Chief Justice John Roberts requested on Tuesday that a response be filed to an emergency request by North Carolina late last month that the 2017 special elections ordered by a federal court be put off as the case that prompted them — a major racial gerrymandering lawsuit — is appealed.
The move Tuesday was a fairly minor procedural move by Roberts, who oversees the Fourth Circuit Court of Appeals where North Carolina resides, but the emergency request suggests an attempt to put off special elections where Republicans risk losing seats with the redrawn districts. The state officials’ legal moves are also part of a series of last-ditch efforts by North Carolina Republicans to undermine incoming Democratic Gov. Roy Cooper.
In August, a three-judge federal appeals court panel ruled that 28 state legislative districts in North Carolina’s 2010 redistricting scheme amounted to unconstitutional racial gerrymandering that denied representation to black and Hispanic voters. The panel allowed the map to stay in place for the November elections, given the timing of its decision, but later ordered that the unconstitutional districts be redrawn in compliance with its decision in time for a 2017 special election, rather than wait for the 2018 election cycle. North Carolina had already appealed the decision on the merits, but on Friday state officials, represented by former U.S. Solicitor General Paul Clement, asked the Supreme Court in an emergency motion to intervene in the order calling for 2017 special elections. North Carolina claimed the order for a special elections was “the most extreme and intrusive remedy possible.”
As Rick Hasen, a professor at the University of California, Irvine School of Law, wrote on his Election Law Blog last week, the move was unusual for a number of reasons. For one, the usual protocol is to allow for lower courts to issue their own decisions before seeking a Supreme Court intervention. Secondly, North Carolina officials are asking for the matter to be decided by Jan. 11 — when the new state legislature convenes — even though they have until mid-March to draw the maps.
“The timing is no mystery,” Hasen wrote. “Just as a Trump DOJ will differ from an Obama DOJ, the Cooper administration will differ on these issues from a McCrory administration. Although the governor is not a party to the redistricting suit, the Governor and AG will likely express opinions in the litigation going forward, opinions adverse to the Republican legislature.”
The response to the state’s emergency motion are due Jan. 9.