(I knew this would happen while I was (1) on a plane and (2) just finished my ELB blogging for the night.)
The Supreme Court, without noted dissent, has denied the stay in the North Carolina redistricting case. What does this mean?
- Before the death of Justice Scalia, I had thought the Court would grant the stay, not because there would be a majority of Justices who would necessarily agree on the merits, but because there were likely at least 5 who would see the problem with changing the rules so close to the election (absentee ballots had already been voted in some races). (This is the “Purcell principle.” If the Court divided 5-4 before Scalia, it could now be evenly divided without Scalia. Because the Court is so opaque, especially on its ‘shadow docket,” we don’t know what the vote count is. It could be 4-4, it could be 3-5 or 0-8. Justice Scalia’s absence might have been decisive here.
- What a mess in North Carolina. The state has passed a new redistricting law which not only changes all of the congressional districts; it also changes the timing of elections and eliminates a runoff primary. It is certainly a partisan gerrymander. What happens if the new plan is challenged as a partisan gerrymander? In Vieth the Court divided 4-1-4. Now with Scalia is is presumably (we’re not sure because of some new Justices) 4 Justices that believe such claims raise constitutional problems, 1 (Kennedy) who is not sure, and 3 (from 4, now minus Scalia) who believe such claims are non-justiciable. Is there a new majority to police partisan gerrymandering? [Update: I’m having doubts about my point about the partisan gerrymandering. I guess it depends on how we would count Justice Kennedy’s vote in such a case. Probably more likely it would be a 4-4. Do others see it this way?]
- And it is quite possible that there could be a Voting Rights Act violation now. The problem with the last plan was that North Carolina took race too much into account. But now perhaps NC did not take race enough into account to assure that the districts comply with Section 2 of the Act, which requires the creation of minority opportunity districts under certain circumstances.
- It is quite possible that the 3-judge court then, seeing these potential problems, rejects the maps submitted by the state and orders its own maps. That would take some time, but with the primary now potentially put off until June there is time.
- Now of course virtually none of this would have happened if the Supreme Court had not ruled in Shelby County to strike down the trigger for the preclearance provisions of the VRA. North Carolina would have had to submit any new maps to DOJ, which then could have withheld preclearance if they made protected minority voters worse off.
- There’s a lot of confusion on the ground, and I expect that the three-judge court will quickly hold a hearing and figure out what the heck comes next. Wow!
[This post has been updated.]