NCGA attorneys to court: We would have to redraw more than 100 districts


Dan Way - Carolina Journal



RALEIGH — Legislative lawyers told a three-judge federal panel handling a redistricting lawsuit a special General Assembly election this year would affect nearly two-thirds of the districts in the state, cost $20 million, and force lawmakers to violate several other constitutional provisions.

In a 32-page argument filed Thursday in the U.S. District Court for the state’s middle district, attorneys for the legislature said electing legislators in new districts during the regular 2018 election cycle would avoid all those problems and not throw state government into near-chaos.

The panel ruled in the so-called Covington case that race was a predominant factor in how nine Senate and 19 House districts were drawn in 2011. The U.S. Supreme Court upheld the ruling last month, but returned the case to the trial court.

The justices ruled the three-judge panel failed to justify the disruptions a special election this year would cause.

The legislative lawyers noted that the judges’ ruling made “no finding that the General Assembly acted in bad faith or with discriminatory intent.” Ordering a special election is an extreme response that should be reserved for only the most egregious violations, they said.

The document said the court’s order to redraw electoral maps and hold a special election in the challenged districts actually would affect up to 81 of 120 House seats, and 35 of 50 Senate seats.

Districts must comply with five previous state Supreme Court decisions requiring counties to be grouped into districts. Creating new boundaries for the 28 challenged districts would spill over to adjacent districts.

“There is no precedent for a court requiring special elections and truncating the terms of office set by a state Constitution for over 60 percent of the state’s legislature to run for office in three different primary and general elections during a two-year period,” the lawyers argued in their position statement.

Moreover, Gov. Roy Cooper has failed to appoint members to the newly created North Carolina Bipartisan State Board of Elections & Ethics Enforcement, which has assumed the duties of the former State Board of Elections. Cooper has fought and failed in court challenges arguing that the new agency unconstitutionally violates separation of powers.

“[U]nless and until the governor makes appointments, the State Board is unable to adjust any portion of the election schedule set by law, such as the length of the absentee voting period or the dates of a primary or general election,” Kim Westbrook Strach, executive director of the State Board, wrote in a declaration filed with the statement.

Changes to election schedule laws can be made only by the General Assembly or a court order.

The attorneys also argued that:

• Special elections disrupt the decision-making process, and impose heavy campaign costs on candidates, and election expenses on local governments.

• Lawmakers just six months into their terms would do more campaigning than they would governing.

• Lawmakers would have greater incentive to cater to voters in their new districts than those who already elected them.

• The 2011 redistricting process the judges challenged spanned five months and involved extensive statewide input. Satisfying the court’s redistricting demands for a November or January special election would short-circuit that process.

• Ordering a special election would cast aside the state’s sovereign determination on how best to structure its own government.

• Ordering a special election would require the court to suspend the state constitution’s process for how and when the legislature convenes and conducts the public’s business.

• A special election would cut lawmakers’ terms from two years to one, which would counter the constitution.

• Holding a special election almost certainly would eliminate any runoff primaries, and shorten absentee voting periods, harming military voters. The early voting period might have to be shortened, making possible a challenge the special election period would discriminate against minority voters.

Dan Way

Carolina Journal

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