[EL] SCOTUS order in NC case

[Rick Hasen]

    Breaking: SCOTUS, Without Noted Dissent, Denies Stay in NC
    Redistricting Case. What Does It Mean?
    <http://electionlawblog.org/?p=80149>

Posted onFebruary 19, 2016 7:08 pm 
<http://electionlawblog.org/?p=80149>byRick Hasen 
<http://electionlawblog.org/?author=3>

(I knew this would happen while I was (1) on a plane and (2) just 
finished my ELB blogging for the night.)

The Supreme Court, without noted dissent, hasdenied the stay 
<https://twitter.com/chrisgeidner/status/700876916623073280/photo/1>in 
the North Carolina redistricting case. What does this mean?

 1. Before the death of Justice Scalia, I had thought the Court would
    grant the stay, not because there would be a majority of Justices
    who would necessarily agree on the merits, but because there were
    likely at least 5 who would see the problem with changing the rules
    so close to the election (absentee ballots had already been voted in
    some races). (This is the “Purcell principle.”  If the Court divided
    5-4 before Scalia, it could now be evenly divided without Scalia.
      Because the Court isso opaque
    <http://electionlawblog.org/?p=79942>, especially on its ‘shadow
    docket,” we don’t know what the vote count is. It could be 4-4, it
    could be 3-5 or 0-8.  Justice Scalia’s absence might have been
    decisive here.
 2. What a mess in North Carolina. The state has passed a new
    redistricting law which not only changes all of the congressional
    districts; it also changes the timing of elections and eliminates a
    runoff primary. It is certainly a partisan gerrymander. What happens
    if the new plan is challenged as a partisan gerrymander?  In Vieth
    the Court divided 4-1-4. Now with Scalia is is presumably (we’re not
    sure because of some new Justices) 4 Justices that believe such
    claims raise constitutional problems, 1 (Kennedy) who is not sure,
    and 3 (from 4, now minus Scalia) who believe such claims are
    non-justiciable. Is there a new majority to police partisan
    gerrymandering?
 3. And it is quite possible that there could be a Voting Rights Act
    violation now. The problem with the last plan was that North
    Carolina took race /too much/into account. But now perhaps NC did
    not take race /enough /into account to assure that the districts
    comply with Section 2 of the Act, which requires the creation of
    majority opportunity districts under certain circumstances.
 4. It is quite possible that the 3-judge court then, seeing these
    potential problems, rejects the maps submitted by the state and
    orders its own maps. That would take some time, but with the primary
    now potentially put off until June there is time.
 5. Now of course virtually none of this would have happened if the
    Supreme Court had not ruled in /Shelby County /to strike down the
    trigger for the preclearance provisions of the VRA. North Carolina
    would have had to submit any new maps to DOJ, which then could have
    withheld preclearance if they made protected minority voters worse off.
 6. There’s a lot of confusion on the ground, and I expect that the
    three-judge court will quickly hold a hearing and figure out what
    the heck comes next. Wow!

[This post has been updated.]

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-- 
Rick Hasen
Chancellor's Professor of Law and Political Science
UC Irvine School of Law
401 E. Peltason Dr., Suite 1000
Irvine, CA 92697-8000
949.824.3072 - office
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rhasen at law.uci.edu
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http://electionlawblog.org

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