NC: CDs 1 & 12 struck down

[jimrtex]

^Downballot primaries will probably be delayed, but its ambiguous as to when.

This article suggests that only the congressional primaries will be rerun NC Republicans release new Congressional district maps

The legislators and governor would have zero interest in a do-over of their primaries, which would also permit new filing. Turnout will not be down, because of the presidential primary. It also would be messy because primaries are contingent on there being two candidates.

North Carolina has provisions for special elections for the US, which include a primary. It should be relatively simple to write statutes that says to do the special congressional elections using that procedure. This could let the governor set the date of the special primaries - which will have to be based on the district court reviewing the new plan.

[jimrtex]

That Research Triangle area Dem sink CD is just so cute. And Muon2 would not characterize what is going on there as a bridge chop, because he's a stubborn cuss.

Of course its a bridge chop in the larger sense of a strip of low population used to connect two areas of larger population. It's just not one to which I would ascribe any special penalty since one population (Wake) is already subject to a county chop penalty and subunit chop penalties, too.

I was impressed that the new map avoids any traveling chops has only one chop more than the minimum and still reaches their partisan goals.

How about putting all of Bladen in 9, then shifting through Cumberland, Rowan, and Guilford, and put the Wake-Orange bridge through Chatham, continuing through Wake and Johnston to complete the rotation.

Then put all of Durham in 1, and rotate through Wilson, and Wake.

The two rotations in Wake are in opposite directions so that the adjustment to 4 in Wake is the difference between the 4 portion of Durham, and the 7 portion of Bladen.

The NC-7 portion of Bladen has a population of 8981
The NC-4 portion of Durham has a population of 27,288

So shifts of 8981:

NC-7 to NC-9 in Bladen (remainder of Bladen)
NC-9 to NC-8 in Cumberland
NC-8 to NC-13 in Rowan
NC-13 to NC-6 in Guilford
NC-6 to NC-4 in Chatham
NC-4 to NC-2 in Wake
NC-2 to NC-9 in Johnston

Then a shift of 27,288

NC-4 to NC-1 in Durham (remainder of Durham)
NC-1 to NC-2 in Wilson
NC-2 to NC-4 in Wake

Net of 18307

NC-2 to NC-4 in Wake


The NC-1 portion of Wilson has 56787, but is 46.7% black
The NC-2 portion of Wilson has 24,447, and is 21.1% black.

So the area in Wilson moved into NC-2 may be slightly Democratic. Butterfield is from Wilson County, so we can be selective, claiming that we aren't going to take him out of his district. There may be pushback since Adams lives nowhere near the new NC-12.

Presumably the NC-4 portion of Wake is more Democratic, but we can probably find swingy areas, so that NC-2 does not shift much Democratic.


Thinking about, I bet they were at the minimum number of split counties, and then had to split Wilson to keep Butterfield in his district.

The map on the NC legislature web site shows incumbent residences. Talk about being on the edge of their districts.

Another interesting table is voter registration by party. While the election results are quite balanced, this is not true of registration numbers at all. Presumably voters in more rural areas register D, but vote R, while those in suburban areas are consistent in their registration and voting.


The map shows why I prefer making whole county districts. This will demonstrate a clear intent, which will let us take advantage of Tennant to the greatest extent, even we have to make a few county splits.

A goal of few county splits is easier to comprehend than a goal of small county splits.

[jimrtex]

Wonder what Holding and Adams will do.

HB 2 is the bill that sets the schedule for the special primary. It passed the House on 2nd&3rd reading on Thursday evening. I suspect it was pretty much a party line vote, and with many representatives missing.

HB 2 is contingent on the SCOTUS not staying the district court's order before March 15. That is, the March 15 primary will continue. If the SCOTUS stays, then HB 2 is moot. If the SCOTUS does not stay, then the March 15 results for congressional elections will be discarded (they will not be certified and ballots will not be public record).

The congressional primary will be June 7, and there will be no 2nd primary (runoff). I assume that June 7 is the scheduled day for a 2nd runoff. So there won't be another election day. It is likely that the elections on June 7 will be more widespread than they would have been,

Presidential electors will be chosen based on the current congressional districts (NC requires an elector from each CD, and 2 statewide). Since the presidential primary will go on, the current congressional districts will be used for delegate selection.

The filing deadline will be March 16 to 25, and current filers will get a refund. If a candidate is nominated on both March 15 (for some office other than congress) and June 7 for Congress, they get to choose which office they will appear on the general election ballot. This may give incumbent legislators a free shot at a run for Congress.

A proposed amendment would have move the presidential primary to June 21. It was easily defeated.

