[EL] more on North Carolina

Sat Feb 20 13:34:20 PST 2016

    Did the Supreme Court Kill the “Purcell Principle” for Election
    Litigation? Maybe, Maybe Not <http://electionlawblog.org/?p=80165>

Posted onFebruary 20, 2016 1:26 pm 
<http://electionlawblog.org/?p=80165>byRick Hasen 
<http://electionlawblog.org/?author=3>

Last night the Supreme Courtrefused to stay 
<http://electionlawblog.org/?p=80149>a three-judge district court order 
which required North Carolina to come up with a new redistricting plan 
within two weeks which did not constitute a “racial gerrymander” 
violating the equal protection clause. The court issued the order when 
absentee balloting had already begun. It would require a new election 
under the new rules. I hadpredicted <https://t.co/DpqyCgnQAO> a stay of 
the district court’s order, based upon what I term in an upcoming 
paperthePurcell Principle 
<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2545676>.  Looking 
at the pattern of the 2014 emergency orders issued before the 2014 
election in cases from Ohio, North Carolina, Texas, and Wisconsin, it 
appeared the Supreme Court stopped courts from changing the rules of the 
game just before the election. So the Court said courts could not stop 
Texas from using its voter identification law before the election, but 
could stop Wisconsin, who was freed by the 7th Circuit to immediately 
use its law which had been put on hold. The difference appeared to be 
that Texas had already been using its voter id law but the id law had 
not been rolled out in Wisconsin before the 2014 election.

Talking about the Purcell principle (whose name comes from an earlier 
case where the Court stopped the 9th Circuit from putting a last minute 
stop to implementation of AZ’s voter id law, which was already underway) 
is guess work because these orders form part of what Will Baude calls 
theshadow docket 
<https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=1&cad=rja&uact=8&ved=0ahUKEwiQy5vXpIfLAhUC1mMKHYLNCYIQFggcMAA&url=http%3A%2F%2Fssrn.com%2Fabstract%3D2545130&usg=AFQjCNEvT1N91PkHPBedUR572iMLdHRd-g&sig2=yB7WCXg7is6t7zqKHBhWMQ&bvm=bv.114733917,d.cGc>: 
the Court decides these cases generally without issuing opinion or 
reasoning, and so we have to use concurrences, dissents, and other clues 
to figure out what’s really going on.

So was the Supreme Court’s decision to allow this last minute change to 
NC’s congressional elections a repudiation of the Purcell Principle, as 
some havesuggested 
<https://twitter.com/dale_e_ho/status/701040651736117248>? Perhaps.

To begin with,as I noted <https://t.co/DpqyCgnQAO> earlier this week, 
Justice Scalia’s death may have changed the calculation. I had assumed 
that Justice Kennedy (who I think would go along with the liberals on 
the merits of NC’s voting claim) could well be persuaded that changing 
the election date and rules this close to the election violated Purcell. 
  If all the conservatives agreed, that would have given 5 votes to stay 
the change for this election. With Scalia gone, perhaps the Court went 
4-4 on this issue.We don’t know <http://electionlawblog.org/?p=80149>, 
because the Court’s order denying the stay is just as consistent with a 
4-4 vote as a 0-8 vote for a stay.  So maybe the Purcell principle has 
lost its majority. Then again I counted Justice Breyer, one of the 
liberals, and perhaps Justice Kagan, as agreeing with the principle in 
part too, based on the votes in the 2014 cases. So maybe that’s not 
what’s going on.

Another possibility is that the Justices were too upset/preoccupied by 
Justice Scalia’s death to devote the energy to duking this one out. 
Given that the Court does not have to give reasons, a decision here has 
really no effect on other cases. The fact that the order came a few 
hours after NC notified the Court it HAD come up with a redistricting 
plan may have put some Justices at ease that the lower court order was 
not too onerous for the state. (Though the new lines could well bean 
overstep <http://electionlawblog.org/?p=80163>by the NC legislature, 
violating both section 2 of the Voting Rights Act and perhaps convincing 
Justice Kennedy there is a partisan gerrymander—having a 50/50 state 
divide congressional seats 10/3 looks pretty egregious.)

Further, it might be that this kind of case presents a different kind of 
concern than the other Purcell principle cases. In the 2014 elections, 
voting was already underway or about to start, and it was not going to 
be delayed. Here, there is considerable confusion, and voting has begun, 
but there will be ample time to educate the public in time for a special 
election in June.

The last possibility is that the Court /has/reconsidered the Purcell 
principle. In my paper, I argue that the principle is inconsistent with 
how the Court usually decides emergency litigation. Aside from the 
question of changing the rules in the process of the election, which 
goes to the public interest factor, the Court /should/consider 
irreparable harm to both parties and likelihood of success on the 
merits. So it might be that the Court used all of these factors, and 
Justice Kennedy and the liberals were persuaded not to grant a stay 
because NC is so likely to lose when the case comes up on appeal.

