Lawsuits regarding North Carolina’s congressional maps, originally drawn in 2011 and the subject of seemingly endless litigation, are once again back before the Supreme Court of North Carolina. This time, however, the trip may be short.
First, some background: the suits at issue here were originally filed challenging several state and congressional districts on the basis of racial gerrymandering. Following multiple rounds of appeals to, and remands from, the United States Supreme Court and several intervening decisions in related cases, the Wake County Superior Court issued a final order on February 11, 2018, concluding that the challenged districts were unconstitutional but that no further remedy could be offered since the maps had already been redrawn, and dismissing the other claims as moot.
On March 14, 2018, the Legislative Defendants filed a notice of appeal directly to the Supreme Court of North Carolina pursuant to N.C. Gen. Stat. § 120-2.5.
“Not so fast,” cried the Plaintiffs-Appellees. On May 11, 2018, the Plaintiffs-Appellees moved to dismiss the appeal for lack of jurisdiction, arguing that the Legislative Defendants were required to appeal to the Court of Appeals, not the Supreme Court. The reason? The General Assembly had repealed section 120-2.5 in December 2016, eliminating the right of direct appeal to the Supreme Court. And, the Plaintiffs-Appellees noted, appeal to the wrong court is a jurisdictional defect that requires dismissal.
In response, the Legislative Defendants argued that the Supreme Court should treat their appeal as a petition for writ of certiorari or, alternatively, transfer their case to the Court of Appeals. However, the Plaintiffs-Appellees pointed out that the Legislative Defendants did not comply with Appellate Rule 21(c), and failure to follow the Appellate Rules is in itself a separate ground for dismissal.
Plaintiffs-Appellees also argued that even if the Court does consider the appeal as a petition for writ of certiorari, it should be denied because the Legislative Defendants are sophisticated litigants who were on notice of the change in the law:
These appellants are the very people who repealed the direct appeal to the Supreme Court. In fact, Senator Rucho was a primary sponsor of the bill. Representative Lewis proposed an amendment to the bill, which was adopted. Senator Berger and Representative Lewis both voted in favor of the bill.
Finally, while the Legislative Defendants argued that the repeal was not intended to apply to this case, the Plaintiffs-Appellees were skeptical:
In the last decade, this Court has cited § 120-2.5 only three times—in Dickson v. Rucho, 368 N.C. 481, 499, 781 S.E.2d 404, 419 (2015); Dickson v. Rucho, 367 N.C. 542, 545, 766 S.E.2d 238, 242 (2014); and Dickson v. Rucho, 366 N.C. 332, 339, 737 S.E.2d 362, 368 (2013). Defendants would have this Court believe that, in removing the right of direct appeal without any statement regarding retroactivity, they gave no consideration to its application in the one case in which it had been repeatedly applied and to which they were all parties.
While the Supreme Court has yet to rule on the motion, I doubt that it will be before them for long.