In (what I consider to be) a surprising development, the Supreme Court has issued this order calling off special elections in North Carolina which had been ordered by a three-judge court following a finding of racial gerymandering. It is possible this order will be short-lived, as the Court will consider whether to take up the underlying appeal in the case at a conference in just 9 days.
As I explained in this initial post on the motion, back over the summer, a three-judge federal court found that a number of NC state legislative districts were unconstitutional racial gerrymanders. The state has an appeal of this ruling pending now at the Supreme Court, North Carolina v. Covington, No. 16-649.
The three-judge court at the time of the ruling declined to put a stop to the upcoming 2016 elections being held under the illegal lines. The court said it was too close to the election to make a change. The elections were held, and then in November the three-judge court ordered that the NC legislature create a new districting plan to fix the constitutional problems by March 15, 2017, and that there be special elections held in 2017.
The state of North Carolina asked the three-judge court to stay its own order pending an appeal to the Supreme Court. As that is pending, the state filed this emergency motion with Chief Justice Roberts asking for the Chief or the Court to stay the requirement for a special election, in essence pushing the matter to the 2018 elections and giving the new current legislature the freedom from a new round of redistricting and new elections. The petition requests an order before January 11, 2017, when the new NC legislature convenes.
The Court granted that motion today. Why is this surprising? It should take five Justices to grant a stay, and on the racial gerrymandering cases in the most recent case (from Alabama) Justice Kennedy sided with the four liberal Justices in holding that the Alabaman legislature, in some districts, appeared to make race the predominant factor in drawing lines, without adequate justification for doing so. There is another case from North Carolina (involving congressional districts) and one from Virginia raising similar issues this term. If the Court divides in those cases along similar lines, and if this North Carolina case is like the other North Carolina case, then NC would have a hard time winning on the merits (and therefore would not be entitled to a stay on appeal). Even without Kennedy, on an 8-Justice Court, if the Court divides 4-4 along ideological lines, there would be no stay issued.
So what happened? Maybe after conference in the other North Carolina case, the Court is poised to side for the state, and they expect the same thing will happen in this case. Reading the transcript of the earlier North Carolina case, Justice Breyer seemed to be struggling. So maybe it was Justice Breyer and the conservatives who are ready to pull back here. I’m not sure.
But I did not expect this ruling, especially given the fact that there has already been such a delay in getting relief in this case.
UPDATE: See my follow up post: Will the Supreme Court Put NC Special Elections Back for 2017? Not Likely