(North Carolina Administrative Office of the Courts via AP)
By Bryan Anderson, WRAL statehouse reporter
RALEIGH, N.C. — The arguments have been heard and the waiting game for voters, lawmakers and advocacy groups has begun.
North Carolina’s Supreme Court will soon decide whether maps Republicans approved in November can go forward.
The maps, as they stand, are highly favorable to Republicans. The decision will impact the extent of a GOP advantage in a state that is nearly evenly decided and stands to influence President Joe Biden’s ability to carry out his legislative agenda.
Whatever the court decides is likely to shape political power in the state for the next decade. If the maps are struck down, Democrats could see a more favorable political environment. If they are upheld, Republicans would almost assuredly boost their representation in the U.S. House and General Assembly in the upcoming election.
In the meantime, candidates and political operatives are waiting to see what the finalized boundaries will look like and whether the primary will remain on May 17.
All seven justices on the state Supreme Court, including four registered Democrats and three Republicans, participated in Wednesday’s hearing. A faster-than-usual opinion is expected, but a slow turnaround could result in further delays to an election that the justices have already postponed by 10 weeks.
These are a few of the possible outcomes:
Scenario 1: Order lawmakers to redraw. Many political observers expect the Supreme Court to order some form of a redraw.
If that happens, the high court could choose to give the legislature at least two weeks to redraw maps and then evaluate them before deciding whether to appoint an independent redistricting expert known as a “special master.”
But without a special master, Democrats and voting rights groups fear the GOP wouldn’t be incentivized to draw fairer maps in a state that is nearly evenly split politically.
If a redraw is ordered, Republicans would likely want the Supreme Court to step out of the process and have a lower court oversee the effort.
A panel of Wake County Superior Court judges, including two registered Republicans and one Democrat, unanimously decided last month that the maps, while drawn for the GOP’s political gain, did not violate the state constitution. Republican lawmakers believe they could benefit from having the lower court oversee the redraw process because it had previously sided with them.
Since Democrats hold a 4-3 advantage on the state Supreme Court, voting rights groups want the redraw process handled by the high court.
The North League of Conservation Voters, one of the plaintiffs challenging the new voting maps, wants the high court to oversee the redraw and order that the finalized maps stay in place for the next decade.
Michael Bitzer, a Catawba College political science professor, said the Supreme Court tends to want the trial court that heard the original case to revisit it once maps are redrawn to ensure the updated boundaries comply with the high court’s guidance.
“The likelihood is if the legislature has to redraw the maps, and if it needs to be challenged again, it would go back to the same three-judge panel with the new instructions by the state Supreme Court,” Bitzer said.
After watching oral arguments on Wednesday and reading court filings, Bitzer believes the four Democratic justices have reached a consensus that the new voting maps Republican approved in November 2021 are excessive partisan gerrymanders.
Whether the high court believes a comprehensive redraw of every congressional, state House and state Senate district is necessary remains an open question.
Scenario 2: Order lawmakers to redraw and appoint a special master. Under state law, the Republican-controlled legislature should get at least 14 days to make the political boundaries more fair.
The high court could also create a parallel track and appoint an independent expert to handle the redraw if Republicans produce a revised map that the high court still believes violates residents’ rights under the state constitution to a free election and equal protection under the law. Under this scenario, the special master would be in a secondary role and considered a consultant of sorts, rather than a main map-drawer.
Republican lawmakers are privately bracing for this scenario, though they hope the high court will rule in their favor.
Phil Strach, an attorney representing GOP lawmakers, argued Wednesday that the free election and equal protection provisions of the state constitution do not address partisan gerrymandering.
Under the congressional map Republicans passed last fall, the party is expected to get 10 or 11 of the 14 U.S. House seats up for grabs. This is achieved in large part by splitting Wake, Mecklenburg and Guilford counties into thirds.
