But it’s not clear if it will get the information it requires from the defendants in the General Assembly, the Executive Branch, and independent state election officials any time soon.
The order, issued late Friday afternoon, responds to a June 5 ruling by the U.S. Supreme Court agreeing with the three-judge panel, which declared 28 legislative districts unconstitutional because of racial gerrymandering. But the justices denied the lower court’s demand for legislative elections in 2017 because the judges did not offer a convincing argument why the expense, difficulty, and disruption of a special election covering only part of the state was, on balance, worth the problems it would cause.
Gov. Roy Cooper called the General Assembly into a special session to draw new districts. It was supposed to start Thursday. But House and Senate leaders determined the session was unconstitutional, presumably leaving Cooper no chance to prevail other than a return to court.
Thursday, the plaintiffs asked the court for quick action, and the judges are trying to provide it. “The parties are advised that the court intends to act promptly on this matter upon obtaining jurisdiction from the Supreme Court,” the panel said Friday.
That may be difficult. The panel’s order asks for submissions from the legislature, the state, and the State Board of Elections. But the state board is tied up in litigation. A lawsuit filed this week in federal court challenges the constitutionality of the new North Carolina Bipartisan State Board of Elections and Ethics Enforcement because it will not have any members representing unaffiliated voters.
And the new elections board has no members at all, because Cooper hasn’t selected anyone to serve on it as required by the law creating the board.
Finally, the three-judge panel isn’t clear who would file a brief representing the state. Earlier, the U.S. Supreme Court refused — without citing a specific reason — to take up a 4th Circuit Court of Appeals decision tossing North Carolina’s election reform law, including a requirement for voters to prove their identity at the polls.
But in that order, Chief Justice John Roberts suggested it wasn’t clear who would defend the state in an appeal. Former Gov. Pat McCrory was listed as a defendant in the initial lawsuit. He lost the November 2016 election to Cooper, and Cooper asked to be removed from the lawsuit.
Friday, the three-judge panel asked for clarification about who “has authority under state law to speak on behalf of the state … regarding the drawing of new districts.”
Cooper issued a statement early Friday evening.
“I’m pleased the court intends to act swiftly,” the governor said. “There is no reason for Republican legislators to drag their heels in correcting this wrong after the Supreme Court affirmed their map to be unconstitutional.”
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