Three state judges will decide soon whether North Carolina’s congressional maps should be redrawn before the 2020 election, a process that could delay the state’s March congressional primaries.
Judges heard arguments Thursday in the latest of a long line of redistricting cases, this one challenging North Carolina's congressional districts under the state constitution. That's a strategy that succeeded earlier this year in tossing the state's legislative district maps.
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Stanton Jones, lead attorney in both efforts, called the state's current congressional map "the most brazen and extreme gerrymander in American history."
Thursday's arguments centered largely on Jones' request for a preliminary injunction that would block the state from holding congressional elections under the current maps and create a process for drawing new ones. In a shift from previous cases, the State Board of Elections backed the call for an injunction.
The state board, which oversees elections, and its legal team avoided that sort of pronouncement in the past, but attorney Paul Cox said Thursday that "the facts underlying this case aren't new."
"This likely is a partisan gerrymander," Cox told reporters after oral arguments.
Cox is with the state Attorney General's Office, assigned to represent the elections board in this case. The board's own general counsel, Katelyn Love, noted that the board discussed the case in closed session recently, then declined to take a position.
Much of the discussion Thursday centered on whether there's enough time to redraw districts. North Carolina's primaries are scheduled for March 3, and candidate filing closes Dec. 20. Some candidates are already running, and an attorney for state legislators seeking to hold elections under the current map said $19 million has already been spent on congressional campaigns in North Carolina.
Katherine McKnight, an attorney for legislative leaders who drew the map in 2016, said there's no precedent for issuing an injunction this close to the start of election season, with the case just beginning.
"No court has done what plaintiffs are asking you to do," she said. "Many courts have prohibited it. ... Case after case after case says this will be too disruptive."
Wake County Superior Court Judge Paul Ridgeway, who heads the three-judge panel, noted the extensive federal court record available on the issues in play and asked McKnight whether that would speed this state-level case toward completion. McKnight said those records are available, but not sufficient.
A partisan gerrymandering argument against these districts went all the way to the U.S. Supreme Court earlier this year, producing reams of testimony and other evidence before the high court declined to condone or condemn partisan map-making, kicking the issue back to the states.
At the state level, this same three-judge panel – Ridgeway along with judges Joseph Crosswhite of Iredell County and Alma Hinton of Halifax County – handled the state legislative gerrymandering case earlier this year.
This case involves different districts but very similar arguments and many of the same attorneys.
The General Assembly's Republican majority drew the legislative maps, as well as the congressional map now under scrutiny. The congressional map was drawn after federal courts struck down the previous map as a racial gerrymander. One of the criteria given to the majority's map-maker, the late Tom Hofeller, required him to draw districts that protected the GOP's 10-3 advantage in the state's congressional delegation.
He did, and House Redistricting Chairman David Lewis famously announced that the map would elect 10 Republicans because he didn't think it could be drawn to elect 11.
This leaves no doubt that the map is a partisan gerrymander, Jones and other attorneys for plaintiffs challenging the map argued Thursday. In fact, it's the most extreme partisan gerrymander possible by Lewis' own admission, attorney Elisabeth Theodore said.
The plaintiffs in this case are voters in the congressional districts, but the effort has been funded by the National Redistricting Foundation, a nonprofit affiliated with former U.S. Attorney General Eric Holder. Holder is essentially the Democratic Party's lead on redistricting issues heading into the 2020 elections.
Ridgeway didn't say when the panel would decide on the preliminary injunction, other than to say it would be soon, given the time pressure. He asked during oral arguments about potentially delaying the March congressional primaries while all this is sorted out.
Attorneys for the Republicans predicted voter confusion.
"Changing election dates is brutal to voter turnout," McKnight said.
If the court does move the elections, only the congressional primaries would change. The state's presidential primaries and primaries in other state and local elections would remain in March. That happened in 2016, when the racial gerrymandering case delayed congressional contests.
The judicial panel decided one issue during Thursday's hearing: U.S. Reps. Virginia Foxx, Richard Hudson and Ted Budd will be allowed to participate. Their legal team spoke at Thursday's arguments and will be allowed to make arguments as the case goes forward.
They could also appeal the court's decision if the Republican legislators who are the lead defendants in this case decline to.