Zach Schauf, an attorney representing one of the three plaintiff groups suing the GOP over the maps, said in Wednesday’s Supreme Court hearing that “the party that wins more votes should have at least a fighting chance to win most of the seats.” Democrats can handily win a majority of overall votes this year yet still not capture a majority of U.S. House seats, according to independent expert analyses.
Another attorney representing plaintiffs, Stanton Jones, argued the U.S. House, state Senate and state House maps are all “extreme gerrymanders that violate the fundamental rights of millions of North Carolinians, and this court has the power and duty to say so.”
If the high court strikes down the new voting maps, Democrats would almost certainly gain greater political representation, particularly in the strongholds that include the cities of Raleigh, Charlotte and Greensboro.
The GOP currently holds an 8-5 edge in the U.S. House. The state gained an additional seat after the U.S. Census Bureau reported sizable population growth in North Carolina over the past decade.
Scenario 3: Appoint a special master as the main map-drawer. While the previous option would have a special master work concurrently with the Republican-controlled legislature on a redraw, the court could also choose to make the independent expert its primary or exclusive mapdrawer.
Some have argued the state Supreme Court could overturn the state law mandating it give lawmakers at least 14 days to redraw maps.
Democratic Gov. Roy Cooper and Attorney General Josh Stein have claimed the legislature “lacks authority to place limits on this court’s power to remedy constitutional violations.”
Republicans, meanwhile, have insisted the court must at least give the General Assembly a chance to redraw.
Bitzer believes the justices are unlikely to appoint a special master to bypass the legislature because they want to be seen as members of a coequal branch of government not overstepping their authority.
Scenario 4: Uphold the new voting maps. The state Supreme Court could rule similarly to the Wake County Superior Court. While justices may find evidence of unfair congressional and legislative maps, they could determine that the boundaries should remain in place since they do not violate the state constitution.
If the maps are upheld and a decision is made in about a week, the May 17 primary schedule would almost assuredly remain intact. Candidates for elected office would have between Feb. 24 and March 4 to file their paperwork to get on the ballot.
The high court in December halted candidate filing and delayed the primary by 10 weeks, pushing back the election from March 8 to May 17.
Scenario 5: U.S. Supreme Court gets involved. Whatever the North Carolina Supreme Court decides could be appealed to the U.S. Supreme Court if the losing side can make a compelling point that the matter involves a federal question.
“It certainly is a possibility because decisions rendered by state Supreme Courts, if there is what is called a federal question involved in the case, can take it directly up to the U.S. Supreme Court,” Bitzer said.
If the North Carolina Supreme Court upholds the maps, the voting groups could argue the maps violate the Voting Rights Act by discriminating on the basis of race.
Gerry Cohen, an adjunct instructor at Duke University’s Sanford School of Public Policy and Michael Crowell, a constitutional law expert and former UNC School of Government professor, said Republican attorneys defending the GOP maps in court have tried to lay the groundwork for a possible appeal.
If the maps are rejected and the court sets a new precedent for what constitutes an unlawful gerrymander, the Republican attorneys can ask the U.S. Supreme Court to stop the state court’s ruling from being implemented.
“The damage to this court has already begun,” Strach told the justices during Wednesday’s hearing on behalf of GOP lawmakers. “The mere possibility that this court might strike down the redistricting plans has already led some in the public to start treating the court like a legislature, not a court.”
But U.S. Supreme Court intervention is widely believed to be the least likely option given that the court determined in 2019 that the issue of whether election maps are gerrymandered, or drawn in a way that is too partisan, cannot be determined by federal courts.
In a 5-4 decision split along ideological lines, the conservative justices decided the matter is one for states and lawmakers to decide instead. With a 6-3 conservative majority now in place following the death of Justice Ruth Bader Ginsburg and appointment of Justice Amy Coney Barrett, odds of the Supreme Court considering an appeal appear slim.
WRAL Statehouse Reporter Paul Specht contributed to this article.