WASHINGTON -- Lawyers arguing North Carolina's partisan redistricting case hope it will appear before the U.S. Supreme Court this fall. If that happens, it could be heard by a new justice.
- Kennedy's retirement may impact the N.C. gerrymandering case.
- The lower court previosuly found GOP lawmakers unfarily carved up the districts to give the party an advantage.
- It is unknown if the higher court will even take the case.
With Justice Anthony Kennedy announcing his retirement, the bench will likely have a new member come this fall. The lawyers for the plaintiff say that could alter how they choose to structure and present their case.
A lower court already previously found that state Republican lawmakers unfairly carved up the state's congressional districts to give the GOP an unfair advantage. One lawmaker openly bragged about his ambition to help the GOP secure 10 of 13 congressional seats.
"The smoking gun evidence of intent is clear," said Allison Riggs with the Southern Coalition for Social Justice, one of the lawyers arguing.
Paul Smith with the Campaign Legal Center, who is also helping with the North Carolina case, said they had originally planned to "target" Kennedy, hoping to convince him to join with liberal justices to knock down the state's congressional district maps.
For years, Supreme Court justices have punted on making a decision in partisan gerrymandering cases, including in the most recent term, when they sent a case out of Wisconsin back to the lower court to be reevaluated. "This is a classic political question, the sort of question that courts historically have shied away from," said Bill Galston, a senior fellow with the Brookings Institution.
However, Kennedy kept hopes alive. As part of a 2004 case, Kennedy argued that one day a method could be developed to prove a map is overly partisan. He wrote, “That no such standard has emerged in this case should not be taken to prove that none will emerge in the future.”
Kennedy long was the court's wildcard, siding with liberals on some issues and conservative on others. Convincing him to join with the liberals was considered a potential path to victory for the plaintiffs in North Carolina case.
"He was the one that was certainly inviting litigants to come forward and tell him a story, where would you draw a line, what is politics as usual, versus unconstitutional partisan gerrymandering," Riggs said.
The question is, who will replace him? With President Donald Trump promising a conservative justice, it may be harder to win them over.
Lawyers say depending on who Trump picks, they may need to refocus their argument to emphasize how gerrymandered districts can impede on first amendment rights. Riggs says the more conservative justices have accepted first amendment arguments in unrelated cases throughout this previous term.
For example, gerrymandered districts - the argument goes - hurt free speech by curtailing the power individual votes. They would argue it also uses an individual's right to assemble against them, by manipulating district lines based on party-affiliation.
Riggs also says the party of the president who appointed the judge does not always provide the full picture. A lower court made up of Democrat and Republican-appointed judges found the districts to be gerrymandered. Kennedy himself was also appointed by Republican Ronald Reagan, and he still often served as a swing vote.
She believes the facts of this case are so egregious, they will be able to convince even the skeptical Supreme Court justices. "This is the place where the courts need to step in and the consequences of them not, are pretty dire," she said.
That is - if the highest bench decides to take up the case at all. They may still find it to not meet the merits.
Earlier this year, the Supreme Court sent the North Carolina case back to the lower courts to be re-evaluated based on their findings in Wisconsin. Riggs says they will be submitting legal briefs later this month to the lower court, arguing that they meet the standards because they can show the impact of gerrymandering in each of North Carolina's 13 districts.
They still hold out hope that the Supreme Court will hear the case this upcoming term with a ruling next summer, that way there is time to redraw the congressional maps before the 2020 election.