When it comes to judges, the President has a lot in common with North Carolina.

While the White House finds itself thwarted on an almost hourly basis by federal district judges, the Tar Heel State languishes under the iron heel of the Fourth Circuit, a federal appellate court based in Richmond, Virginia.  Once deeply conservative, the Fourth Circuit is now almost as liberal as the Ninth, and for a very simple reason: President Obama got to fill vacancies Senate Democrats kept from Bush in 2007 and 2008. (The vacancy jockeying began long before Trump.) 

The transformed Fourth Circuit quickly got to work striking down North Carolina’s laws on voter IDs, transgender bathroom accommodations, public prayer, and, of course, election districting, from races for lowly school boards to those for Congress.

And so the court strikes again. On Monday evening, a three-judge district court panel, led by Fourth Circuit judge James A. Wynn, held that North Carolina’s congressional map is an illegal partisan gerrymander. Remarkably, the panel indicated that it may soon order the state to adopt a new map for the November 6 midterm elections, which are less than three months away. If the panel does impose a new map, and if the Supreme Court does not intervene, House Democrats could pick up three or four seats in North Carolina alone.

Before getting into details and predictions, it’s worth tracing the history of this dispute, starting with the blockbuster Wisconsin gerrymandering case the Supreme Court considered last term (though this fight actually stretches back much earlier).

I. No Standard for Evaluating Gerrymandering Disputes

Gill v. Whitford was supposed to be the gerrymandering case to end all gerrymandering.

The challengers were meticulous. They picked a brazenly partisan map to contest. They enlisted plaintiffs who lived in “cracked” and “packed” districts. They were backed by prominent academics who claimed to have found what Justice Kennedy had been searching for: an objective way to determine when a partisan gerrymander becomes illegal. His beauty pageant, at long last, looked destined to produce a winner.

But Kennedy balked at the latest contestant, and Gill v. Whitford was resolved 9-to-0 on a whimpering technicality: The plaintiffs lacked standing to press a theory of statewide harm.

When the Supreme Court issues an opinion, it often vacates rulings in related pending cases and directs lower courts to reconsider their analysis in light of the new guidance. And so the Justices did here, wiping out a decision by the same panel, from January 2018, that had struck down North Carolina’s congressional map as an illegal gerrymander.

That was on June 25. The reconsideration has now happened, and on Monday the same judges who formed the January majority, Wynn and William E. Britt, readopted their opinion that the map is an illegal gerrymander. Wynn and Britt are appointees of Presidents Obama and Carter, respectively. The third judge, William L. Osteen, was appointed by George W. Bush, and agreed that the map was unconstitutional, but did not join the opinion due to disagreement with some of its reasoning.

(Now we’re caught up to the present.)

II. Extremely Unusual to Interfere This Late

Courts invalidate election districts all the time, and it certainly seems undemocratic for Republicans to hold 10 of 13 House seats in a state where they barely have 50 percent public support. So nothing unusual or unexpected about the court’s legal analysis.

But it would be insane to force North Carolina to use a new map this November. I am not aware of any similar situation where a court imposed new districts less than three months before a general election. The primary was in May and ballots will be printed as soon as litigation over the language of two amendments is resolved. The judges themselves acknowledge that the election’s proximity would normally leave them “with little choice but to allow the State to use the 2016 Plan in the 2018 election.”

So you might think that the judges are out of luck given that there’s simply no way to hold another primary before November 6. But lest anyone be naive, Wynn and Britt have a simple plan: just make everyone vote without a primary! “It may be possible for the State to conduct a general election using a constitutionally compliant districting plan without holding a primary election,” they write. On what grounds? Apparently the legislature “abolished primary elections for several partisan state offices.” Ergo, the panel reasons, getting rid of House primaries “would be consistent with the General Assembly’s policy preference as to at least some offices.” It’s actually pretty impressive how the panel manages to feign deference to the legislature while proposing to repeal the election scheme it enacted.

Or maybe, the court speculates, it could order North Carolina “to conduct a primary election on November 6, 2018” and then a “general election sometime before the new Congress is seated in January 2019.” The panel seems to think that it would be ideal to let the legislature draw remedial districts, but expressed skepticism that the legislature would be properly obedient. In any case, the court said that the legislature must propose new districts by September 17, or the court will adopt its own map.

Rick Hasen, a prominent election law expert at UC Irvine, writes:

In a case with potentially national implications both short term and long, a three judge district court in North Carolina has held that the congressional redistricting plan—put in place after North Carolina’s districts last time were found to be a racial gerrymander—are an unconstitutional partisan gerrymander. The remedy is not set yet, but the court may have a remedy in place for the 2018 elections, something I find surprising.

Surprising? Certainly not to anyone who’s been paying attention to the judiciary for the past 18 months. But I digress.

If the panel prevents North Carolina from voting along with the rest of the country, that could depress turnout and benefit the party with more motivated voters, which will be the Democrats this year. And that’s not even considering the map the court is likely to adopt when the legislature inevitably fails to satisfy its demands.

III. Supreme Court is Evenly Divided 

To avoid confusing people and influencing turnout, the Supreme Court has generally stopped lower courts from disrupting elections close to voting day, no matter how deficient a map might be. But Kennedy’s seat is now empty, and if North Carolina’s request for a stay ends in a 4-4 tie, the judgment is affirmed and Wynn and Britt get their way. They are exploiting the vacancy to essentially make their decision final, since there won’t be time to print new ballots after Kavanaugh is confirmed. So even if a nine-justice Supreme Court ultimately reverses them on the merits, it will be doubtful a normal general election gets held on November 6.

I don’t mean to suggest that Wynn and Britt should have delayed their ruling just because of the vacancy. Judges are supposed to decide cases as they believe the law demands, not anticipate the Supreme Court’s behavior and docket. Yet we’re in an unusual situation because the Supreme Court is required by statute to consider this case. The normal appellate process is skipped in redistricting lawsuits: litigants go straight from a three-judge district court to the Highest Court in the Land. So if the Supreme Court deadlocks, a panel selected by an opaque process decides a question of national importance that Congress intended the Supreme Court to review. Indeed, even if the Justices had actually adopted a standard in Gill, it’s unlikely they’d have applied it until 2020. For a lower court to create such upheaval, in the absence of clear guidance from the Supreme Court, is inexplicable by any motive other than politics.Maybe someone could point one out, but I can’t think of any reason why the panel could not simply wait for the Supreme Court to agree that the gerrymander is illegal, and then order an election be conducted in March or April.

So it seems clear that Wynn and Britt are trying to hand the Democratic Party a couple of House seats while the Supreme Court is paralyzed by a vacancy.

IV. What to Expect 

Will the scheme work? Who knows. We don’t even know if the scheme will transpire. The panel has ordered the parties to brief the remedy issue by August 31. There is a chance that the judges will relent and allow the current map to be used. This whole post might be pointless.

Finally, even if the panel does order new districts for November, I think there’s a decent chance that Justice Breyer will lend North Carolina the fifth vote to stop it. He did so, after Scalia died, in a case involving a transgender student in Virginia. But then again, that was before Trump won, when Breyer was likely expecting Merrick Garland as a colleague and may have felt more magnanimous toward the conservative wing. Now, however, the Court’s four liberals are a permanent minority as far as Breyer is concerned, and the liberal justices all may very well prefer to stick it to the Republicans one last time, while they still can.

Given all that’s gone on, I’m not sure I can blame them.

This post has been updated.