The Republican leadership in Raleigh wants the US Supreme Court to strike down a lower court’s order to redraw legislative districts ruled to be unconstitutional racial gerrymanders.

The Republican-controlled General Assembly wants the US Supreme Court to intervene against a court order to redraw state legislative districts before the body convenes on Jan. 11.

Lawyers for Senate President Pro Tem Phil Berger and House Speaker Tim Moore filed an emergency application to stay the order to US Supreme Court Chief Justice John Roberts on Dec. 30, pleading the cause of state’s rights.

“The order deals a coup de grace to federalism, trampling on all three branches of state government and the voting rights of the people themselves: It effectively overrules a judgment of the state supreme court; it modifies the constitutional requirements for service in the state legislature; it forces newly elected state legislators to spend the critical first weeks and months of their terms creating new districting plans instead of following through on their campaign promises; it orders the elections board to fund and administer special elections; and it retroactively reduces the effect of millions of votes cast by North Carolinians,” the application reads.

“If respect for the dignity and residual sovereignty of the states is to mean anything in this context, it must at least mean that a federal district court may not inflict those harms upon a sovereign state and its voters without any discussion of the competing equities and before this court can review the merits of the underlying decision that ostensibly justifies this wholesale disregard of state authority,” the application continues.


In their appeal to Chief Justice Roberts, state legislative leaders are reaching out to the author of the infamous 2013 Shelby v. Holder decision, which lifted the requirement that jurisdictions, including some counties in North Carolina, with a history of discrimination obtain preclearance from the US Justice Department to make electoral changes. Soon after the decision, the General Assembly passed what is widely considered to be the most restrictive voting law in the country. The law was upheld by US District Court Judge Thomas Schroeder, but overturned on appeal last year by a three-judge federal panel that included Judge James A. Wynn. The court found that the law targeted “African Americans with almost surgical precision.”

In a separate opinion written by Judge Wynn in August, the courts found that 28 legislative districts drawn in 2011 to include large concentrations of African-American voters “constitute racial gerrymanders in violation of the Equal Protection Clause of the United Sates Constitution.” Judge Schroeder, who had ruled opposite Wynn in the election law case, joined Wynn in the opinion, along with US District Court Catherine Eagles. At the time, the three-judge panel concluded that, despite the unconstitutionality of the current Republican-drawn plan, ordering the postponement of the November 2016 election would “create considerable confusion, inconvenience, and uncertainty among voters, candidates and election officials.” Then, on Nov. 29, the judges issued an order setting a March 15 deadline for the General Assembly to redraw the 28 districts. Noting that the General Assembly had taken no action on the matter to date, Wynn wrote, “Nothing has prevented the state from holding hearings, commissioning studies, developing evidence and asking experts to draw proposed new districts over this three-month period.” The March 15 deadline is reasonable, Wynn wrote, considering that it “gives the state a total of seven months from the time the districts were held to be unconstitutional, which is longer than it took the 2011 legislature to redistrict the entire state.”

The courts have ordered the state to hold a special primary election for the affected districts in late August or early September and a special general election in early November — a schedule that aligns with many municipal elections across the state, including races for Greensboro City Council. The General Assembly is ordered to redraw 28 new legislative districts, including state House districts 57, 58, 60 and Senate districts 28 and 32 in Guilford and Forsyth counties, and any other districts that need to be redrawn due to a ripple effect. The defendants have said that 70 percent of all districts will likely be affected. In ruling that the state legislative districts are unconstitutional, Wynn turned to the Supreme Court’s 1993 Shaw v. Reno decision, which found that racial gerrymandering “reinforces the perception that members of the same racial group… think alike, share the same political interests, and will prefer the same candidates at the polls.” The Shaw decision — dealing with North Carolina’s serpentine 12th Congressional District, which at the time snaked along Interstate 85 from Durham to Charlotte — also found that race-based districting sends the “pernicious” message to representatives that “their primary obligation is to represent only the members of [a single racial] group.”

The three-judge panel that recently overturned North Carolina’s state legislative districting plan concluded “that race was the predominant factor motivating the drawing of all challenged districts,” adding that “defendants have not shown that their use of race to draw any of these districts was narrowly tailored to further a compelling state interest.”

Specifically, the courts found that the General Assembly failed a crucial test required for the permissible use of race as a factor in redistricting — evidence of “racial bloc voting that, absent some remedy, would enable the majority usually to defeat the minority group’s candidate of choice.”

Wynn wrote in his order that Sen. Bob Rucho and Rep. David Lewis, the two redistricting chairs, testified during the trial “that they never made any determination whether majority bloc voting existed at such a level that the candidate of choice of African-American voters would usually be defeated without a VRA remedy.”

Wynn said Rucho and Lewis misinterpreted the law in presuming they were obligated to draw districts with a black voting age population of 50 percent or more. “Proportionality should not be sought if it requires destroying ‘communities in which minority citizens are able to form coalitions with voters from other racial and ethnic groups, having no need to be a majority within a single district in order to elect candidates of their choice,’” he wrote. “In other word, proportionality is not required, not a safe harbor, and not to be pursued at the cost of fracturing effective coalitional districts.”

State Senate District 28, which covers a large portion of Greensboro and then reaches over to grab a chunk of African-American voters in High Point, is illustrative. A so-called “coalition” or “crossover” district, it held a black voting population of 47.2 percent in the 2010 Census. Katie Dorsett, an African-American lawmaker, who held the seat until that year, won successive elections in the district without difficulty. Gladys Robinson, her chosen successor, won election in the district in 2010, and the next year the General Assembly redrew the lines to increase the black voting age population to 56.5 percent, transforming it into a minority-majority district.

In a so-called “jurisdictional statement” filed in the US Supreme Court on Nov. 15, the Republican General Assembly leaders complained that “plaintiffs want to further constrain the legislature by forcing it to draw coalition or crossover districts instead of majority-minority districts, which will produce the fully intended side-effect of requiring the Republican-controlled legislature to maximize Democratic partisan advantage.”

Wynn’s order indicates the courts will keep a close watch on how many black voters the Republican mapmakers concentrate in the newly drawn districts: The order requires the General Assembly to provide a factual basis tethered to the Voting Rights Act as justification for any district drawn with a black voting age population in excess of 50 percent.

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