It's too late to redraw North Carolina's congressional map before this year's elections, a legal team that has tried for two years to change that map said Friday in a key legal brief that could clear away some of the confusion clouding the state's coming election season.
A panel of three federal judges suggested earlier this week that North Carolina might delay its congressional elections so the map could be redrawn. The panel has twice found this map unconstitutional, drawn so blatantly to elect Republicans that it represents an illegal partisan gerrymander by the GOP-controlled General Assembly.
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Attorneys for Common Cause and the League of Women Voters "reluctantly concluded" in a brief filed Friday that trying to redraw the districts now would be "disruptive and potentially counterproductive."
"In the end, notwithstanding the blatant illegality of the 2016 Plan, plaintiffs must endorse the wisdom of the case law abstaining from intervention when elections are truly imminent, the changes involved are so substantial, and the state election machinery is underway," attorneys for the two groups wrote.
Also behind that argument: The math at the U.S. Supreme Court. Republican legislators, who contend the congressional map they drew in 2016 is legal, won a stay from the high court earlier in this case. A similar outcome is likely this time, Common Cause attorneys predicted Friday, leaving little reason to fight the issue out ahead of the November elections.
"This could create a situation in which this court orders a new map to govern on election day 2018, candidates and officeholders begin to act in reliance on that order, and the Supreme Court intervenes, changing the rules yet again," they wrote.
Instead the court should force a redraw of the map before the next election cycle, Common Cause and the LWV argued. That should be handled by an outside expert commonly called a "special master," they said, instead of allowing the General Assembly to draw the map for a third time.
Catawba College political scientist Michael Bitzer, who follows state politics closely, said it's likely the court will follow this course of action.
The judges in the case are 4th Circuit US Court of Appeals Judge James Wynn andU.S. District Judge Earl Britt, appointed by Democrats, and U.S. District Judge William Osteen, a Republican appointee.
A previous redraw, in 2016, followed a separate federal lawsuit that found a racial gerrymander in two of the old districts. That case also went all the way to the U.S. Supreme Court.
The legislative majority blasted the court in its filing Friday, saying it "unleashed an avalanche of confusion" when it suggested delaying the election. Republicans also filed a notice of appeal to the U.S. Supreme Court in the case and asked the three-judge panel to issue a stay by Tuesday to keep this year's elections on track.
"The court should immediately stay its order, decline to meddle in an upcoming election, and calm the storm it has created," legislative attorneys wrote.
President Donald Trump mentioned the issue during his visit to Charlotte Friday, before news circulated of the new filings.
"It's very unfair," the president said. "You have an election in a little more than 60 days, and they change the district on you? And you've already won primaries. How does that work? The court system, OK. How does that work?
"I don't know," Trump said. "There has to be something going on there."
House Elections Chairman David Lewis, R-Harnett, said in a statement that it says a lot about the court's "radical order" that "leftist lawyers think the judges’ proposals are too impractical and disruptive."
Among other arguments, the GOP majority noted that the Supreme Court has not said partisan gerrymanders are unconstitutional. The high court delayed a decision on the question earlier this year, kicking North Carolina's case and others back down to lower courts.
Rick Hasen, a California professor who writes an election law blog, said Friday that not pressing North Carolina's case now likely means the state's districts won't be redrawn at all before the next census, after which districts are always redrawn.
President Donald Trump's new Supreme Court pick, Brett Kavanaugh, will likely be on the high court by the time this case gets there, shifting the court's ideological makeup, Hasen wrote.
The State Board of Elections and Ethics Enforcement also weighed in on the case Friday, saying that some of the options the court laid out earlier this week for delaying elections were logistically impossible. One could work, though, the board said: Holding congressional elections in December without primaries.
Regardless, implementing the new maps would likely cost the state about $9.5 million, the board said.
Indecision over the congressional districts is one of two issues delaying ballot printing ahead of the November elections. The other, ballot wording for two proposed state constitutional amendments, was heard in court Friday and could be decided by the end of the holiday weekend.