Earlier today, I blogged about the surprise order of the Supreme Court today putting a hold on 2017 special elections in North Carolina legislative districts ordered by a three judge court after a finding that the districts were unconstitutional racial gerrymanders.

I noted that the order could be short-lived, because the Court could take up whether to hear the underlying appeal of the case at its January 19 conference. This story in the News &  Observer incorrectly states that the order lasts only until a decision on the underlying appeal, which could come as soon as the Jan. 19 conference. In fact, the order itself contemplates that North Carolina will file a separate appeal on the question of the special elections, and the stay remains in place until the Court rules on that appeal.

So let’s game this out. It is possible (but not likely, for reasons I’ll explain) that the Court will issue an order soon after the Jan. 19 conference simply affirming the lower court ruling that NC engaged in an unconstitutional racial gerrymander. If the Court does that, then it would be hard to win an appeal on the setting of the special elections in 2017 (but still possible, as the Court may believe that too disruptive.)  If the Court decides to note jurisdiction and hear the underlying ruling, then this gets dragged out and it will be too late to set elections in 2017, which would end up coming too close to 2018 elections.

So here’s why it is unlikely the Court will simply affirm the lower court in the NC case: already before the Court (as I’ve noted in earlier posts) is another North Carolina case as well as a Virginia case raising questions about how to determine what constitutes an unconstitutional racial gerrymander. It seems quite possible that the Court holds all the other cases raising this same issue until those NC and VA cases are resolved. The Court would then send the held cases back to be reconsidered under the new standards. This suggests the Court either holds this case or notes jurisdiction (and potentially schedules briefing).

Further, when cases come up on appeal from a three-judge court rather than a cert petition, the Court is more likely to agree to hear the full case (because a decision not to hear an appeal (unlike a cert petition) counts as a decision that the lower court got its ruling right).

For all of these reasons, it is unlikely that this gets resolved soon after Jan. 19, and the special election put back on for 2017.

But this case has already surprised me….so let’s see what happens.