Appeals Court agrees to expedite redistricting appeal

Carolina Journal photo by Mitch Kokai

Listen to this story (11 minutes)

  • The 4th US Circuit Court of Appeals will expedite its consideration of a lawsuit challenging North Carolina's new state Senate election map.
  • The court ordered all parties in the case to submit briefs on Feb. 5. Those "simultaneous" briefs will be followed by simultaneous replies on Feb. 8. A one-sentence order did not mention a timeline for a decision.
  • Critics of the Senate map asked for a decision by Feb. 15. Critics also set out a proposed timeline that could lead to delayed Senate primary elections in May.

A federal Appeals Court will expedite its consideration of a lawsuit challenging North Carolina’s new state Senate election map. Appellate judges issued an order Monday granting the plaintiffs’ request for a speedy review.

All parties in the case will submit “simultaneous” briefs by Feb. 5. Simultaneous reply briefs are due Feb. 8.

The one-sentence order arrived three days after critics of the new Senate map took the case to the 4th US Circuit Court of Appeals.

An emergency motion filed Friday set out a proposed schedule that led to a proposed date of Feb. 15 for an appellate decision. State legislative leaders opposed plaintiffs’ compressed timeline.

Plaintiffs turned to the 4th Circuit after US District Judge James Dever issued an order Friday rejecting the plaintiff’s request for an injunction blocking the Senate map for this year’s elections.

“This action challenges two districts in North Carolina’s 2023 enacted Senate map on the ground that they dilute Black voting power in violation of Section 2 of the Voting Rights Act,” according to the emergency motion. “The VRA violation in this case is egregious and entirely clear-cut. The 2023 Senate map surgically cracks northeastern North Carolina’s Black Belt counties right down the middle, between Senate Districts 1 and 2, ensuring that Black voters will not be able to elect their candidates of choice in either district.”

“There is still time to correct this egregious VRA violation and avoid irreparable harm to over 100,000 Black voters in northeastern North Carolina,” plaintiffs’ lawyers argued. “There is presently no primary election in either SD1 or SD2 because no more than one candidate from each party filed to run in those districts. If a primary election is needed in replacement versions of these two districts, the State Board has confirmed … that it is administratively feasible to hold such primary elections on May 14, the date already scheduled for runoff primaries.”

The plaintiffs suggested a schedule that would have them submit their opening brief Wednesday, with the State Board of Elections and legislative leaders responding by Feb. 5. Oral arguments would take place on Feb. 9 or the week of Feb. 12.

The 4th Circuit order ends briefing by Feb. 8 but sets no oral argument. The order does not mention a timeline for a decision.

The map’s challengers asked appellate judges to issue an order by Feb. 15 calling for new Senate districts from the General Assembly by Feb. 22. That would leave time for future appeals up to a final court decision by March 6 under the plaintiffs’ plan. Candidate filing in the new districts would take place March 7-14, with a newly scheduled primary election on May 14.

State legislative leaders filed a court document Monday morning opposing the proposed timeline.

“Plaintiffs’ emergency motion to expedite proposes severe burdens for no possible benefit,” lawmakers’ lawyers wrote. “Plaintiffs did not move for an injunction pending appeal, and
that is likely because they know they cannot show a likelihood of success on the merits. The district court found nearly all contested facts, credibility questions, and equitable considerations against Plaintiffs.”

“Moreover, voting in North Carolina’s 2024 primary elections is happening right now, the district court found that Plaintiffs’ proposed remedy would require reconfiguration of the entire senate plan — and threaten a statewide election meltdown — and an injunction is
plainly foreclosed by the Purcell doctrine,” legislators’ court filing continued. The Purcell doctrine cautions federal courts against interfering in an active election.

“There is no point to imposing the stark burdens Plaintiffs propose to the near-certain result that the order below will be affirmed,” legislative lawyers wrote.

Dever’s 69-page order explained why he rejected arguments from the Senate map’s critics. Two plaintiffs from northeastern North Carolina argue that two of the map’s districts were based on unconstitutional racial gerrymandering. Such gerrymandering would violate Section 2 of the federal Voting Rights Act.

“This case does not involve the North Carolina General Assembly engaging in race-based districting,” Dever wrote. “Indeed, the record demonstrates that when the General Assembly created the Senate districts in North Carolina Senate Bill 758 (“SB 758”) in October 2023 for use in the 2024 elections, the General Assembly did not have racial data in the computer. The General Assembly did not have racial data in the computer in 2023, in part, because federal litigation from 2011 to 2016 helped to show that there was not legally significant racially polarized voting in North Carolina, including in the counties in northeast North Carolina at issue in this case.”

“This case involves two plaintiffs who contend that the General Assembly violated Section 2 of the Voting Rights Act of 1965 by not engaging in race-based districting and not creating a racially gerrymandered majority-black Senate district in northeast North Carolina,” Dever added.