BTW, none of the current candidates for NC-12 are from Charlotte. A more interesting announcement for one of them was on a GoFundMe site :

"I am an RF engineer but the media has forced me in the last month to run for office to politically shut Mr Donald Trump's mouth..he speaks some truth but I have a load of truth coming right back at him and am pretty much against most of the ideals he is for. I will use my 1st amendment right to blast his prejudice of my hispanic people, musIims, and other minorities. I am affiliated with the Democratic party. I started from the bottom and any money I have made is honest money but it costs about 1 million to run a campaign. I already paid 1,750 to register."

[jimrtex]

The recent filings in the federal case were kind of interesting.

The North Carolina Supreme Court had recently upheld the congressional and legislative districts (this was the second time, as the SCOTUS had ordered them to review the case after the Alabama decision). The defendants in the federal case were seeking to depose the plaintiffs in the federal case.

They are pursuing a claim that the federal case is the same as the state case, and barred by res judicata. The plaintiff lawyers are claiming that the plaintiff voters are different between the two cases, and that the lawyers are acting under the direction of their clients. There appears to be some evidence that at least some of the plaintiffs in the federal case were recruited by plaintiffs (or their lawyers) in the state case, and that they had not seen the federal complaint until after it had been filed.

[jimrtex]

The SCOTUS refused to stay the case. These are the new maps.

Will the plaintiffs challenge the new maps?

Adams says that she still intends to run in CD-12. Any chance that Watt would run? Otherwise, possible candidates would be three black former mayors of Charlotte (Gantt - may be too old), Foxx, and Cannon (too convicted). Any black legislators?

[jimrtex]

The SCOTUS refused to stay the case. These are the new maps.

Not surprising, as I'm quite sure the Rule of Four only applies to a writ of cert (with a stay requiring a majority). I think that new map will remain, at least under the current Court (and certainly at least for this year's election). If the plaintiffs really wanted to be bold, they could argue at the Fourth Circuit for a justiciable standard to restrict partisan redistricting. If a fifth liberal justice is eventually confirmed to replace Justice Scalia, I do expect the Supreme Court to take up partisan redistricting and rule for standards restricting the practice.

Congressional and legislative redistricting cases do not go to the circuit courts, they go directly to the SCOTUS. If this were not true, North Carolina would have sought the stay from the 4th Circuit.

The case goes back to the district court.

The plaintiffs can argue that the new plan does not remedy their claim that race predominated. When you have districts with 45% BVAP and 38% BVAP, such a claim is laughable. You can't add new claims after a case has already been decided.

Are the plaintiffs now going to argue that the dissent was right about NC-12?

If the court had only ruled against NC-1, the legislature would have just chopped some fingers off to reduce the BVAP some, and likely limited the changes to NC-1 and NC-3.

[jimrtex]

The SCOTUS refused to stay the case. These are the new maps.

Not surprising, as I'm quite sure the Rule of Four only applies to a writ of cert (with a stay requiring a majority). I think that new map will remain, at least under the current Court (and certainly at least for this year's election). If the plaintiffs really wanted to be bold, they could argue at the Fourth Circuit for a justiciable standard to restrict partisan redistricting. If a fifth liberal justice is eventually confirmed to replace Justice Scalia, I do expect the Supreme Court to take up partisan redistricting and rule for standards restricting the practice.

Congressional and legislative redistricting cases do not go to the circuit courts, they go directly to the SCOTUS. If this were not true, North Carolina would have sought the stay from the 4th Circuit.

The case goes back to the district court.

The plaintiffs can argue that the new plan does not remedy their claim that race predominated. When you have districts with 45% BVAP and 38% BVAP, such a claim is laughable. You can't add new claims after a case has already been decided.

Are the plaintiffs now going to argue that the dissent was right about NC-12?

If the court had only ruled against NC-1, the legislature would have just chopped some fingers off to reduce the BVAP some, and likely limited the changes to NC-1 and NC-3.

I've never heard that myself. Any lawsuit with regards to the Constitution or federal law start at the district courts, not SCOTUS. The Fourth Circuit is the intermediary between those two. I don't think any district court will have much relevance. I mention the Fourth Circuit as a whole in light of its strong liberal tilt and the current eight justice SCOTUS. If the Fourth Circuit were to rule on account of partisan influence, the result will stand in light of the new balance. If a liberal majority takes hold, I would expect SCOTUS itself to set any new standards. I think that unless a Republican assumes the Presidency next year, partisan redistricting is quite likely nearing its demise (and not a moment too soon).

See 28 USC § 1253 and 28 USC 28 § 2284(a).

You may be confused because the case in North Carolina was heard by a 3-judge panel, and the author of the majority opinion is a 4th Circuit judge.

