- The 4th US Circuit Court of Appeals could decide soon whether to issue an injunction blocking portions of North Carolina's new state Senate election map.
- Judges heard more than 40 minutes of oral argument on the topic Thursday. Plaintiffs had earlier requested a decision Thursday as part of a timeline that would delay at least some Senate primaries to May.
- Plaintiffs argue that two Senate districts in northeastern North Carolina are unconstitutional because of racial gerrymandering.
- US District Judge James Dever rejected an injunction in January.
A federal Appeals Court panel could decide soon whether to issue an injunction blocking portions of North Carolina’s new state Senate election map. An injunction would mean delaying at least some state Senate primaries until May.
Questions during more than 40 minutes of oral arguments Thursday at the 4th US Circuit Court of Appeals suggested that two of three judges are dubious about stepping into North Carolina’s 2024 election. The third judge offered more support to the map’s critics.
Judges Harvie Wilkinson, Roger Gregory, and Allison Jones Rushing jumped into the arguments early. Republican presidents appointed Wilkinson and Rushing. A Democratic president appointed Gregory.
Elisabeth Theodore, representing the map’s critics, argued that plaintiffs have provided “overwhelming evidence of legally significant racially polarized voting” that would support their case for an injunction.
“Is that necessarily true?” Wilkinson interjected. “It could establish simply partisan lines of voting. Some people vote Republican. Other people vote Democratic. Others are independent.”
“Partisanship could explain those kinds of statistics as well as race, and it would be up to the District Court to decide which is which, would it not?” Wilkinson asked.
Wilkinson also noted a “battle of experts” put forward by the map’s critics and Republican state legislative leaders. He cited the importance of promoting “stability” in North Carolina’s election schedule.
He pointed out changed electoral conditions, such as the fact that North Carolinians elected a black lieutenant governor in 2020, that should make the state proud of racial progress.
“North Carolinians cannot be proud of these two Senate districts,” Theodore responded. “They took North Carolina’s Black Belt and split it down the middle.”
Rushing questioned the plaintiffs’ request to have the 4th Circuit second-guess US District Judge James Dever’s decision not to grant an injunction against the map. She also cited the Purcell principle, a federal court standard that advises judges to avoid stepping into an ongoing election.
Gregory chimed in to defend Theodore’s argument. He raised concerns about a disputed Senate district stretching from the “great Commonwealth of Virginia to the sea.”
Defending the map, attorney Phil Strach said appellate judges must examine whether Dever’s ruling involved “clear error.”
“Under this standard, the district’s decision must be upheld,” Strach said.
“Does clear error include ignoring clear facts in the record?” Gregory asked.
“The district judge gets to decide which facts he or she finds to be credible or supportable,” Strach responded.
Wilkinson asked Strach how an injunction would affect the Senate map. It’s possible the entire state Senate map would have to be redrawn, Strach said. “That would impact the entire state.”
Critics of the state Senate map want the 4th Circuit to block at least two Senate districts in northeastern North Carolina. The legal complaint argues that the districts are based on unconstitutional racial gerrymandering.
Gov. Roy Cooper and state Attorney General Josh Stein, both Democrats, support an injunction against the map approved by Republican legislators.
“Eight contiguous northeastern North Carolina counties are the State’s only counties with majority-Black populations,” wrote lawyers from Stein’s state Justice Department. “In its most recent districting plan, the General Assembly cracked these counties into three separate state senate districts, diluting Black voting power in the only majority-Black region of the State.”
“This dilution of Black voting power represents a textbook violation of the Voting Rights Act — one of the most successful and important laws in our nation’s history,” Cooper and Stein’s brief continued. “Since its enactment in 1965, the Act has been essential to helping Black Americans secure a meaningful role in our nation’s civic life, especially in the South after decades of discrimination under Jim Crow.”
“But the Act’s work is far from done,” Cooper and Stein argued. “In North Carolina, and northeastern North Carolina in particular, its protections remain urgently needed. Black North Carolinians continue to be repeatedly targeted by discriminatory laws making it harder for them to vote and exercise their political rights.”
Plaintiffs Rodney Pierce and Moses Matthews are black voters who live in northeastern North Carolina. They also criticized the Senate map in their 4th Circuit brief.
“This case involves an egregious and clear-cut violation of Section 2 of the Voting Rights Act (VRA), and seeks a limited and straightforward remedy that would affect only two of North Carolina’s 50 Senate districts,” the plaintiffs’ lawyers wrote. “The new state Senate map enacted by the General Assembly on October 25, 2023, cracks Black voters in northeastern North Carolina’s Black Belt counties between Districts 1 and 2, diluting their voting power.”
“Under the enacted map, over 100,000 Black voters in the Black Belt counties will not be able to elect candidates of their choice because their votes will be drowned out by white majorities in both districts who vote against Black-preferred candidates,” Pierce and Matthews argued.
Lawyers for Senate Leader Phil Berger, R-Rockingham, and House Speaker Tim Moore, R-Cleveland, defended the map in their competing brief. They pointed to Dever’s Jan. 26 decision to reject an injunction.
“This appeal is taken from a district-court order declining to require North Carolina to violate the Constitution,” legislative lawyers wrote. “In the past 30 years, every state and federal court to have adjudicated a redistricting case in this State has held that majority-minority districts are unnecessary and often impermissible. These districts can upend the county groupings required by the North Carolina Constitution and trigger strict scrutiny under the U.S. Constitution.”
“Not one North Carolina district in decades has satisfied that standard,” legislators’ brief continued. “Dozens have failed. … In considering the improbable assertion that Voting Rights Act [Section 2] now demands a new majority-minority district in northeast North Carolina, the district court found practically every contested fact question against Plaintiffs (the two voters who brought this suit) and determined that multiple independent failings render their claim highly unlikely to succeed. Under the governing clear-error standard, that decision is unimpeachable.”
The Appeals Court has set no timetable for a decision. Plaintiffs requested a decision today. That request was tied to a proposed timeline that would delay at least some state Senate primary elections to May 14.
Dever accepted an earlier brief from Cooper and Stein. The judge noted the “self-evident political interest” the Democratic politicians have in blocking the Republican-drawn 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 trial judge’s 69-page order also explained why he rejected arguments from the Senate map’s critics.
“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.
Candidate filing is complete under challenged districts. State election officials started mailing absentee ballots on Jan. 19. Early voting starts Thursday. The primary election is scheduled for March 5.
A unanimous three-judge 4th Circuit appellate panel dismissed the plaintiffs’ earlier 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. Wilkinson and Rushing were appointed by Republican presidents. Gregory was appointed by a Democrat.
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.’”