Dever focused on the plaintiffs’ request to block elections from moving forward in challenged Senate districts. “Plaintiffs make this extraordinary request even though (1) the 2024 Senate elections are underway in North Carolina, (2) plaintiffs presented no evidence that anyone provided the General Assembly in 2023 a strong basis in evidence to believe that Section 2 required the General Assembly to create a majority-black Senate district in northeast North Carolina, and (3) insufficient evidence shows that Section 2 requires a majority-black Senate district in northeast North Carolina,” the judge wrote.

“Plaintiffs have failed to demonstrate that Section 2 of the Voting Rights Act requires an extraordinary, mandatory preliminary injunction compelling the race-based sorting of voters for the 2024 Senate elections in North Carolina,” Dever added. “On the current record, plaintiffs are not likely to succeed on the merits of their Section 2 claim and are not likely to suffer irreparable harm absent the requested extraordinary, mandatory preliminary injunction.”

“Moreover, the balance of hardships does not tip in plaintiffs’ favor, and the requested mandatory preliminary injunction is not in the public interest,” the judge wrote. “In fact, the requested injunction would constitute a textbook violation of Purcell v. Gonzalez,” a federal precedent that calls for judges to avoid making decisions that interfere with a current election.

Dever spent nearly two hours on Jan. 10 raising questions about the case, Lawyers for the plaintiffs — two black voters living in Martin and Halifax counties — emphasized in Dever’s courtroom that northeastern North Carolina has eight majority-black counties that could help form a state Senate district favoring minorities.

The General Assembly’s refusal to draw a minority district in that part of the state prompted the lawsuit. It challenges two new Senate districts as examples of racial gerrymandering that violates the federal Voting Rights Act, the lawyers argued.

“The plaintiffs were put in districts in which they cannot elect candidates of their choice,” said Edwin Speas, representing the two voters.

Dever reminded plaintiffs that they are seeking “extraordinary relief.” An injunction against the Senate map would delay primary elections for at least two Senate districts, with the possibility of ripple effects in other parts of the state.

“Relief was too late the moment they filed the lawsuit,” said Phil Strach, representing legislative leaders. The lawsuit arrived in late November, almost a month after the Republican-led General Assembly approved the new map.

Candidate filing is complete under challenged districts. State election officials started mailing absentee ballots on Jan. 19. Early voting starts Feb. 15. The primary election is scheduled for March 5.

Strach reminded Dever that the General Assembly’s critics have flipped their arguments about racial gerrymandering. In lawsuits filed during recent election cycles, critics argued that the General Assembly made improper use of racial data to draw election maps. Plaintiffs’ experts argued in earlier case that northeastern North Carolina did not have “legally significant” racially polarized voting, Strach argued.

“The problem was that Republicans kept winning the legislature,” he said. Now plaintiffs are “running away” from evidence they presented six or seven years ago.

A unanimous three-judge 4th Circuit appellate panel dismissed the plaintiffs’ request to treat Dever’s previous actions in the case as a “constructive denial” of their injunction. Judges Harvie Wilkinson, Roger Gregory, and Allison Jones Rushing also refused to set a deadline for Dever’s ruling on an injunction.

The plaintiffs had asked the Appeals Court to set a Jan. 15 deadline for Dever’s decision. “We know the trial court will be mindful of the time-sensitive nature of the VRA suits as it proceeds,” appellate judges responded.

Wilkinson and Rushing were appointed by Republican presidents. Gregory was appointed by a Democrat.

Gov. Roy Cooper and state Attorney General Josh Stein filed court documents Dec. 12 supporting the plaintiffs seeking a preliminary injunction. Two of the state’s leading Democrats in elected office, Cooper and Stein asked to submit a friend-of-the-court brief against the Republican-led General Assembly’s election map. Dever accepted that request within Friday’s order.

The judge noted the “self-evident political interest” Cooper and Stein have in blocking the Senate election map. “The brief, however, adds no new evidence concerning the legal issues,” Dever wrote. “Likewise, as for the legal analysis, the brief merely parrots the conclusions in the plaintiffs’ brief. … Although the court grants Governor Cooper’s and Attorney General Stein’s motion to file an amicus brief, the court rejects their arguments as factually and legally unsupported.”

The plaintiffs are working with Washington-based attorneys from Arnold & Porter Kay Scholer, veterans of North Carolina redistricting battles. They are also working with Speas, who defended Democratic election maps against lawsuits as a state Justice Department lawyer before joining the private sector.

The suit labels North Carolina’s state Senate map, Senate Bill 758, “just the most recent episode in North Carolina’s ‘long history of race discrimination generally and race-based vote suppression in particular.’”