On Tuesday, the U.S. Supreme Court granted Republican legislators in North Carolina their request for a stay of a lower court decision that had instructed lawmakers to draw new legislative maps and hold special elections using the revised lines this fall. Last year, a three-judge district court panel found that the state's legislative districts violated the Constitution by packing black voters into as few seats as possible, thus undermining their political influence, and ordered special elections under new maps as a remedy. Republicans quickly appealed that ruling to the Supreme Court, which has now put it on hold while it decides whether to take up the appeal.
These gerrymandered districts—and the legislators they helped elect—will now remain in place, at least until the Supreme Court determines if it will hear the GOP’s appeal. (The justices will consider the question on Jan. 19.) It’s important to note, though, that this ruling doesn’t automatically mean the court will take the case, and if it declines, the lower court’s decision will go back into effect.
What will happen next is uncertain. Election law expert Rick Hasen calls the stay “surprising,” since it takes five votes (even on an eight-member court) to grant one. In past cases on racial gerrymandering, the court’s swing justice, Anthony Kennedy, has generally sided with the four-member liberal bloc, but even if he’d joined with the doctrinaire conservatives here, at least one liberal would have had to do so as well in order for the stay to issue. However, we don’t know who voted for the stay or why; it’s possible, for instance, that some justices who are amenable to the racial gerrymandering claims on the merits were uncomfortable with the lower court’s insistence that special elections take place this year.
But while it takes five votes to issue a stay, it only takes four votes to decide to hear an appeal, so the three hardcore conservatives only need one ally to make that happen. And they’d have an interest in doing so: If they can delay the matter until a Donald Trump appointee can replace the late Antonin Scalia, the conservatives would have a stronger chance of putting together a majority to overturn the district court.
And if the Supreme Court does wind up siding with the GOP, that would represent a major blow to voting rights and to Democrats, since North Carolina voters have already participated in three elections this decade that have used blatantly gerrymandered districts like those shown in the map at the top of this post.
Indeed, the lower court had invalidated 28 of 170 legislative districts across the state, which would have required many more districts to be redrawn in order to fix those that were impermissibly flawed. And with Republican lawmakers so implacably hostile to newly elected Democratic Gov. Roy Cooper that they sought to roll back democracy itself in an effort to strip him of his powers, special elections would have been the quickest way for Democrats to break Republicans’ veto-proof legislative majorities and force them to the bargaining table.
But even if the Supreme Court ultimately sides against Republicans or declines to take the case, the matter might not get resolved for some time. And the longer the wait, the less likely it becomes that special elections this November are a feasible option. Even if these districts are ultimately deemed illegal, Republicans will have gotten away with them for most of the decade, meaning it pays to violate the law on redistricting.
