Breaking and Analysis: Three Judge Court in North Carolina Racial Gerrymandering Case Unanimously Adopts Special Master Plans for Remedying Violations; Next Stop SCOTUS?

In a unanimous and expected opinion and order (92 page pdf), the three judge court in the Covington case, on remand from the U.S. Supreme Court, adopted special master Nate Persily’s plan to adopt new legislative districts to cure the racial gerrymanders the court had found in certain state legislative districts. (It is notable that one of the judges on the panel, Judge Thomas Schroeder, was the district court judge which had rejected challenges to NC’s broad law constricting voting rights, a decision later reversed by the 4th Circuit. Judge Schroeder is fully on board here). Some of the criticisms of Persily’s work advanced by the NC legislative defendants were laughable.

It is quite possible that North Carolina will go to the Supreme Court to seek to stop these districts for being used in 2018, just as the state successfully stopped the order yesterday, in a separate case, to redraw the state’s congressional districts found by a lower court to be an unconstitutional partisan gerrymander.

There are two reasons to give such a stay order lower chances in this case. First, this is a case on remand from SCOTUS, where there have already been findings of a racial gerrymander. In contrast, at this point there is uncertainly whether courts will even have the power to rein in partisan gerrymanders. This is on the table in cases before the Supreme Court this term. Second, in this case there are already redrawn districts approved by the district court. There would not be a further delay in implementing an order. In the other case, there were no new districts drawn yet, and the process would have dragged out further.

Thus, although I think the Court has been very willing (too willing in my view) to make voters wait for remedies in redistricting cases, I think a request for a stay of the racial gerrymandering remedial order has a lower chance of success here.

That said, there will still likely be an appeal of the underlying ruling to the Supreme Court. The Court might agree to hear that case, but it could also simply affirm the lower court, which (given that this is the second SCOTUS rodeo) seems a real possibility.

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