When an apportionment cases is filed in district court (in this case the  Middle District of North Carolina), the district court judge asks the appeals court to appoint a 3-judge panel (it is mandatory that the judge and appeals court do so, "ask" is just a nice way to phrase it. See Shapiro v McManus).

The 3-judge panel is this case was:

Roger Gregory - 4th  Circuit
Max Cogburn - Western District of North Carolina
William Osteen, Jr. - Middle District of North Carolina, Chief Judge.

Osteen was the dissent with regard to NC-12.

North Carolina filed their appeal to the SCOTUS earlier this month. Also, on Friday North Carolina informed the district court that they had completed the remedial legislative map.

I doubt that the plaintiffs have much of a case against the new map.

You are naive about partisan redistricting. The decision by the SCOFLA was a partisan decision itself.

[jimrtex]

You are naive about partisan redistricting. The decision by the SCOFLA was a partisan decision itself.

I'll take your word for it on the judicial aspects in this case, but I don't think I'm naive as to what a liberal majority would do. The Supreme Court of Florida only interpreted its own redistricting amendment. I'm only looking at past Supreme Court precedence to say that partisan redistricting could be curtailed through judicial rulings. To be more specific, I note Vieth v. Jubelirer, a plurality ruling essentially meaning Justice Kennedy's more moderate stance is technically controlling. However, there were four votes in dissent. If a partisan redistricting case reaches SCOTUS with a liberal majority, I do believe they'll move to establish restrictions. (Do you also believe that a new liberal majority on SCOTUS would not move to overturn Citizens United?)

I don't know what standards might be established, just that there would be action taken by a newly liberal Court. Even now, I don't think Justice Kennedy is a lost cause. I just believe he hasn't found the proper remedy. A judicial standard could even be as simple something like the Miller Test and obscenity (at least something along the lines of "you know it when you see it"). Or it could be something more rigorous. A liberal SCOTUS would not maintain the non-justiciable argument with regards to partisan redistricting.

There is already a case on partisan redistricting before the Supreme Court. The SCOTUS is likely to celebrate partisan redistricting since in this case it favors the Democratic Party.

The state prosecutes private individuals for obscenity. I suppose a citizen might have a right to prosecute - but wouldn't that be based on a belief of the individual, rather than knowledge? Do you really want the courts deciding whether what a plaintiff believes is obscene is obscene?

Why would the state prosecute itself for political gerrymandering? But suppose that a private action was brought. What standard could the SCOTUS impose?

Do you think that the government should regulate speech based on who is speaking or what their message is?

The government could regulate by imposing fines (ie seizing property) or imprisoning speakers. I assume you would not favor direct suppression such as beating or shooting speakers, or destroying TV and radio transmission antennas, seizing and burning newspapers and books, requiring your computer to have software that would prevent reception of views critical of the state, etc.

I don't see why you regard regulation/supression of speech as a liberal idea.

[jimrtex]

I'm sorry I forgot about this topic, as it got buried (so I hope you don't mind my late reply). Which partisan redistricting case are you referring to? If a judicial standard to restrict partisan redistricting obtained a SCOTUS majority, I would expect a ruling striking down gerrymanders under both parties. It wouldn't be some ad hoc ruling against one state or another. I would look to the dissents in Vieth.

The Arizona redistricting case. Republican-leaning districts were deliberately overpopulated.

The relation to obscenity is only in terms of current Supreme Court precedent. I didn't say I agreed with it. On a personal standpoint, I think all obscenity laws are in direct violation of the First Amendment. I do believe obscenity is protected speech. That was not my point. I was only pointing out a previous standard that defined jurisprudence that has restricted obscenity laws. In other words, I was pointing out obscenity standard and how it might relate to partisan redistricting. I believe that Vieth will be overturned and that a standard will be put in place. That is only a prediction about what a future Court may do and how it may establish a standard.

Will any law passed with partisan intent be subject to judicial review?

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Citizens United overturned a government regulation.

It is quite unlikely that the SCOTUS will grant a request for a rehearing. Kagan was the Solicitor General at the time of Citizens United. She would have to recuse herself.

So you will have to devise/contrive a new regulation that will muzzle speech that is critical of a candidate or government official. What about speech that is critical of government policies? What is your proposed law?

[jimrtex]

We don't even know if they are going to accept the map.

The plaintiffs brief is really weak because they don't have a case.

[jimrtex]

The Arizona redistricting case. Republican-leaning districts were deliberately overpopulated.

I'm unaware of districts being drawn that are unequal in population. Admittedly, I haven't read through the entirety of that case. I have read nothing to the effect of Wesberry v. Sanders having been overturned. However, I don't recall that being the issue at hand in the Arizona case. I believe the issue in that was the constitutional authority of a state legislature to control Congressional redistricting. This Court ruled that independent commissions are permissible. In any event, that only has to do with the lawmaking ability of either the legislature or the people acting in a lawmaking fashion.

