Evidence is so strong that Republicans carved North Carolina's congressional districts for a specific — and illegal — partisan advantage that those lines must be barred now from use, a lawyer representing voters told judges on Thursday.
A panel of three Superior Court judges listened but didn't immediately rule on the request by the Democratic and unaffiliated voters to prevent the 2020 elections from being administered under the map approved by GOP state legislators in 2016. The voters who sued to challenge the law say the General Assembly should get the opportunity to draw a replacement map that's finalized by mid-December for use in the March 3 primary.
Republicans hold 10 of the state's 13 congressional seats thanks to a deliberate effort to shift lines so that Democrats were largely packed into three districts and spread out elsewhere, the lawsuit alleges.
"North Carolina voters deserve better than these gerrymandered maps," said Stanton Jones, a lawyer representing the voters. "They deserve better than being treated like pawns in some cynical partisan chess match."
The voters' requested injunction, if granted, would come before any trial or resolution of the partisan gerrymandering lawsuit filed Sept. 27. But the suit's legal arguments largely mirror another legal case that led these same state judges last month to strike down dozens of state legislative districts as violating the state constitution.
Attorneys representing the Republican legislative leaders who were sued and three GOP members of Congress told the judges it's too late to make congressional map changes. Candidate filing begins Dec. 2 and campaigning has already started in some districts. By contrast, it took nearly a year for the legislative district litigation case to result in a ruling, said Katherine McKnight, a lawyer for the GOP state legislators.
"As we sit here today we are five weeks away from the beginning of candidate qualifying," McKnight said. "The court is in no position today to grant them the relief they seek."
But facts about the 2016 congressional map already have been gathered in separate litigation challenging the congressional lines in federal court, plaintiffs' attorney Elisabeth Theodore told the judges. That case went all the way to the U.S. Supreme Court, which decided 5-4 in June that federal courts would not get involved in partisan redistricting claims. The justices left the door open for state courts to intervene.
During the 2016 remap, Republicans put in writing that partisan data and election results could be used in fashioning the districts, with a goal of retaining 10 of the seats in the state's congressional delegation. The GOP's hired mapmaker, Thomas Hofeller, "admitted in sworn testimony that he carried out this goal," Theodore said. Hofeller, who has since died, featured prominently in the legislative redistricting case, too.
"Everyone ... knows that North Carolina's congressional plan is an extreme partisan gerrymander that predetermines the elections and guarantees 10 seats for the Republicans and three seats for the Democrats," Theodore said. "This is so plain that the legislative defendants do not even bother to dispute it in their opposition briefs."
McKnight countered that there are no undisputed facts in the current lawsuit because evidence hasn't yet been collected for it.
The State Board of Elections says it needs a replacement map in its hands by Dec. 15 to keep the current election schedule on time. The judges otherwise could delay the primary, potentially pushing it back to the runoff date in the spring.
Paul Cox, a state Department of Justice lawyer representing the board on Thursday, told the judges that an injunction would be appropriate. Cox said the September ruling striking down legislative districts is so similar to details of the current case that administering congressional elections under the current map "might violate the constitutional rights of North Carolina voters."
The judges on Thursday allowed the three Republican members of Congress — Reps. Virginia Foxx, Richard Hudson and Ted Budd — to join the lawsuit as defendants. The House members oppose the proposed injunction.
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