As legal battles continue over North Carolina’s election maps, one recent development deserves special recognition: A state three-judge panel has chosen to distinguish the legal process from partisan gamesmanship.
It’s especially noteworthy that the panel of two Democrats and one Republican rejected an argument that could have helped the Democratic Party and its ideological allies.
To recap: Superior Court Judges Paul Ridgeway and Alma Hinton, both Democrats, and Republican Joseph Crosswhite decided last week not to step into the debate over election maps for N.C. House districts in Wake and Mecklenburg counties. Barring further legal action, the decision means that voters heading to the polls this year in North Carolina’s two largest counties will see districts drawn by the Republican-led General Assembly. They will not face districts drawn by a Stanford law professor.
That outcome was far from certain.
Ridgeway, Hinton, and Crosswhite have overseen trial court proceedings in the Dickson v. Rucho redistricting lawsuit since 2011. The case headed back to their courtroom last September after three trips to the N.C. Supreme Court and two trips to the U.S. Supreme Court. The three judges’ latest task involved deciding whether any matters in the longstanding case remain unresolved.
Meanwhile, plaintiffs’ lawyers in a separate federal case, Covington v. North Carolina, had been searching for a legal avenue that would help ensure that Stanford professor Nathaniel Persily’s electoral mapmaking handiwork would prevail in Wake and Mecklenburg counties this year.
The U.S. Supreme Court had delivered them a blow. Seven of the nine justices agreed to block a lower court ruling favoring Persily’s districts in those two counties. The high court did not explain its decision. But most observers suspected that the justices agreed with arguments from the General Assembly’s lawyers. Those lawyers contended that the federal trial court had overreached by meddling with districts that were alleged to have violated state — rather than federal — constitutional rules.
To the Covington plaintiffs’ lawyers, the conditions appeared right for an appeal to Ridgeway, Hinton, and Crosswhite — state judges dealing with state constitutional issues linked to redistricting. The three judges stood in a perfect position to step in and address the U.S. Supreme Court’s concerns.
The three state judges declined.
First, they noted concerns about timing. Had they adopted the Covington plaintiffs’ recommendation, their ruling could have generated chaos. Candidate filing was scheduled to start within hours of the court’s decision.
But the three judges also raised a more pressing legal issue. “[S]ignificant practical difficulties, if not jurisdictional impediments, exist when one court is called upon to construe and enforce another court’s order that was made upon a distinct and separate record by distinct and separate plaintiffs.”
“[T]his three-judge panel concludes that the doctrine of mootness and judicial economy dictate that this litigation be declared to be concluded,” according to their order. “The legislative and congressional maps now under consideration in federal courts are not the product of the 2011 redistricting legislation considered by this trial court, but rather the product of later actions of the General Assembly and the scrutiny of the federal courts.”
It’s a nicer way of saying: No, Covington lawyers, you can’t hijack a different lawsuit with different plaintiffs and a different case history to achieve your goals.
The three state judges did not rule out additional legal action. “While plaintiffs are certainly not foreclosed from seeking redress in the General Court of Justice of North Carolina for state constitutional claims that may become apparent in the 2016 and 2017 redistricting plans, those claims ought best be asserted in new litigation.”
One of the plaintiffs’ lawyers issued a statement complaining about the decision.
“We are concerned by the precedent set in today’s order,” said Allison Riggs of the Southern Coalition for Social Justice. “When a plan is found to be unconstitutional, it’s only right for the court to review the remedy enacted to make sure that it is legal and fair.”
Riggs’ statement makes sense only if one assumes that the Covington and Dickson cases are interchangeable. Under this theory, court rulings applicable in one case ought to apply to the other as well. It doesn’t matter that the named plaintiffs in the two cases are different people, or that one case started in the state court system and the other in federal court.
That’s a far different story than the one Riggs and her colleagues put forward two years ago. In February 2016, lawyers for the General Assembly wanted the federal courts to toss out the Covington case and the Harris v. Cooper congressional redistricting case.
The General Assembly’s argument at the time? Covington and Harris were “essentially identical” to the Dickson case and another suit that had been resolved in favor of the Republican-led General Assembly.
If the cases were interchangeable, legal principles known as “res judicata” and “collateral estoppel” would have barred the plaintiffs in Covington and Harris from proceeding with their federal suits. In essence, the courts would have said, “You lost. Go home.”
The General Assembly’s courtroom victory in Dickson would have remained intact, and election maps drawn in 2011 would have remained on the books in North Carolina — perhaps through the end of the decade.
Riggs and her colleagues fought successfully in 2016 against the General Assembly’s argument. They convinced federal judges that their plaintiffs and the legal issues of their cases should be distinguished from those in the state Dickson case. The federal cases proceeded, and federal courts eventually threw out the 2011 election maps.
Now Riggs appears to have abandoned the notion that the Dickson and Covington cases are distinct. Only if the cases are “essentially identical” would a state three-judge panel believe it has authority to “review the remedy” in one case and apply it to the other.
Ridgeway, Hinton, and Crosswhite were unwilling to play along. Their order recognized the legal distinction between the two cases.
They decided to follow the dictates of the legal process, rather than a course better suited to partisan politics.
Mitch Kokai is senior political analyst for the John Locke Foundation.