The worst part of all of this is that we have to guess. One 
recommendation I make in my paper for emergency election litigation is 
that the Court /should/explain itself, even if the explanation has to 
come later. Lower courts and litigants need guidance, which is sorely 
lacking in shadow docket cases.

As you can tell, this issue is quite difficult to disentangle, and 
raises difficult questions of institutional rules and competence to 
adjudicate these issues with a potentially deadlocked Court. So despite 
Marc Elias’sfacile 
<https://twitter.com/marceelias/status/700914435573968896>trolling 
<https://twitter.com/marceelias/status/700934882927779840>, it was 
reasonable to expect the Court to apply the principle again in this 
case, even though, after the death of one of the Justices, the Court did 
not.

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Posted inredistricting <http://electionlawblog.org/?cat=6>,Supreme Court 
<http://electionlawblog.org/?cat=29>

    “Supreme Court Won’t Intervene in North Carolina Election Fight”
    <http://electionlawblog.org/?p=80163>

Posted onFebruary 20, 2016 1:01 pm 
<http://electionlawblog.org/?p=80163>byRick Hasen 
<http://electionlawblog.org/?author=3>

Richard Fausset 
<http://www.nytimes.com/2016/02/20/us/north-carolina-fights-over-its-election-rules.html?_r=0>for 
the NYT:

    The court ordered the legislature to redraw the maps, and this week,
    lawmakers set about their work in a special session. But this time,
    there would be a key difference: Race would not be factored into the
    mapmaking at all.

    “Race was not considered, and is not present in these reports,”
    State Representative David R. Lewis, a Republican and co-chairman of
    the redistricting committee, told his colleagues on the House floor
    Friday. But Democrats argued that Republicans erred in ignoring race
    altogether. Representative G. K. Butterfield, an African-American,
    wrote to state legislative leaders, saying that the court “stated
    that race should not be the predominant factor in drawing the
    districts. However, the court did not say that race should not be a
    factor at all.”…

    House Democrats on Friday also assailed Republicans for stating that
    the new map was drawn up to ensure that they would enjoy a partisan
    advantage. While Democrats also acknowledged that their party had
    engaged in its share of partisan gerrymandering in the many decades
    that it controlled the legislature, they argued that Democrats did
    not engage in the practice to the same degree.

    State Senator Josh Stein, a Democratic candidate for attorney
    general, noted that North Carolina was the state that President
    Obama most narrowly won in 2008 and most narrowly lost in 2012.
    “North Carolina is a 50-50 state, and yet this map all but
    guarantees 10 out of our 13 congressional delegations will be
    Republican,” he said. “We live in North Carolina, not North Korea.
    The voters should choose their representatives, not the other way
    around.”

    Some Democrats were also hoping that the three-judge panel of the
    lower court would now reject the altered map on the grounds that it
    violated the Voting Rights Act. Republican legislators had held out
    hope on Friday that the Supreme Court would issue a stay.

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Posted inredistricting <http://electionlawblog.org/?cat=6>,Supreme Court 
<http://electionlawblog.org/?cat=29>

    “North Carolina redistricting delay denied”
    <http://electionlawblog.org/?p=80161>

Posted onFebruary 20, 2016 12:43 pm 
<http://electionlawblog.org/?p=80161>byRick Hasen 
<http://electionlawblog.org/?author=3>

Lyle Denniston for SCOTUSBlog: 
<http://www.scotusblog.com/2016/02/north-carolina-redistricting-delay-denied/>

    Without an explanation, the Supreme Court on Friday night left
    intact a lower court decision that had forced the North
    Carolina legislature to draw up a new election district map for
    congressional seats, to cure “racial gerrymandering” in two of its
    districts.  There were no noted dissents fromthe order.
    <http://www.scotusblog.com/wp-content/uploads/2016/02/15A809McCroryv.HarrisOrder.pdf>

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Posted inredistricting <http://electionlawblog.org/?cat=6>,Supreme Court 
<http://electionlawblog.org/?cat=29>

    “Supreme Court declines to intervene in North Carolina redistricting
    ruling” <http://electionlawblog.org/?p=80157>

Posted onFebruary 20, 2016 12:40 pm 
<http://electionlawblog.org/?p=80157>byRick Hasen 
<http://electionlawblog.org/?author=3>

Ariane de Vogue reports 
<http://www.cnn.com/2016/02/20/politics/north-carolina-redistricting-supreme-court/index.html>for 
CNN.

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Posted inredistricting <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
401 E. Peltason Dr., Suite 1000
Irvine, CA 92697-8000
949.824.3072 - office
949.824.0495 - fax
rhasen at law.uci.edu
http://www.law.uci.edu/faculty/full-time/hasen/
http://electionlawblog.org

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