What’s Going to Happen with a Challenge to North Carolina’s Congressional District Partisan Gerrymander? Two Significant Hurdles to a Lawsuit.

Democrats are now pondering a state court challenge to North Carolina’s partisan gerrymandering of the state’s 13 congressional districts, following a state court ruling that the state legislative districts are a partisan gerrymander. The U.S. Supreme Court in the Rucho case rejected a challenge to North Carolina’s congressional districts based on the U.S. constitution but that would not preclude a state constitutional challenge. But there are two significant hurdles.

First, it is not clear that there is enough time to bring such a challenge and get it done in time to affect the 2020 elections, the last elections to be used under the existing maps before the next round of redistricting. I am surprised there was not a state case against the congressional districts in the works earlier, and given discovery and potential appeals, and the upcoming calendar, it may just be too late. Even if state courts do not follow the Purcell Principle, at some point changing district lines comes too late.

Second, it is not clear to me that the ruling earlier this week has any precedential value in a challenge to congressional maps. Nick Stephanapoulos writes: “the North Carolina decision is just as applicable to congressional as to state legislative districts. North Carolina’s gerrymandered congressional plan—the plan the Supreme Court failed to invalidate in Rucho—is thus on thin ice. And so will be any efforts by the North Carolina legislature to gerrymander (or even to consider partisanship) in the 2020 redistricting cycle. As long as the North Carolina decision remains good law, North Carolina maps must be nonpartisan.” But I’m not sure that this is right.

The recent state decision was a state trial court, and I do not know that it is binding precedent in any challenge to the congressional maps. Perhaps under North Carolina law the new challenge would go before the same three-judge court. If not, generally speaking, trial court rulings are not precedential for other trial courts. Indeed, as I’ve explained, one of the reasons that North Carolina Republicans may have thrown in the towel on the state legislative race was to avoid a likely adverse opinion from the state supreme court, which would have been a definitive ruling on the meaning of the state constitution.

So we will see what the next steps bring, but it is far from automatic that those congressional districts get changed for 2020.

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