Federal Court Allows Gerrymandered Congressional Map To Be Used For 2018 Midterms

A Federal Court has ruled that North Carolina can use its current Congressional District map for this year's midterms notwithstanding a ruling that it is an impermissible gerrymander.

A three-judge panel of Federal Judges in North Carolina has ruled that the current North Carolina Congressional District map can be used for the 2018 midterm elections notwithstanding their previous ruling that the map constituted an illegal and unconstitutional political gerrymandering:

A panel of federal judges that deemed North Carolina’s congressional maps to be unconstitutionally gerrymandered ruled on Tuesday that those same maps should be used for the November election, citing “insufficient time” to create new ones.

Liberals cheered the judges’ ruling last week that the maps were unconstitutional; the panel determined that Republicans, who control the State Legislature, had drawn districts to give themselves an unfair partisan advantage. But the decision also sent stabs of anxiety through the state’s political class because it left open the possibility that candidates might have to compete in new primaries or run in freshly drawn districts with just two months before the midterms.

There was also some worry that government officials, had they been ordered to redraw the maps for this election cycle, would not be able to print ballots in time to meet a Sept. 22 deadline for mailing absentee ballots to service members and voters overseas.

The court had given the parties in the lawsuit challenging the maps until Friday to file briefs on whether the state should be allowed to use the old maps in the Nov. 6 election. The judges on Tuesday wrote that there was not enough time “to approve a new districting plan and for the State to conduct an election using that plan prior to the seating of the new Congress in January 2019.”

Moreover, a new elections schedule would “likely confuse voters and depress turnout,” the judges wrote.

The decision disappointed some Democrats, who had hoped that newly drawn districts might have made some congressional races more competitive this year. Even though the vote totals of North Carolina Democrats and Republicans have been roughly even recently, the court ruled last week that the district lines drawn by Republicans helped that party win 10 of the state’s 13 House seats.

In a statement on Tuesday, Phil Berger, the Republican leader of the State Senate, said that the ruling “has removed the last remaining obstacle to printing ballots, and it’s time for the State Board of Elections to do their job and print them as soon as possible.”

As Politico notes, the idea that there simply wasn’t time for the legislature to come up with a workable map for the upcoming election is one that was largely shared by both sides to the underlying litigation:

Plaintiffs in the case like the League of Women Voters and Common Cause told the court in a brief last Friday that it would be unwise to force those kinds of changes on such short notice.

“Attempting to impose a new districting plan in time for the 2018 election would be too disruptive and potentially counterproductive,” attorneys for the groups wrote. “Statewide redistricting just weeks before Election Day would not be a good-government solution.”

North Carolina officials had already appealed last week’s decision to the Supreme Court, but it was unclear whether the justices would step in, particularly because the high court is currently shorthanded and even divided between Republican and Democratic appointees.

The three-judge court’s action reduces the urgency of that dispute, although the Supreme Court may well hear arguments in the case again once it returns to nine justices. The high court ruled on the case in June, but didn’t resolve the legality of the map at issue. Instead, the justices told the lower court to take another look at whether those challenging it had legal standing to do so.

The three judges below concluded that the challengers did have standing. The court stood by its previous ruling that Republican state legislators violated the First Amendment and the equal-protection clause of the Fourteenth Amendment when they drew congressional lines that favored their party. Ten of the state’s 13 House districts are held by Republicans.

Although not specifically mentioned in the short order embedded below, it seems clear that the Judges on the panel were guided by previous rulings by superior courts, specifically including the Supreme Court in a 2006 ruling called Purcell v. Gonzalez. 

In that case, the courts were dealing with a Voter ID law out of Arizona that was being challenged on the allegation that it unfairly discriminated against minority and poor voters. The District Court and the Ninth Circuit Court of Appeals both ruled in favor of the Plaintiffs and imposed an injunction against enforcement of the law notwithstanding the fact that both injunctions were issued within less than two months prior to the 2006 midterm elections. By that time, of course, state and local authorities had moved forward with election planning, including the printing of absentee and military ballots, that presumed the new law would be in effect for that election. The relevant state authority appealed the granting of the injunction that the courts below had erred in not giving due consideration to the fact that state authorities had moved forward in reliance on the idea that the law would be in effect for the 2006 election. In a relatively short opinion, a unanimous Court ruled that the Court of Appeals had erred in not giving greater consideration to allowing the law to go into effect just weeks before the election:

