GREENSBORO — A three-judge panel had some sharp words this week for lawyers representing the North Carolina General Assembly in the gerrymandering lawsuit against the state’s current congressional map.
The judges asserted in their Wednesday order allowing a temporary stay that attorneys for the Republican-led legislature had made “baseless ... attacks against the motives and integrity of this court” in recent legal filings.
“There is no evidence in the record to support counsel for legislative defendants’ claim that this court desires to ‘sway’ an election in favor of Democratic candidates,” the judges said in a 12-page ruling.
They added that “the only party to these proceedings that has sought ‘to sway election results ... for one set of candidates’ is the North Carolina General Assembly’s Republican majority.”
Judge James Wynn Jr., of the Fourth U.S. Circuit Court of Appeals, and U.S. District Judges Earl Britt and William Osteen Jr., delivered the reprimand in an order responding to the GOP legislators’ pending U.S. Supreme Court appeal. It delayed further action on the object of that appeal — the local panel’s Aug. 27 order that put North Carolina’s current congressional map in limbo.
In practical terms, this latest decision assures the Nov. 6 general election will go ahead as scheduled in all of North Carolina’s 13 races for seats in the U.S. House of Representatives.
Represented by Raleigh lawyers Phillip Strach and Michael McKnight, the so-called “legislative defendants” gave notice two weeks ago that they would be appealing the judicial panel’s earlier anti-gerrymandering order involving the state’s congressional districts.
Strach and McKnight seemed to get under the judges’ skin with one, particular passage in their Aug. 31 brief about the panel’s recent finding of unconstitutional, partisan gerrymandering.
“The court’s action is ironic, indeed,” Strach and McKnight observed in their brief last month. “Unelected federal judges usurping the role of the state’s elected representatives by taking the unprecedented step of enjoining a congressional plan two months before a general election under a legal theory that has never been accepted by the Supreme Court.”
In Wednesday’s order, the judges said Strach and McKnight were off base.
“On the contrary, the guiding principle of this court’s opinion and judgment is that the Constitution bars the government — whether the legislature, the executive or the judiciary, and whether controlled by Republicans or Democrats — from ‘swaying’ an election in favor of one set of candidates,” the trio said in the order.
“That the judges on this court and the remainder of the federal judiciary are ‘unelected’ in no way undermines the authority of the federal judiciary to act in its constitutionally-defined sphere.”
The judicial panel’s initial ruling last month had raised questions about whether the upcoming Nov. 6 general election could proceed in districts that the judges found unlawful.
But all sides in the lawsuit agreed it would be too disruptive to interfere with an electoral cycle already nearing the home stretch in the current districts.
The lawsuit was filed by nonprofit groups Common Cause North Carolina and the state League of Women Voters, along with the Democratic Party and voters from across the state who alleged they had been disenfranchised by the partisan manner in which legislators went about redistricting two years ago.
The legislature’s job back then was drawing new district lines to replace those initially created in 2011, which an earlier set of federal judges declared the result of racial gerrymandering at the hands of the GOP’s legislative majority.
The practice of gerrymandering involves drawing new legislative districts designed to give an unfair advantage to the party in power by, for example, packing large numbers of voters likely to favor the other side into districts sometimes contorted in odd shapes on the map.
The three judges on the current panel were nominated for their current positions on the bench by a bipartisan array of presidents: Britt and Wynn respectively by former Democratic presidents Jimmy Carter and Barack Obama, and Osteen by then-Republican president George W. Bush.
The judges’ ruling Wednesday put on hold any actions stemming from their Aug. 27 finding that in addition to the unconstitutionality of the state’s current congressional map, Common Cause and the other plaintiffs had legal standing to pursue their claims against it.
The judicial panel said in Wednesday’s order that the delay would continue until the high court reaches a decision on the appeal — unless the legislative defendants fail to file the first part of their appeal by Oct. 1 or they later ask the high court to sidetrack that appeal for some reason.
Osteen concurred with Wednesday’s ruling, but wrote an addendum that, among other things, expressed uncertainty about whether objective, enforceable legal standards could be developed to prevent excessive partisanship in redistricting.