[EL] 2016 Election Litigation Not Over Yet

[Rick Hasen]

NC Gov. McCrory, Day Before Leaving Office, Tries for Emergency SCOTUS Relief in Racial Gerrymandering Case<http://electionlawblog.org/?p=90201>
Posted on December 30, 2016 1:53 pm<http://electionlawblog.org/?p=90201> by Rick Hasen<http://electionlawblog.org/?author=3>
Back over the summer, a three-judge federal court found that a number of NC state legislative districts were unconstitutional racial gerrymanders. The state has an appeal of this ruling pending now at the Supreme Court, North Carolina v. Covington, No. 16-649.
The three-judge court at the time of the ruling declined to put a stop to the upcoming 2016 elections being held under the illegal lines. The court said it was too close to the election to make a change. The elections were held, and then in November the three-judge court ordered<http://electionlawblog.org/?p=89590> that the NC legislature create a new districting plan to fix the constitutional problems by March 15, 2017, and that there be special elections held in 2017.
The state of North Carolina asked the three-judge court to stay its own order pending an appeal to the Supreme Court. That motion remains pending, and ordinarily things would wait for the lower court order to issue.
But now, literally a day before leaving office, Gov. McCrory has filed this emergency motion<http://electionlawblog.org/wp-content/uploads/2016-12-30-Covington-Stay-Application-FINAL.pdf> with Chief Justice Roberts asking for the Chief or the Court to stay the requirement for a special election, in essence pushing the matter to the 2018 elections and giving the new current legislature the freedom from a new round of redistricting and new elections. The petition requests an order before January 11, 2017, when the new NC legislature convenes.
The petition, with Paul Clement as counsel of record, seems unlikely to succeed. To begin with, as noted, the Court would ordinarily wait for the lower court to rule before ruling itself. And although Jan. 11 is the beginning of the new NC term, nothing requires the legislature to begin work on the petition that day. The work must be done by March 15.  So this seems like an odd rush. Why not at least wait until after the first of the year to file this, so that Justice, clerk, and lawyer time can be better preserved over the holidays?
The timing is no mystery. McCrory leaves office tomorrow night. The new incoming governor, Roy Cooper, is a Democrat likely to have different views on these issues than McCrory.  Just as a Trump DOJ will differ from an Obama DOJ, the Cooper administration will differ on these issues from a McCrory administration.
The goal here is to preserve as much Republican power in the state as possible despite the election of a Democratic governor, attorney general, and now majority on the State Supreme Court. Republicans could suffer losses in 2017 elections, and this motion would forestall it. It is of a piece with efforts to take away Cooper’s appointment powers and to mess with the election commissions<http://electionlawblog.org/?p=90195> to take away Democratic majorities on those commissions.
On the merits, given that the lower court could have imposed new districts for 2016, it does not seem like a special election in 2017 is a great impingement on voters’ rights as the petition alleges. Indeed, the harm to the other side is two more years of districts found to be unconstitutional.
My guess is that the Court does not issue the stay, especially not a Court of 8 where Justice Kennedy has sided with the liberals in the recent racial gerrymandering cases. But what will be interesting to see is what the state of NC files after Cooper takes office, and if the legislature seeks to file its own papers adverse to the position of the state’s governor and attorney general.
UPDATE: More<https://www.buzzfeed.com/chrisgeidner/north-carolina-governor-moves-to-stop-special-legislative-el?utm_term=.egg0ovNJ7b> from Chris Geidner.
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Posted in election administration<http://electionlawblog.org/?cat=18>, redistricting<http://electionlawblog.org/?cat=6>, Supreme Court<http://electionlawblog.org/?cat=29>


--
Rick Hasen
Chancellor's Professor of Law and Political Science
UC Irvine School of Law
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