Faced with an application to enjoin operation of voter identification procedures just weeks before an election, the Court of Appeals was required to weigh, in addition to the harms attendant upon issuance or nonissuance of an injunction, considerations specific to election cases and its own institutional procedures. Court orders affecting elections, especially conflicting orders, can themselves result in voter confusion and consequent incentive to remain away from the polls. As an election draws closer, that risk will increase. So the Court of Appeals may have deemed this consideration to be grounds for prompt action. Furthermore, it might have given some weight to the possibility that the nonprevailing parties would want to seek en banc review. In the Ninth Circuit that procedure, involving voting by all active judges and an en banc hearing by a court of 15, can consume further valuable time. These considerations, however, cannot be controlling here. It was still necessary, as a procedural matter, for the Court of Appeals to give deference to the discretion of the District Court. We find no indication that it did so, and we conclude this was error.

Although at the time the Court of Appeals issued its order the District Court had not yet made factual findings to which the Court of Appeals owed deference, see Fed. Rule Civ. Proc. 52(a), by failing to provide any factual findings or indeed any reasoning of its own the Court of Appeals left this Court in the position of evaluating the Court of Appeals’ bare order in light of the District Court’s ultimate findings. There has been no explanation given by the Court of Appeals showing the ruling and findings of the District Court to be incorrect. In view of the impending election, the necessity for clear guidance to the State of Arizona, and our conclusion regarding the Court of Appeals’ issuance of the order we vacate the order of the Court of Appeals.

In a concurring opinion, Justice John Paul Stevens noted that leaving the stay of the lower court’s ruling against the law in effect in advance of the impending election would be the best way for future courts to deal with the legal issues involved in the case.

Allowing the election to proceed without enjoining the statutory provisions at issue will provide the courts with a better record on which to judge their constitutionality. At least two important factual issues remain largely unresolved: the scope of the disenfranchisement that the novel identification requirements will produce, and the prevalence and character of the fraudulent practices that allegedly justify those requirements. Given the importance of the constitutional issues, the Court wisely takes action that will enhance the likelihood that they will be resolved correctly on the basis of historical facts rather than speculation.

In Purcell, the Ninth Circuit opinion vacating the stay against the lower court ruling was issued on September 11th, and the Supreme Court’s ruling on the appeal of that denial was issued on October 20th. While both of these dates were closer to the date of the 2006 midterms than we are right now, it seems to me that the Purcell ruling applies nonetheless and it seems apparent in the Courts order that the panel had this ruling in mind when it agreed with the parties that proceeding with the existing map for the midterms would be the least disruptive way to proceed in this case. Even assuming that the panel’s ruling is correct on the facts and the law, requiring the legislature to redraw the maps at this point in the election cycle, or imposing a map drawn by a Special Master appointed by the Court, would be highly disruptive to the electoral process and potentially unfair both to candidates who have been campaigning in reliance on the fact that the current map is the one that will be in effect on Election Day and on voters who are likely already confused about which race they are going to be asked to vote on when the election comes. Additionally, we’re already at the point where election officials are being required to prepare and mail absentee and military ballots and the time when early voting is supposed to begin. Given the large number of military bases in North Carolina, the military ballot issue is a particularly relevant one since Federal law requires those ballots to be mailed within a specific amount of time prior to Election Day. There are similar deadlines in the law regarding the printing and mailing of absentee ballots and the printing of the ballot for early voting. The odds that the issues regarding the Congressional map can be resolved before these deadlines are, to be frank about it, quite low. Given all that it seems quite clear that the only fair and equitable solution at this point is the one that the panel reached here. Assuming that the underlying decision survives on appeal, the map for future elections, which basically just means the 2020 elections at this point since the elections in 2022 will be governed by yet another map based on the post-Census reapportionment, is the best way to proceed.

Here’s the opinion:

Common Cause Et Al v. Rucho… by on Scribd

FILED UNDER: 2018 Election, Law and the Courts, US Politics, , , , , , , , , , , , ,
Doug Mataconis
About Doug Mataconis
Doug Mataconis held a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010 and contributed a staggering 16,483 posts before his retirement in January 2020. He passed far too young in July 2021.


  1. Gustopher says:

    “For your deliberate and willfull violation of previous court orders regarding the unconstitutionally gerrymandered maps, you are awarded several representatives.”

    I think this “solution” does more harm to democracy as a whole, and the voters of North Carolina, and sets a terrible precedent going forward.