Immediately after their decision as to whether the initiative could be used to legislate the manner in which congressional elections were conducted, they accepted a second case from Arizona which was whether deliberately overpopulating Republican legislative districts violated equal protection.

Strictly speaking, the cases are not related, because the plaintiffs were not contesting whether the initiative could be used to regulate legislative districting. There really can be no question on that issue. The fundamental purpose of a constitution is to prescribe how a government is constituted. For example, this would include the structure of the legislature, and how it is elected. In the United States, constitutions are considered to be an action of the People, who have a natural right to determine how they are governed.

If the redistricting commission in Arizona had not abused its authority, it is less likely that anyone would have brought suit about its existence for congressional redistricting. It is likely that the SCOTUS understood the underlying reason for the first case, and took the second case as a result.

As far as the US Constitution goes, it doesn't matter whether gerrymandering is done by the legislature, governor, state courts, or a redistricting commission. Reynolds v Sims overturned the provisions in the Alabama constitution regarding legislative redistricting (not that Alabama would bother to notice, and change its constitution, even though it is the longest, and most amended state constitution in the country).

The SCOTUS also probably recognized the issue from the Alabama redistricting case. In the 1990s redistricting, a number of black majority legislative districts were created. People move to where there are jobs, so population growth tends to occur outside black majority areas. By 2000, the districts created 10 years earlier were underpopulated. Rather than equalizing population, the Democratic-controlled legislature left the districts about 5% below the ideal.

By 2010, the Republicans controlled the legislature, and decided that the population of the districts should be within tighter limits. The plaintiffs in Alabama actually argued that equal population districts were racially discriminatory. The SCOTUS was too embarrassed to actually address that, and said that the legislature would of course equalize population (the legislature had argued that race had not predominated since it had been attempting to equalize population).

Merit Briefs for Harris, et al v. Arizona Independent Redistricting Commission, et al.

See the chart on Page 34 of the appellants brief.

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I do want to say that I'm not trying to elaborate on my thoughts on the issue. I'm only saying what I think is possible or probably if the vacant seat on SCOTUS is replaced by someone of a more liberal mindset than Justice Scalia (i.e. someone that would fit in closely with the current four liberals on the Court).

If you look back to Vieth, there was only a four-Justice plurality that found partisan redistricting to be nonjusticiable. Justice Kennedy more or less agreed, but didn't rule out that there could be possible standards that could be put into place. There were four votes, however, that did not agree and were willing to hear the merits of that particular case. (Two are no longer on the Court, though I doubt their replacements would vote differently.) I'm not sure what the possible standards might be, but yes, I do believe a new Court could hear cases on the merits. That's why I mentioned the "I know it when I see it" standard. That's a minimal standard, but it would almost certainly overturn maps in Maryland and North Carolina (prior to current judicial action). I don't think it would cover maps like Michigan, which disguises its partisan intent quite well.

In Shaw v Reno, Justice O'Connor referenced the "I know it when I see it" standard, specifically with regard to NC-12. The legislature has now removed NC-12 (in its brief for the new plan, the legislature noted that the joint redistricting committee had voted 33-1 to eliminated NC-12).

The problem is that the SCOTUS will make rulings based on its partisan alignment. The liberal justices will look at Page 34 above, and refuse to see.

How can partisan redistricting be judiciable when justices (and judges) are themselves partisan?

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I don't agree with your characterization of the issue, but your point about a rehearing is valid and I hadn't considered that before. (Once again, I'm only looking at what a new Court might do. Replacing Justice Scalia with a liberal Justice would be a massive transformation at the Court.) However, I would note that there was a scathing dissent when the issue came back before the Court in American Tradition Partnership, Inc. v. Bullock where the dissent actively wanted to reopen the case, including Justice Kagan. Any state could pass a law in direct contravention of Citizens United that could potentially change jurisprudence for the entire country if they believed they had an amenable Court, just as I'm certain a state would try to do if conservatives had a majority without Kennedy on the issue of abortion. If the right to an abortion was expressly overturned by a Court, I do believe that would reactivate laws that are currently unconstitutional once enforced. In our country, as I'm sure you already know, unconstitutional laws are not erased. They are instead rendered unenforceable. Going back to the main issue here, it could be as simple as a state passing its own McCain/Feingold. A new SCOTUS could uphold it and the federal government may subsequently attempt enforcement of the same that remains in the US Code.

Since Citizens United courts have overturned a number of state laws regarding campaign spending.

Now consider this: moveon.org is a corporation. They helped organize the Anti-Trump demonstration in Chicago, 4 days before a federal election in which Trump is a candidate. Should it be illegal for moveon.org to advertise the demonstration?