Full 4th Circuit will not hear redistricting plaintiffs’ injunction request

State Senate districts in Senate Bill 758 face a federal legal challenge. (Image from ncleg.gov)

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  • The full 4th US Circuit Court of Appeals will not consider an injunction to block portions of North Carolina's state Senate election map for 2024.
  • An appellate panel split 2-1 in March in rejecting an injunction. In a new order Tuesday, all three judges rejected calling for an en banc hearing that would include all of their 4th Circuit colleagues.
  • A trial date in the case could take place in December. Legislative leaders who defend the Senate map prefer a trial in 2025.

The full 4th US Circuit Court of Appeals will not consider an injunction that would block at least some state Senate districts for this fall’s election. A three-judge 4th Circuit panel issued a ruling this spring rejecting an injunction.

The court issued a new order Tuesday rejecting plaintiffs’ request for an en banc hearing by all members of the 4th Circuit. Judges Allison Jones Rushing, Harvie Wilkinson, and Roger Gregory agreed to the decision. None of the judges called for a vote among 4th Circuit colleagues about whether to hear the case.

Court documents suggest the earliest possible date for a trial in the case is December. Legislative leaders defending the Senate election map prefer a 2025 trial date.

Critics of the state Senate map submitted a petition on April 11 for the en banc hearing. The petition arrived two weeks after the panel of Rushing, Wilkinson, and Gregory split over granting an injunction.

A March 28 Appeals Court order upheld US District Judge James Dever’s Jan. 26 ruling rejecting an injunction. Plaintiffs wanted to block two state Senate districts in northeastern North Carolina.

“The denial of preliminary relief is just that: preliminary,” Rushing wrote in March. “It may be that with discovery and further factual development, Plaintiffs can prove that these two Senate districts violate Section 2 of the [Voting Rights Act] and they are entitled to a majority-minority district in northeastern North Carolina.”

“But the standard for winning relief before trial and obtaining concomitant federal court interference with state redistricting decisions while elections are underway is high indeed, and Plaintiffs have not satisfied it with the record they have developed thus far,” Rushing added. “Instead, the legal principles that must govern our decision direct us not to intervene and order North Carolina to create race-based electoral districts while this litigation remains pending.”

Wilkinson joined Rushing’s decision. Republican presidents appointed both judges. Gregory, originally appointed by a Democrat, dissented.

“In October of last year, the North Carolina General Assembly enacted a map that
cracked the state’s Black Belt right down the middle,” Gregory wrote in March. “Yet the district court concluded that this new map was unlikely to dilute Black voters’ power. In doing so, it misconstrued the standard Appellants must meet … and improperly concluded that Appellants had to present a specific type of analysis that neither this Court nor the Supreme Court has ever required.”

The maps’ critics are the appellants in the case. State legislative leaders are appellees.

“Further, in balancing the equities of granting the preliminary injunction, the district court made much of Appellants’ 28-day delay in bringing the case, without so much as mentioning Appellees’ six-month delay in enacting the map in the first place,” Gregory added. “Therefore, I cannot agree with my colleagues that the district court’s denial of a preliminary injunction was appropriate.”

The 4th Circuit issued its ruling more than a month after a three-judge panel heard oral arguments in the case Pierce v. North Carolina State Board of Elections. Questions during the Appeals Court’s Feb. 15 hearing signaled that Rushing and Wilkinson were skeptical of the plaintiffs’ arguments. Gregory offered more support to the Senate map’s critics.

Elisabeth Theodore, representing the plaintiffs, argued that the case provided “overwhelming evidence of legally significant racially polarized voting” that would support 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.”

The lawsuit challenges two state Senate districts in northeastern North Carolina, Plaintiffs contend the Senate map should have featured one district in which the region’s black population would have been likely to elect the candidate of its choice.

Rushing questioned the plaintiffs’ request to have the 4th Circuit second-guess Dever’s work in the case. 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 argue that the two targeted Senate districts are based on unconstitutional racial gerrymandering.

Gov. Roy Cooper and state Attorney General Josh Stein, both Democrats, supported 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.

Dever accepted an earlier brief from Cooper and Stein. The trial 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.”

Plaintiffs Rodney Pierce and Moses Matthews are black voters who live in northeastern North Carolina. Pierce is now the Democratic nominee to serve in the state House of Representatives in District 27. Pierce knocked off incumbent Michael Wray in the March 5 primary election. Pierce faces no opposition in November.

Lawyers for Piece and Matthews 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.”

When taking the case to the 4th Circuit, plaintiffs had asked for a decision about an injunction by Feb. 15. That request was tied to a proposed timeline that would delay at least some state Senate primary elections to May 14.

The 4th Circuit’s decision arrived more than a month after the plaintiffs’ proposed timeline.

Dever’s 69-page order rejecting an injunction explained why he ruled against the 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.