Got to give a lot of credit to these groups for making this conclusion, given the national stakes of fixing the partisan gerrymander in North Carolina’s congressional districts:
The Court asked the parties to “file briefs addressing whether [it] should allow the State to conduct any future elections using the 2016 Plan,” including specifically the November 6, 2018 general election for members of the House of Representatives. Mem. Op., Dkt. 142, p. 290. After careful consultation, particularly with the institutional clients Common Cause, the League of Women Voters, and the North Carolina Democratic Party, plaintiffs have reluctantly concluded that—on the unique facts presented here—attempting to impose a new districting plan in time for the 2018 election would be too disruptive and potentially counterproductive….
First, plaintiffs have considered the time that the map-drawing process would take and the uncertainty that would persist in the meantime. Whether the new plan is drawn by a special master or the General Assembly, creation of a new plan and its approval by this Court will take some weeks. For instance, if the plan is designed by the General Assembly, this Court has given the General Assembly until September 17, 2018 to draw a new map and has ordered the disclosure “soon after” that date of materials that bear on the fairness of that exercise. Mem. Op., Dkt. 142, pp. 292-93. Assuming the General Assembly meets the Court’s September 17 deadline, it would take a few days thereafter for the General Assembly to make its disclosure and for plaintiffs to consider those materials and file objections. The Court would then need a short time to consider the new plan and any objections, and either approve that plan or select instead one drawn by the special master. With that September 17 deadline, this process could not realistically be completed before October 1, 2018—at which point, there will be just five weeks before Election Day, and even less time before early voting is set to commence. Only then, once the new plan is approved, would candidates be able to declare themselves for the new districts and begin their campaigns. And only then would voters be able to be educated about the different candidates and their positions, which will be a particularly challenging exercise when voters change districts as a result of a new plan. In addition, while all of this is taking place, the Legislative Defendants would no doubt seek a stay from the U.S. Supreme Court. They have already informed plaintiffs in writing that they believe that the mere appointment of a special master “would constitute an abuse of the [C]ourt’s discretion,” and that “[i]f the [C]ourt appoints a special master, [they] will immediately appeal and seek a stay of any such order.” While plaintiffs vigorously disagree, they are mindful that, when this Court issued its ruling in January 2018, the Legislative Defendants sought, and obtained, a stay. At that juncture, there was ample time for the new court-ordered plan to be created and implemented in advance of the 2018 primary and general elections. Even so, the Supreme Court order granting the stay generated only two noted dissents, from Justices Ginsberg and Sotomayor. With the 2018 election now so much closer, plaintiffs cannot comfortably predict a different outcome. This could create a situation in which this Court orders a new map to govern on Election Day 2018, candidates and officeholders begin to act in reliance on that order, and the Supreme Court intervenes, changing the rules yet again.
With a Justice Kavanaugh on the Court by the time the Supreme Court reaches the merits, I expect there will never be a remedy for the partisan gerrymandering of these congressional districts.