Judge denies injunction request in state Senate redistricting lawsuit

US District Judge James Dever (Image from duke.edu)

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  • A federal judge has denied a request for an injunction blocking portions of the new state Senate map for North Carolina's 2024 elections.
  • Plaintiffs filed a notice of appeal of US District Judge James Dever's 69-page order.
  • Plaintiffs argue that two Senate districts in northeastern North Carolina were based on unconstitutional racial gerrymandering. Dever ruled that the plaintiffs accused state lawmakers of violating the Constitution "by not engaging in race-based districting and not creating a racially gerrymandered majority-black Senate district."

A federal judge has denied a requested injunction in a lawsuit challenging North Carolina’s new state Senate election map. The decision arrived Friday, almost two months after plaintiffs had initially called for court action.

Plaintiffs filed a notice of appeal to the 4th US Circuit Court of Appeals in Richmond.

US District Judge James Dever’s 69-page order explained why 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 questioned why plaintiffs included Vance and Washington counties in their calculations, yet left those two counties out of their proposals for a new replacement Senate district. He compared that plan to one from the 1990s, when Democratic legislators in North Carolina attempted to address a racial gerrymandering concern in the southeastern part of the state by drawing a majority-minority district along Interstate 85.

“It’s like saying we don’t have to put the Band-Aid on the cut,” the judge said.

The plaintiffs had objected in late December to Dever scheduling the hearing. The Senate map’s critics preferred quicker action on their injunction request. Dever made several references to the importance of meeting with opposing lawyers in person.

“Having a hearing is a good thing,” he said. “I have questions. I have questions for the defendants. I have questions for you,” referencing Speas.

A key question involved one data point in a plaintiff’s expert report. A table in that report appeared to suggest that Democrats would have won an election in one of the challenged districts using 2022 election results.

“Doesn’t that dramatically undercut your case?” Dever asked Speas. The judge later suggested the data point “completely eviscerates” the racial gerrymandering argument.

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.

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.

The Voting Rights Act is used now as a “one-way ratchet” designed to benefit one political party, Strach argued.

He also noted that some of the plaintiffs’ claims about racial polarization are better explained as examples of political polarization that doesn’t involve VRA lawsuits. “We are the poster child of political polarization,” Strach claimed.

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.

The State Board of Elections filed court documents on Dec. 22 explaining how a ruling favoring the plaintiffs could affect North Carolina’s election timeline.

Candidate filing under the challenged maps ended on Dec. 15. Absentee ballot distribution is scheduled to start Jan. 19, with in-person early voting starting Feb. 15.

“If this Court (or any other) orders new State Senate districts to be drawn, the impact on the elections calendar will depend on the timing of that order,” state lawyers warned. “To start, to accommodate a new map without moving the dates for any elections contests, the State Board would need to receive the new map in sufficient time for candidate filing for the affected districts to begin during the first week of January.”

“The length of the candidate-filing period would depend on the court order, but the filing period could conclude no later than January 10 for the State Board and county boards to complete ballot preparation by the January 19 deadline,” the elections board’s lawyers added. “In that scenario, the State Board and relevant county boards would need to reassign voters to the new districts simultaneous with candidate filing.”

A longer mapmaking process would threaten the March 5 primary date, the elections board’s court filing warned.

“If a new map is needed but is not ordered by the time described above, the State Board recommends moving the affected election contests to May 14, 2024, the date currently set for a second primary,” according to the elections board. ”To make this timeline work, candidate filing for any remedial districts would need to be complete before canvass of the March primary on March 15, 2024.”

“If a remedial map were not provided in sufficient time for candidate filing to occur in early March, mailing absentee ballots by March 28 — and, thus, holding the contests for the affected State Senate districts on May 14, 2024 — would not be administratively possible,” the elections board’s lawyers explained.

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 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.’”

“The Black population in North Carolina’s Black Belt counties is sufficiently numerous and geographically compact to form a majority-minority district,” the suit argues. “Voting in the region is also highly polarized along racial lines — Black voters there are politically cohesive, but white voters vote sufficiently as a bloc to usually defeat minority candidates of choice. Nonetheless, SB 758 ‘cracks’ Black voters in the region across multiple districts, including Senate District 2, which stretches more than 160 miles from the Virginia border to Carteret County on the Atlantic Ocean.”

“When considered against the totality of the circumstances, SB 758’s cracking of Black voters in this region dilutes their voting strength in violation of Section 2 of the Voting Rights Act,” the plaintiffs’ lawyers argued.