The death of U.S. Supreme Court Justice Antonin Scalia over the weekend has thrown the American political climate into chaos. Amid that upheaval, one of the first cases the remaining eight members of the court will decide concerns redistricting in North Carolina.
As CityLab reported last week, a federal court ruled on February 5 that North Carolina illegally used race as the predominant factor for redrawing its congressional districts in 2011. As a result, state legislators have been ordered to draw new, fairer districts by February 19—despite the fact that hundreds of residents have already mailed in absentee ballots for the March 15 primary election.
The state of North Carolina has asked a U.S. District Court court to suspend enforcement of the ruling until at least after that primary, a request the three-judge panel presiding over the case has refused. So the state appealed to the U.S. Supreme Court, which is currently mulling whether to delay the ruling. If the SCOTUS review of North Carolina’s appeal ends up as a 4-4 split, then the lower federal court ruling becomes the last word and the state redraws those districts.
There are alternative endings here: Chief Justice John Roberts could decide to rule on North Carolina’s appeal by himself. But, he’s been reluctant to rule on election cases in general if an upcoming election is too closely approaching, out of concern of voter confusion.
SCOTUS already voted on redistricting in Alabama last March, where, as with North Carolina, the justices said the state illegally used race to draw voter districts. They voted 5-4 in that case, with Scalia in the losing minority. With that vote, SCOTUS made it clear that racial gerrymandering is a critical problem that it would like to have ameliorated sooner rather than later. Similar redistricting cases out of Virginia and Arizona are also pending before SCOTUS.
But the question before the high court now is not whether racial gerrymandering is good or bad, but whether North Carolina should change its district map so close to an election. How a post-Scalia SCOTUS will vote on this is something that has stumped election-law experts, including the University of California-Irvine professor Richard Hasen.
No matter what Chief Justice Roberts’ court does, North Carolina has to find a way to move forward with its election while attempting not to flummox voters more than it already has—which is no small feat. The state also has to continue redrawing two of its districts , until or unless the Supreme Court stops it from doing so.
To that end, the state’s redistricting committee held six public hearings on February 15 to gather input on how to shape the new districts. According to the Raleigh News & Observer, the hearings drew close to 80 people—turnout was probably dampened due to a winter storm—and lasted more than five-and-a-half hours. Legislators on the committee will use that input, pending a SCOTUS ruling saying otherwise, to redraw the districts over the next couple of days, in time to meet the February 19 deadline.
North Carolina’s U.S. House Representative G. K. Butterfield, whose district will be affected by this process, has said that if state legislators are concerned that the changes are being made too close to an election, then the state should move the primary. It could be scheduled for May 24, which is currently the state’s primary runoff date, instead of March 15. The state general assembly just voted last September to move its primary up to March from its original May 8 date.
The state was advised not to move its primary date up so early for a number of reasons, in large part because there are so many unsettled election changes occurring. Besides the redistricting case, there’s also pending litigation around the state’s photo voter ID requirement, and even more pending litigation about recent changes made to cut early voting and eliminate same-day registration.
Challengers of these laws do not want North Carolina voters going to the polls this year without these matters being resolved. They want early voting and same-day voter registration restored, and the voter ID requirement, which experts say could disenfranchise hundreds of thousands of mostly black voters, removed. They also, of course, want districts redrawn in an un-gerrymandered way—and not just the two districts currently in question before SCOTUS. There are also additional pending lawsuits accusing the state of gerrymandering in both its congressional and legislative district maps. Civil rights groups have been preparing to take most of these cases to the U.S. Supreme Court if needed.
Meanwhile, people’s votes are at stake, especially for black voters who’ve long suffered from disenfranchisement throughout North Carolina’s voting history. Scalia typically would vote against civil rights interests in these cases. His absence gives civil rights groups a stronger shot at justice, but the complicating factor today is still the proximity to upcoming elections. There are justices like Sonia Sotomayor and Ruth Bader Ginsburg who strongly believe in upholding civil rights, but they also might not like interfering with state elections decisions if it would affect voters in the weeks leading up to casting ballots.
The prudent thing to do here would be for North Carolina to push its primaries back to May so that all of these wrinkles can get ironed out. State legislators created this chaos when they decided in recent years to make extreme changes to election laws in hopes of preserving power for the Republican party, and the voters know this. Scalia is no longer around to bail them out, so state legislators should take the extra time to think these problems through.