion and a concurring opinion by Kagan, who addressed standing and a First Amendment claim. Wynn said the court found that under the Gill test, at least one plaintiff in each of the 13 challenged districts had standing to assert partisan gerrymander claims under equal protection, the First Amendment and Article I of the Constitution.

Wynn, joined by Senior U.S. District Judge W. Earl Britt of the Eastern District of North Carolina and in part by Judge William Osteen of the Middle District of North Carolina, said the plaintiffs evidence showed state lawmakers drew election maps “with a predominant intent to subordinate the interests of non-Republican voters and entrench Republican control of North Carolina's congressional delegation.”

Wynn continued: “We further find that numerous forms of statewide evidence prove that the 2016 plan achieved the general assembly's discriminatory partisan objective. And we find that neither North Carolina's political geography nor the general assembly's interest in protecting incumbents explains the 2016 plan's discriminatory effects.”

 

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