Early voting is scheduled to begin in less than 50 days in North Carolina, but voters still don't know what will appear on the ballot, as litigation continues over the state legislature's power grabs and partisan gerrymandering.
The state's electoral uncertainty deepened on Monday, when a panel of three federal judges affirmed that North Carolina's congressional districts are unconstitutionally gerrymandered for Republican advantage, leaving open the possibility of redrawn maps in time for this year's election. The same day, state lawmakers responded to a separate lawsuit by finalizing language for two constitutional amendments on the ballot that would take the power to pick certain judges and the state elections board away from the governor and give it to the legislature. Also on that day, the state Court of Appeals struck down a recent law that barred a candidate challenging an incumbent Republican state Supreme Court justice from being listed on the ballot as a Republican.
The parties to the gerrymandering case will submit arguments this week on how the court should proceed. In a normal election cycle, an order to redraw gerrymandered maps at this point would threaten chaos. But given all the uncertainty already created by the legislature's continuing changes to the ballot, the idea of redrawing maps in the next few weeks doesn't seem so extreme.
The opinion by Judge James Wynn, an African American whose initial nomination to the 4th U.S. Circuit Court of Appeals in 1999 was blocked by Sen. Jesse Helms of North Carolina, discusses various possibilities for fixing the problem, which he noted has deprived the state's voters of "a constitutional congressional districting plan — and, therefore, constitutional representation in Congress — for six years and three election cycles."
For example, Wynn raised the possibility of holding a congressional primary election on the regularly scheduled November election date and then a special election before the new Congress convenes in January 2019. He cited this year's North Carolina judicial elections — which the legislature recently made partisan before canceling judicial primaries — as an example of how a partisan congressional election without primaries could work.
The ruling expressed doubt about giving legislators yet another chance to draw congressional districts, which were already redrawn in 2016 after a court ruled that the 2011 map discriminated against black voters. Noting that the legislature recently passed election-related laws that state and federal courts have struck down as unconstitutional, the panel called into question the N.C. General Assembly's "commitment to enacting constitutionally compliant, non-discriminatory election laws."
The court definitively stated that, at the very least, it would order new maps for the 2020 congressional election.
The Kavanaugh factor
Wynn's opinion outlined how extreme partisan gerrymandering violated the U.S. Constitution's requirement that "the People" — not state legislatures — elect members of Congress. When the current North Carolina congressional maps were being drawn, a legislative leader announced at a press conference that the goal was to create 13 districts likely to result in the election of 10 Republicans — even though the state's voters tend to split about evenly between the two major parties.
The panel also noted that the North Carolina legislature was "elected under one of the most widespread racial gerrymanders ever encountered by a federal court." This state-level gerrymander is now the subject of a pending lawsuit in state court in which the North Carolina NAACP and Clean Air Carolina argue that the unconstitutionally-elected legislature has usurped power and should be blocked from proposing constitutional amendments that would give it even more power.
The lower court ruled that the legislature's misleading ballot language describing two proposed constitutional amendments meant that they weren't truly "submitted" to the people, as the state constitution requires, but it rejected the "usurper" argument. The state Supreme Court intervened, however, and halted ballot printing until it can hear the case. Though Wynn's ruling relates to the legitimacy of congressional elections, the possibility of the federal court radically altering this year's election at such a late stage could embolden the state Supreme Court.
Meanwhile, North Carolina's legislative leaders have vowed to appeal the federal panel's ruling on the congressional maps to the U.S. Supreme Court. Redistricting cases are decided by federal three-judge panels and appealed straight to the high court, bypassing courts of appeal.
The high court would usually be expected to review the ruling, but since conservative Justice Anthony Kennedy retired in June, it has been evenly split 4-4 between conservatives and liberals. That means the court might be unable to decide whether to overturn a ruling requiring new maps to be drawn immediately. In the case of an evenly-divided Supreme Court, the lower court's ruling would stand.
However, Senate Republicans are rushing to get Trump Supreme Court nominee Brett Kavanaugh seated as soon as possible. His Senate confirmation hearing is set to begin Sept. 4, even though Democrats are protesting that only a fraction of the documents from his career are available. The rushed confirmation schedule is the culmination of the Senate's record pace of confirming Trump's judicial nominees despite concerns about their qualifications and a dramatic lack of diversity.
Kavanaugh would likely side with the other Republican-appointed justices to reject challenges to GOP gerrymandering and other forms of voter suppression. In his current position on the D.C. Circuit Court of Appeals, Kavanaugh rejected a challenge to South Carolina's voter ID law, which the U.S. Department of Justice found could impact 80,000 non-white voters who lacked the required ID.
Civil rights groups and progressives are mobilizing to oppose the Kavanaugh nomination and to demand disclosure of his full record before a confirmation vote. A recent CNN poll shows that Kavanaugh has the least public support of any judicial nominee since Robert Bork was nominated by President Reagan in 1987. The Senate ultimately voted against confirming Bork, who was opposed by civil rights groups for, among other things, defending poll taxes and literacy tests for voters. The seat was eventually filled by Anthony Kennedy.