Breaking: Supreme Court Summarily Affirms NC Racial Gerrymandering Case, Revives Chance of Special Election in 2017 Pending New Hearing

The Supreme Court without noted dissent has summarily affirmed in North Carolina v. Covington, a  racial challenge to state leg. districts, at SCOTUS (Justin’s summary). The lower court had ordered North Carolina to run special elections in 2017 to cure the racial gerrymander. The Supreme Court had put that on hold after the state requested a stay.

Today the Supreme Court in an unsigned (per curiam) opinion wrote that the lower court was too cursory in deciding whether or not a special election made sense, and it remanded for a new hearing with a more nuanced analysis.  From the per curiam (appearing at the end of the order list):

Relief in redistricting cases is “‘fashioned in the light of well-known principles of equity.’” Reynolds v. Sims, 377 U. S. 533, 585 (1964). A district court therefore must undertake an “equitable weighing process” to select a fitting remedy for the legal violations it has identified, NAACP v. Hampton County Election Comm’n, 470 U. S. 166, 183, n. 36 (1985), taking account of “‘what is necessary, what is fair, and what is workable,’” New York v. Cathedral Academy, 434 U. S. 125, 129 (1977). And in the context of deciding whether to truncate existing legislators’ terms and order a special election, there is much for a court to weigh. Although this Court has never addressed whether or when a special election may be a proper remedy for a racial gerrymander, obvious considerations include the severity and nature of the particular constitutional violation, the extent of the likely disruption to the ordinary processes of governance if early elections are imposed, and the need to act with proper judicial restraint when intruding on state sovereignty. We do not suggest anything about the relative weight of these factors (or others), but they are among the matters a court would generally be expected to consider in its “balancing of the individual and collective interests” at stake. Swann v. Charlotte-Mecklenburg Bd. of Ed., 402 U. S. 1, 16 (1971).

Rather than undertaking such an analysis in this case, the District Court addressed the balance of equities in only the most cursory fashion. As noted above, the court simply announced that “[w]hile special elections have costs,” those unspecified costs “pale in comparison” to the prospect that citizens will be “represented by legislators elected pursuant to a racial gerrymander.” App. to Juris. Statement 200. That minimal reasoning would appear to justify a special election in every racial-gerrymandering case—a result clearly at odds with our demand for careful case-specific analysis. For that reason, we cannot have confidence that the court adequately grappled with the interests on both sides of the remedial question before us. And because the District Court’s discretion “was barely exercised here,” its order provides no meaningful basis for even deferential review. Winter v. Natural Resources Defense Council, Inc., 555 U. S. 7, 27 (2008).

For these reasons, we vacate the District Court’s remedial order and remand the case for further proceedings consistent with this opinion.

This leaves open the possibility that on remand the lower court can conduct a new hearing, and issue a more nuanced order that puts special elections in place for 2017. That will be much harder, now that we are in the middle of 2017, but it is not impossible. If the lower court orders it, North Carolina may be back before the Supreme Court again seeking a new stay (full employment for NC election lawyers continues!).

Still pending is Harris v. Cooper, a partisan gerrymandering challenge to the remedy in the congressional case. The Court has ordered new briefing due June 6 on this question. Perhaps the Court will vote to hear this one or hold it for the Wisconsin partisan gerrymandering case also coming up at June conference. But there may be procedural issues there.

On the merits, the balancing test that the Court puts forward for when a special election should be held makes great sense, and will extend beyond the racial gerrymandering cases. Indeed, with this new multipart test (“the severity and nature of the particular constitutional violation, the extent of the likely disruption to the ordinary processes of governance if early elections are imposed, and the need to act with proper judicial restraint when intruding on state sovereignty”) I would expect plaintiffs to now ask for special elections more regularly and courts applying these sensible factors. So a ruling counseling restraint might actually create more disruption.

[This post has been edited.]

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