New Complications in NC Partisan Gerrymandering Case

Fascinating Lyle Denniston post:

Both sides in a new Supreme Court test case on partisan gerrymandering – drawing new election districts to favor one party – on Tuesday answered the Justices’ questions about whether the case should stay alive, disagreeing sharply on that.

But they also may have raised a broad new question about what voters challenging such partisan-driven maps must do to make a case.  If the Justices feel they have to rule on that issue, it could make a major difference to the future of such disputes.

Besides that added issue, the two sides’ new briefs may have stirred up a new controversy over who speaks for North Carolina in election cases.  That is a complication that led the Justices to refuse last month to decide a major voting rights case from the same state….

In the new filing. by lawyers for the two voters, they suggested that the answer should be “yes” to both questions: because the two voters had properly shown they would be harmed by the partisan congressional maps, and because the trial court had ruled against them, making its decision clear even though, they conceded, the court did not do so with the specific kind of order that the law governing such appeals might require.

In the new filing. by the state Board of Elections, its lawyers suggested “no” as the answer to each question: because the two voters had not shown how they would be harmed, because they did not even show that they were Democrats or that they lived in districts that had been gerrymandered, and because the law on appeals in such cases is clear about the kind of lower court order that must be issued to resolve the case in the trial court….

That is the most consequential issue that might have surfaced in the new filings.  But the problem of who speaks for North Carolina, as a legal matter, has risen up again between the lines of the two new filings.

The “Cooper” whose name is in the title of this case, and of the earlier one decided in May, is Roy Cooper, who is the new Democratic governor of North Carolina, succeeding a Republican governor whom he defeated and who had been sued in the case by the two voters.

The voters’ lawyers noted in their filing that the state Board of Elections – also sued, along with the governor – no longer exists in North Carolina (it has been replaced by a new agency not yet in place), so Governor Cooper, the filing suggested, is the only party representing the state still in the case.

The Board’s filing was done by the lawyers in the name of that agency before it was abolished by the state legislature.  It does note, in a footnote at the end, that Governor Cooper “does not join this brief,” adding that he “does not object” to the views spelled out on the two questions by lawyers for the two voters.

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