    “Stealing the Crown Jewels was bad, sir, but they do look dazzling on you — just keep them.”

    If North Carolina cannot schedule elections in 8 weeks on the new maps, than void those elections, and have special elections at a later date. Plenty of time before mid January.

  2. Daryl and his brother Darryl says:

    OT…Obama finally took off the gloves.

  3. James Pearce says:

    @Daryl and his brother Darryl: He…gave…a…speech.

  4. EddieInCA says:

    @James Pearce:

    He reminded the country what a US President is supposed to sound like.

    He reminded the country what a US President’s tone should be.

    He reminded the country what an absolute disgrace Trump is as a President.

    It was much more than a speech.

    Grow up.

  5. Gustopher says:

    @James Pearce: it’s what he does, he gives speeches. He’s a politician who is out of office.

    You lambast him for being ineffective, since it’s just a speech, but if he invaded Washington at the head of an army, slaughtered all the Republicans, and paraded through the National Mall with Trump’s orange head on a spit, you would lambast that for being shrill.

    What do you think Obama should be doing?

  6. Matt says:

    @James Pearce: Yeah that was the same talking point used by the Republicans when Obama started the general campaign…

  7. James Pearce says:


    It was much more than a speech.

    No….just a speech.


    You lambast him for being ineffective

    No, I’m lambasting Darryl for saying Obama “took the gloves off” by giving a damn speech.

    (It was a good speech.)

    @Matt: What, 10 years ago?

  8. teve tory says:

    @EddieInCA: He’s black, so that pretty much preordains Pearce’s response.

  9. SenyorDave says:

    @teve tory: No, he’s a Democrat, that pretty much preordained Pearce’s response.

  10. Kathy says:


    And that’s no small thing.

    Trump’s base will only see, perhaps can only see, that Obama’s black rather than orange or white. But many habitual republican voters will be stung by the contrast.

    These voters may opt to vote Democrat, or abstain from voting at all. This time there’s no Hillary Clinton deeply disliked by many republicans.

  11. Kathy says:

    Some people’s minds are like concrete: hard and permanently set.

  12. teve tory says:

    @SenyorDave: Today it’s blacks, so Pearce insulted Obama and Cory Booker. Tomorrow it’ll be Dems again. 😛

  13. Mister Bluster says:

    We’re supposed to stand up to discrimination. And we’re sure as heck supposed to stand up, clearly and unequivocally, to Nazi sympathizers.
    How hard can that be? Saying that Nazis are bad.

    Since he was my Senator from Illinois I got to vote for him three times.
    Were it not for the 22nd Amendment to the United States Constitution I might have had the chance to vote for him again…and again…and again.

  14. James Pearce says:

    I voted for Obama twice and supported him during his presidency. Some of you might even remember.

    I do not believe in the mystical powers of speeches and neither do any of you. It was 14 years ago that Obama gave his “red states/blue states” speech, a speech that’s been tacitly rejected by every progressive who dreams of 51 seats in the Senate. (Red states? Ugh!)

  15. An Interested Party says:

    Good grief…the wettest of blankets is present on this comment thread…

  16. Mister Bluster says:

    I do not believe in the mystical powers of speeches and neither do any of you.

    Oh yeah?

    REPUBLICAN President Pork Chop Pud said President Obama’s speech put him to sleep.
    I have high hopes that President Barack Obama will leave his gloves off and continue to mesmerize our current Degenerate-in-Chief into eternal slumber.

  17. James Pearce says:

    @Mister Bluster:

    REPUBLICAN President Pork Chop Pud said President Obama’s speech put him to sleep.

    That’s right, the target of Obama’s powerful, poignant speech…shrugs it off. It’s almost like we need more than a speech from Obama to steel our spines, huh?

  18. Just nutha ignint cracker says:

    @James Pearce: You seem to misunderstand the difference between the subject of a speech and the target. Trump is NOT part of the audience of that speech in any meaningful way. If he had been, Obama would have been wasting his time, much like you do here.

    Back to passing over the posts with the football picture on them for me.

  19. Mister Bluster says:

    @James Pearce:..It’s almost like we need more than a speech from Obama to steel our spines,…

    Who’s we Hambone?
    You got mouse in your pocket?

  20. James Pearce says:

    @Just nutha ignint cracker:

    You seem to misunderstand the difference between the subject of a speech and the target.

    No, I’m clearly and directly saying Obama’s speech isn’t politically relevant. Glad you guys are motivated though.

    @Mister Bluster:

    Who’s we Hambone?


