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UPDATED: NC Supreme Court denies appeals from all sides on redistricting

Congressional map could still see appeal to federal high court, but candidate filing with new maps opens Thursday.


Editor’s note: This story was updated at 8 a.m. Feb. 24 to include the appeal denials.

Within hours of a three-judge Superior Court panel’s decision in North Carolina’s redistricting lawsuit, all four parties involved filed appeals spanning hundreds of pages to the state Supreme Court. 

Then, at 10 p.m. Wednesday, the state Supreme Court denied every appeal. Candidate filing was set to open at 8 a.m. Thursday. 

County elections staff worked feverishly with the N.C. State Board of Elections ​​in the 20-hour window from when they received the latest maps to the opening of candidate filing to be ready to place state and local candidates in the right districts. 

“As elections officials, we have become accustomed to adapting to quick-changing situations,” said Pat Gannon, spokesperson for the State Board of Elections.

Elections officials had to rush to prepare, not knowing if any of the appeals would be successful and if filing would start on time or be delayed yet again

For now, it looks as if the 2022 primaries will be held May 17. But there’s one possible legal twist yet to play out.

Republican leadership in the legislature, named as defendants in the redistricting case, are unhappy with part of the Superior Court panel’s decision, claiming it violates the federal constitution. 

Now that their appeal has been denied by the state Supreme Court, the defendants have an option to appeal to the U.S. Supreme Court. Those appeals usually take some time, and the high court accepts very few cases. It turned down appeals based on similar federal arguments from North Carolina Republicans in November 2020.

But with one new conservative justice on the U.S. Supreme Court and a new federal hook for state Republicans, it’s anyone’s guess what will happen this time around. State Republicans have not yet released a formal statement saying they will make a federal appeal.

How we got here

The Superior Court panel, consisting of Judges Graham Shirley II, R-Wake, Nathaniel Poovey, R-Catawba, and Dawn Layton, D-Richmond, managed to upset every party with its ruling on the maps Wednesday. 

The judges were guided by three special masters — former state Supreme Court Justices Robert Orr and Robert Edmunds Jr. and former UNC System President and Superior Court Judge Thomas Ross — who were themselves assisted by four nonpartisan experts in political map-drawing. 

The state Supreme Court had tasked the judicial panel with judging whether redrawn political maps were fair under the state’s constitution after the higher court declared the Republican-controlled General Assembly’s previous maps to be unconstitutional partisan gerrymanders

In a unanimous decision Wednesday, the Shirley panel said the redrawn state House and Senate districts were constitutional. But the judges ruled that the redrawn U.S. congressional map was still not fair under the state Supreme Court’s new standards. 

As a remedy, the Shirley panel adjusted the General Assembly’s map to make it fair under political science measurements that the state Supreme Court had suggested, called “efficiency gap” and “mean-median difference.” This map, the panel suggested, could be used for the 2022 election, and the General Assembly could redraw the map that would be used from the 2024 elections until the state redistricted again in 2031. 

Legislative defendants appeal

Republican legislative leaders Phil Berger, Senate president pro tempore, and Tim Moore, House speaker, both among the defendants in this case for their official roles in drawing political maps, said they will challenge the panel’s decision on the congressional map. 

“Today’s ruling is nothing short of egregious,” Moore said in an official statement. 

“The trial court’s decision to impose a map drawn by anyone other than the legislature is simply unconstitutional and an affront to every North Carolina voter whose representation would be determined by unelected, partisan activists.” 

Each of the Superior Court judges is in fact elected, as are the Supreme Court justices who ruled the prior maps were unconstitutional and who will review the appeals. Judicial elections were nonpartisan for 22 years and were publicly financed for nine until the General Assembly, led by Moore and Berger, made the elections partisan again and eliminated public funding in 2018 and 2013, respectively. 

Legislative defendants think that Article 1, Section 4 of the U.S. Constitution, often called the “time, place and manner restrictions,” give state legislatures exclusive jurisdiction over drawing federal election districts. 

Under this argument, the state courts cannot legally intervene when the state legislature draws maps for federal elections. The state Supreme Court previously dismissed this claim, meaning the legislative defendants will likely have to appeal to the U.S. Supreme Court to have a chance to win on this argument. 

Plaintiffs appeal 

Three groups sued the state in November and December to block the political maps the Republican-led General Assembly passed over Democratic opposition. Those maps were the ones ultimately overturned by the state Supreme Court on Feb. 4.

The General Assembly had two weeks to redraw the maps to seek Superior Court approval on Wednesday. 

In the mirror image of the legislative defendants, all three groups suing the state supported the Shirley panel’s intervention on the congressional map. 

One group, the good-governance and nonpartisan nonprofit Common Cause, appealed both the state House and state Senate maps. 

The group recognized that the General Assembly passed the House plan with near-unanimous bipartisan support, yet still opposed it and the Senate map, passed by Republicans on strict party-line votes, because each map still “dilutes the voting power of Black communities and relies on misleading data to cover up extreme partisan gerrymanders,” according to the group’s press release. 

The Common Cause plaintiffs were especially focused on the voting power of Black North Carolinians in the eastern part of the state, centered on Wayne County for the House map and Edgecombe, Wilson and most of Wayne in the Senate map. 

“We appreciate the bipartisan efforts of the trial court and special masters to remedy illegalities in the congressional map, but justice that is partial is no justice at all,” said Hillary Klein, senior voting rights lawyer at the Southern Coalition for Social Justice, which represents Common Cause, in the press release. 

Two other two plaintiff groups, the nonpartisan N.C. League of Conservation Voters and the National Redistricting Foundation, which is backed by the national Democratic Party, appealed only the state Senate map

The NCLCV plaintiffs also asked for the U.S. congressional map to last the rest of the decade, rather than allowing the General Assembly to try drawing the map again. 

In its opinion, the Shirley panel stated North Carolina’s political geography, or the way Democratic and Republican voters self-sort in where they live, explains why the Senate map favors Republicans. Even so, the panel stated in its opinion, the difference is within the fairness boundaries the state Supreme Court laid out. 

In their appeals, both the NCLCV and foundation plaintiffs disputed the panel’s analysis and claimed the map would only ever allow Republicans to have a majority in the state Senate, despite North Carolina being near a 50-50 state in partisan vote share. 

Jordan Wilkie is a Report for America corps member and is the lead contributing reporter covering election integrity, open government, and civil liberties for Carolina Public Press. Email jwilkie@carolinapublicpress.org to contact him.

Carolina Public Press is an independent, in-depth and investigative nonprofit news service for North Carolina.

elections, redistricting, lawsuit, gerrymandering, General Assembly