Court, Down to Eight Justices, Faces North Carolina Deadline

The Supreme Court faces this week its first decision since the death of Justice Antonin Scalia in a case involving congressional districts in North Carolina, where state officials are under a lower court order to redraw district lines by Friday.

North Carolina Gov. Pat McCrory and state election officials have asked the justices to let them use the current congressional districts for the coming election. The Supreme Court was considering that request when Scalia died over the weekend.

Scalia's death increases the chances the court could tie 4-4 on whether to grant a stay of the court order. The four justices comprising the liberal wing of the court — Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor and Elena Kagan — could vote to deny the state’s request. They have tended to agree on issues that involve voting rights, but there is no certainty about their votes. 

Such a tie would leave in place the order from a three-judge panel, which found race predominated in the drawing of the state’s 1st and 12th Congressional Districts held, respectively, by Democrats G.K. Butterfield and Alma Adams, both African-Americans. The panel directed the state to draw new congressional districts by Feb. 19.

The Supreme Court was expected to weigh in before that deadline, and the justices had asked the plaintiffs to respond to the state official’s request on Tuesday, Feb. 16. 

The plaintiffs filed that response Tuesday, telling the justices that the state wants to delay a remedy for unconstitutional districts until the 2018 elections. That would allow the state “to utilize an unconstitutional congressional districting plan for nearly the entirety of the 2010s,” the plaintiffs said in the response.

North Carolina officials, who want to appeal the three-judge panel’s decision, told the court that the order could cause “massive electoral chaos” because the election process started months ago.

Thousands of absentee ballots have been distributed to voters who are filling them out and returning them. Hundreds of those ballots have already been voted and returned. The primary election day for hundreds of offices and thousands of candidates is less than 40 days away and, if the judgment is not stayed, it may have to be disrupted or delayed," the state's application says. 

“Early voting for the primary starts in less than 30 days," it says. "Candidates for Congress have relied on the existing districts for two election cycles (2012 and 2014) and filed for the current seats over two months ago.”

The short timeline for redrawing districts leaves the state unable to hold public hearings and seek the robust public input that was received in enacting the challenged congressional districts, the officials say.

“But in enjoining elections and providing only two weeks to draw new plans, the three-judge court provided no guidance to the state as to criteria it should follow for new congressional districts and sought no input from the parties regarding the massive electoral chaos and confusion to which such an order would subject North Carolina’s voters,” the officials state.

The state had moved its primary elections from May to March 15. A redistricting requirement would make it hard to hold that vote. 

Virginia Redistricting

Scalia’s death could also influence the outcome of a congressional redistricting case from Virginia. The Supreme Court is reviewing a lower court decision that called the majority-black 3rd District held by Democratic Rep. Robert C. Scott to be an unconstitutional racial gerrymander.

The court's decision was expected by the end of June, about four months before the election. It’s unclear, however, how the court will handle all cases or oral arguments in the wake of Scalia’s death. 

Earlier this month, the Supreme Court ordered Virginia’s 2016 congressional elections in November to move ahead using a judge-selected redistricting plan. That plan was put in place in January after a court called the 3rd District a racial gerrymander, despite a pending Supreme Court case about that redistricting plan.

In the Virginia case, the justices issued a one-line order to deny a request from 10 current and former Republican members of Congress to stop the redistricting plan for the November congressional elections. The court didn't give a reason for its decision.

The court sided with Virginia elections officials over the request from GOP Reps. Rob Wittman, Robert W. Goodlatte, J. Randy Forbes, Morgan Griffith, Scott Rigell, Robert Hurt, Dave Brat and Barbara Comstock, as well as former members Eric Cantor and Frank R. Wolf.

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