  21. Mikey says:

    @James Pearce: If Obama’s speech motivates someone–or, hopefully, a lot of someones–to get off their butts and contribute/work for a campaign/go vote, then of course it’s politically relevant.

    Sometimes I wonder if you really know how people are. Or is it just that your whole “everything Democrats do is wrong” schtick requires you to brush a lot of things aside?

  22. James Pearce says:


    Sometimes I wonder if you really know how people are.

    Let me put it this way: People do not usually need to be “motivated” to act in their own self-interest. It’s just something they do.

    Might this “motivation” thing be a consequence of Dems choosing to represent tribal identities rather than interests?

  23. Mikey says:

    @James Pearce:

    Sometimes I wonder if you really know how people are.

    Let me put it this way: People do not usually need to be “motivated” to act in their own self-interest. It’s just something they do.

    Bahahahahahaha…well, that question’s answered, anyway.

    I mean, seriously, dude. There are whole industries built around motivating people to act in their own self-interest.

    But even if people didn’t very often need to be motivated to act in their own self-interest, there are still many things competing for their limited time. Given how difficult America makes voting, motivation to prioritize it is very important indeed.

    Might this “motivation” thing be a consequence of Dems choosing to represent tribal identities rather than interests?

    It always comes down to this with you. As if what you consider “tribal identities” (which never seems to include the tribal identity “straight white male”) don’t have some very vital interests, up to and including their very lives.

  24. Mister Bluster says:

    I’m a 70 year old straight white male. I am not interested in being in any tribe.

  25. James Pearce says:


    There are whole industries built around motivating people to act in their own self-interest.

    There are? Which ones?

    Given how difficult America makes voting, motivation to prioritize it is very important indeed.

    Enduring the bureacracy long enough to protect your so-called “vital” interests may be inconvenient and not without effort. But is it really “difficult?” Can you fill out a form? Can you make and keep an appointment?

    You want to motivate people to vote? Give them something to vote for. (For, not against.)

    which never seems to include the tribal identity “straight white male”

    “Straight white male” isn’t a tribal identity. It’s just another way to say “most white dudes.” And what can you say about “most white dudes” that on some level isn’t a stereotype?

    Beto O’Rourke and Ted Cruz in the same tribe? I don’t think so…

  26. An Interested Party says:

    Beto O’Rourke and Ted Cruz in the same tribe? I don’t think so…

    So then what are these tribal identities you speak of…

  27. mattbernius says:

    Getting back to the topic at hand, I recently read some analysis of this issue that points out the problem of the precedent that this decision sets — especially when the court, unlike in PA, isn’t willing to create the new map.

    All the NC Republicans need to do is create an equally gerrymandered map for 2020 and then, once again, run out the clock — just like they did this time.

    Without a doubt, the argument that the courts shouldn’t draw district lines appeals to my “rule of law” side. But the reality is that in the end, those orders tend to be toothless or easily subverted. Until someone can propose a better way of structuring the ruling, I do see a better way of created a fairer electoral system.

  28. Mikey says:

    @James Pearce:

    There are? Which ones?

    Dunno, James. Maybe you can ask Tony Robbins when he’s done with his personal trainer, who he uses so he doesn’t have to go to Weight Watchers or use Nutrisystem. He doesn’t need to read the thousands of motivational books out there, though, that would be redundant.

    But is it really “difficult?” Can you fill out a form? Can you make and keep an appointment?

    I can, but I’m an upper-middle-class professional white guy with an 8:00-to-4:30 job who gets 26 vacation days a year, so it doesn’t matter that voting day is in the middle of the workweek. And I live in an upper-middle-class professional white area where the politicians aren’t trying to shut down 90% of the polling locations.

    Those poorer and browner than I don’t enjoy such privilege.

    “Straight white male” isn’t a tribal identity.

    Hahahahaha…the fact we have President Trump proves otherwise.

  29. James Pearce says:


    Those poorer and browner than I don’t enjoy such privilege.

    Has it ever occurred to you that they may be poor and they may be brown and they may not have your privilege but they are not incapable? Maybe you just don’t appreciate how off-putting this kind of paternalism can be.

  30. Mikey says:

    @James Pearce: I’m not saying they’re incapable. That’s a strawman you’ve constructed. I never said anyone was incapable, I said America makes voting difficult for them.

    And it’s not paternalistic to point out the massive disparities in voter access between wealthy and poor communities. That’s just reality.