As readers may recall, back in June, the United States Supreme Court evaded ruling on the issue of partisan gerrymandering in three cases.  In particular, the United States Supreme Court declined to review the merits in a case out of Wisconsin based on a question of “standing” (who can bring a case), declined to review a case out of Maryland because the appeal was from a ruling on a motion for preliminary injunction rather than a final judgment, and opted to send a case from North Carolina back to the trial court to consider whether the other two rulings had any impact on the trial court’s ruling.  Earlier this week, a three-judge panel for the Middle District of North Carolina completed the reconsideration ordered by the United States Supreme Court and once again struck down the North Carolina congressional district map as an unconstitutional partisan gerrymander.

From the beginning, the outcome in North Carolina has mostly been about whether there is a way to make a partisan gerrymandering claim.  At the time that the legislature was enacting the current maps, the Republicans in North Carolina boasted that they drew the map to lock in a 10-3 advantage only because they could not find a way to draw a map that gave them an 11-2 advantage.  As detailed in the opinion, the redistricting committee only considered partisan data (after an earlier map had been struck down by the courts as a racial gerrymander, the goals of the committee expressly included drawing a 10-3 map, and the maps reflected lines that either split Democratic areas between Republican districts (cracking to avoid potential that including entire area might make a single district competitive) or put Democratic areas intact into districts that were already overwhelmingly Democrat (packing to avoid such voters having any influence in a competitive district).  Once the panel decided that  this summer’s opinions implicitly recognized that there could be a partisan gerrymandering claim, it was easy to find on multiple grounds that these maps were unconstitutional.

However, June’s decision to send this case back to the trial court created a problem with the trial court imposing a remedy.  As of Monday, when this decision came down, there were only ten weeks left until the November election.  The decision did leave open the possibility that the trial court would try to craft a remedy that could take effect in 2018 and gave the parties until Friday to make suggestions about how to proceed.   However, according to the latest reports, the plaintiffs (which include the North Carolina Democratic Party) conceded in their suggestions that there was no practical solution that could be completed in time to avoid disrupting the November elections.  (Additionally, if the trial court had tried to impose a remedy, the legislature could have asked the Supreme Court to issue a stay.  Depending on how long it took to craft a remedy, it is possible that Judge Kavanaugh would already be sitting as Justice Kavanaugh giving five votes for a stay.  Even if the confirmation process was not yet complete, there is a tradition of a “courtesy” fifth vote for a stay in cases that are divided 4-4. )

Based on Friday’s suggestions, it is likely that the trial court would order some type of process to draw new maps for 2020 (just in time for the process to start over).  And, it is likely that the legislature will appeal this decision to the United States Supreme Court — either just in time for an April 2019 argument or (more likely) late enough to get an October or November 2019 argument — meaning no decision until May or June 2020 at which point the case might be sent back on some minor flaw to avoid any need to resolve this issue before redistricting begins again in 2021.