On Monday, the Supreme Court affirmed a lower court decision striking down North Carolina Republicans’ racial gerrymander. If that sentence sounds familiar, it’s because the Supreme Court did the same thing two weeks ago—to a different racial gerrymander drawn by North Carolina Republicans. That ruling involved federal congressional districts; Monday’s decision involved state legislative districts. The upshot is that, in both instances, the North Carolina GOP drew districts along racial lines in violation of the Equal Protection Clause.
Monday’s ruling, however, is a mixed result for voting rights advocates. On the one hand, the court invalidated 28 districts with no noted dissents—a remarkable rebuke to North Carolina’s Republican-dominated Legislature. On the other hand, the justices actually vacated the lower court’s solution to this constitutional violation. The district court had ordered new maps and special elections in 2017, writing that the cost of such elections would “pale in comparison to the injury caused by allowing citizens to continue to be represented by legislators elected pursuant to a racial gerrymander.” But in a brief opinion, the Supreme Court held that the lower court had failed to balance the benefits and drawbacks of special elections with sufficient care, sending the case back down for a less “cursory” analysis.
By vacating the district court’s remedy, the justices undoubtedly made special elections less likely, since the window for 2017 elections is closing quickly. For that reason, ThinkProgress’ Ian Millhiser interprets Monday’s decision as a boon to gerrymanders, noting that “if you can’t fix the problem quickly, it’s not fixed.” Put differently, if a court does not swiftly rectify unconstitutional maps and call for new elections, the victims of the gerrymander have no real recourse. Fair representation becomes a right without a remedy.
But the court’s opinion may also provide reason for cautious optimism. Election law expert and Slate contributor Rick Hasen points out that the court did not foreclose the possibility of special elections this year. Instead, it crafted a balancing test to help lower courts decide when such elections are appropriate. “Obvious considerations,” the court wrote, include:
the severity and nature of the particular constitutional violation, the extent of the likely disruption to the ordinary processes of governance if early elections are imposed, and the need to act with proper judicial restraint when intruding on state sovereignty.
Millhiser interprets this standard as unduly stringent, but Hasen believes it “makes great sense,” asserting that “these sensible factors” will encourage plaintiffs to “ask for special elections more regularly.” And, Hasen writes, in the North Carolina case, the test “leaves open the possibility” that the district court “can conduct a new hearing” and “issue a more nuanced order that puts special elections in place for 2017.”
I strongly suspect that the district court, which now has to craft a new remedy, will do exactly that, issuing a second order that tracks the Supreme Court’s new standard but reaches the same conclusion as before. In its initial decision, the district court seemed horrified by the “severe constitutional harms” inflicted by North Carolina’s gerrymander, stressing that the plaintiffs “are entitled to vote under constitutional districting plans as soon as possible.” I don’t see why Monday’s opinion should give the court a change of heart. The “stigmatic and representational injuries” imposed by the gerrymander will remain until the state holds elections under new maps. Those elections should surely still happen “as soon as possible”—which would mean November 2017.