Federal Judges Basically Challenge John Roberts To Come Down And Gerrymander North Carolina Himself

Reconsidering the case in light of Gill v. Whitford, panel decides that plaintiffs still have standing to challenge district map.

The Supreme Court’s “unanimous” decision in the gerrymandering case, Gill v. Whitford, is one of the most cowardly pieces of legal writing emanating from the Roberts Court. Instead of deciding anything of import, the Supreme Court punted the case on standing.  On a bad interpretation of standing actually because Anthony Kennedy could not bring himself to piss off Republicans while he was busy engineering his replacement.

But, you know, dumb Supreme Court opinions carry the same weight as all the others. Other gerrymandering cases have to take notice of Whitford. Specifically, North Carolina’s unabashedly pro-Republican maps have been challenged in federal court. The district court initially let the lawsuit proceed. North Carolina appealed. And the Supreme Court kicked the case back down to the lower court so it could rule in light of the Court’s decision about standing in Whitford.

Yesterday, a three-judge panel in North Carolina told the Supreme Court to bite them. The central holding of Gill v. Whitford is that the plaintiffs lacked standing because they sued against a statewide map, instead of alleging “injury in fact” because of their individual districts. Again, this is a terrible reading of what the plaintiffs in Whitford were doing.

Nonetheless, the three-judge panel in North Carolina applied Whitford‘s reasoning and, lo-and-behold, they found that injury-in-fact was alleged in this challenge of statewide maps. From the opinion [emphasis in the original]:

The instant case meaningfully differs from Gill. To begin, unlike the plaintiffs in Gill who “failed to meaningfully pursue their allegations of individual harm,” id. at 1932, Common Cause Plaintiffs, in particular, have alleged, argued, and proven district-specific injuries throughout the course of this litigation. For example, each individual Common Cause Plaintiff alleged in their complaint that his or her vote is “diluted or nullified as a result of his placement in [his or her particular district].” The Common Cause Complaint further alleged that the 2016 Plan “pack[s] as many Democratic voters as possible in the First, Fourth, and Twelfth Congressional Districts” and “dilut[es] or nullif[ies] the votes of the remaining Democratic voters who reside outside of these three districts by dispersing (or ‘cracking’)
all remaining Democratic voters among the other ten districts,” and therefore that “[t]he 2016 Plan as a whole, and each of the thirteen individual districts” are unconstitutional. Id. ¶¶ 35, 37, 45 (emphasis added).

Common Cause Plaintiffs also sought, obtained, and introduced at trial—before the Supreme Court decided Gill—district-specific evidence of cracking and packing.

Now, the Supreme Court, stacked as it is with Republican judges who hate voting rights, is free to overrule this decision.

But they’re going to have to. John Roberts is going to have to figuratively come down to North Carolina and order them to elect Republicans.

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I’m sure he will. Republicans jurists aren’t squeamish about making sure Republican candidates win elections. But that’s what it is going to take.

Common Cause v. Rucho [Election Law Blog]


Elie Mystal is the Executive Editor of Above the Law and the Legal Editor for More Perfect. He can be reached @ElieNYC on Twitter, or at elie@abovethelaw.com. He will resist.

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