As reported in depth here Thursday, events are now rapidly unfolding in the previously long, slow, grinding war against gerrymandering in North Carolina, as friends of democracy press their sudden advantage (last Monday’s SCOTUS decision) to flank the enemy — the state’s unlawfully constituted, GOP-dominated state legislature. Years of indecisive trench warfare against 2011’s race-based gerrymander of General Assembly districts has suddenly become a breakout rout.
Events continue to accelerate:
- As previously discussed, on Wednesday Gov. Roy Cooper (D) ordered the General Assembly into special session to draw new, race-neutral legislative districts within two weeks, but the legislature’s GOP leadership defied that order.
- Fast on the heels of the GOP’s incomprehensible move, attorneys for the victorious plaintiffs in Covington v. North Carolina filed a motion for the U.S. District Court to “expeditiously consider and order relief,” by imposing a strict deadline for the legislature to act: fourteen days to draw and adopt a new map, backed up by a grant for the plaintiffs to submit their own map for the court’s consideration if the legislature misses that deadline.
Tempus is fugiting as the legislature is looking to end this year’s session in early July and get the hell outta Dodge. Signaling its sympathy for plaintiffs’ sense of urgency, on Friday the court took the unusual step of issuing a notice to all parties (before the paperwork was even completed officially handing jurisdiction back from SCOTUS to the lower court), warning:
the Court intends to act promptly on this matter upon obtaining jurisdiction from the Supreme Court. To that end, the Court invites the Legislative Defendants, the Board of Elections, and the State to submit position statements addressing Plaintiffs’ motions as expeditiously as possible [including:]
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Describing what steps, if any, the State of North Carolina has taken to satisfy its remedial obligations under this Court’s August 15, 2016, Memorandum Opinion and Order; and
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If the State has failed to take any meaningful steps to satisfy its remedial obligations under this Court’s August 15, 2016, Memorandum Opinion and Order, addressing whether the State is entitled to any additional time to comply with the Court’s August 15, 2016, Memorandum Opinion and Order.
This is the court’s judiciously refined way of saying to the North Carolina legislature: “give us one good reason why we shouldn’t slap you silly.” And it explicitly opens the door for “the State” (in this case, Gov. Roy Cooper) to reply “Lord knows the legislature has already had every opportunity to draw new maps, as the court ordered it to all the way back in 2016. So it’s time for the court to take the redistricting pencil away from the legislature, and do the job itself.”
The court has several potential options to choose from at this point if it should decide, as this Notice suggests it might be inclined to, that the State is not entitled to any additional time to draw new maps. It could, potentially, draw its own damn map and shove it down the state legislature’s throat. But this option is judged the least likely by attorneys I’ve spoken with this week — doing redistricting right is complex, specialized work that is hardly within the court’s field of expertise, and could lead to yet further delays.
Alternatively, it could simply invite the plaintiffs to submit their own map for the court’s consideration. Count on plaintiffs’ attorneys (Durham-based Southern Coalition for Social Justice and its formidable Anita Earls) to already have such an alternative — and carefully equitable — map already in hand.
Thirdly, the federal court could ‘certify’ the matter to the state supreme court. Certification is what a federal court does when, in the midst of a federal suit, it stumbles upon an issue that it judges to be more properly a matter of state rather than federal law. This could be a favorable outcome for friends of democracy, given that a 4:3 majority of NC Supreme Court justices are considered to be liberals. But it would certainly involve additional delays as the state Supreme Court ramped up to speed. And the federal court has pretty much made it clear that it finds the prospect of further delays intolerable.
Finally, the court could hand the redistricting pencil over to an appointed Special Master: a non-partisan and expert redistricting pro whose computer is, no doubt, already booted up and itching’ to go. This might well be the fastest and least risky route to a new and better map.
Faced with these four equally unappealing alternatives, GOP state legislators really have only two options left: (1) come clean and admit that they’re already sitting on a secret new map, carefully crafted to attempt to avoid any semblance of racial bias while still packed with unfair GOP advantage; or (2) kiss their chance to draw the new map goodbye.
The midnight oil will be burning all weekend in GOP legislators’ caucus room, in the governor’s office, and at the State Board of Elections, as all three scurry to craft strategic responses to the court’s ‘invitation.’ A lot will depend on the case that “State Defendant” Gov. Cooper makes in his own reply, because Coop currently holds all the cards.
Stay tuned. This is wildly exciting stuff, being present at the sudden, utterly unexpected rebirth of democracy in the Tar Heel State. It really is always darkest just before the dawn.