Lawmakers oppose expedited schedule in redistricting lawsuit

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

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  • Legislative leaders oppose a proposed expedited schedule for addressing a lawsuit challenging North Carolina's new state Senate election map.
  • Opponents of the map planned to seek a preliminary injunction Wednesday. They want a court to order lawmakers and the State Board of Elections to respond by Monday, with a decision about an injunction Dec. 1.
  • Candidate filing for state Senate races and other 2024 elections begins on Dec. 4.

Legislative leaders oppose a proposed expedited schedule for addressing a federal lawsuit challenging North Carolina’s state Senate election map. Lawmakers explained their concerns in a court filing Wednesday.

Opponents of the state Senate map filed a request for an injunction on the same day. They asked a court to set Monday as the deadline for a response from lawmakers and the State Board of Elections. The expedited schedule calls for a court decision on an injunction by Dec. 1, three days before candidate filing is scheduled to begin in the 2024 election season.

Arriving Wednesday afternoon, the plaintiffs’ motion for a preliminary injunction included a 33-page supporting memorandum and more than 400 pages of expert exhibits.

“Plaintiffs have yet to file a preliminary-injunction motion,” lawmakers’ lawyers wrote Wednesday morning before the plaintiffs’ filing. “No one other than Plaintiffs have any idea about the contents of this prospective motion, the number of witnesses, including expert witnesses, that will be tendered, or the size and contents of any prospective brief or other prospective supporting evidence.”

“Yet they request that the Court blindly bless an ‘emergency’ briefing and hearing schedule for this unseen motion that only guarantees that no defendant can sufficiently respond and ensures that there is no possible way for the Court (or any defendant) to determine the proper amount of time that defendants should have to respond,” legislators’ court filing continued. “By design or for other reason, Plaintiffs nonsensically demand that briefs opposing a motion not yet filed be submitted one business day — after Thanksgiving weekend — to accommodate an emergency of Plaintiffs’ own creation. Redistricting litigation ‘is not a game of ambush.’ This Motion is nothing more than an invitation to play that game.”

The lawsuit filed Monday challenges two northeastern NC districts spelled out in Senate Bill 758, which creates districts for the state’s 50 state Senate seats.

“Plaintiffs have waited for over a month since the introduction of the S.B. 758 and nearly a month since passage of S.B. 758 to bring this suit and have yet to file their corresponding motion for preliminary injunction,” lawmakers argued. “Plaintiffs wait until the eve of a holiday, and a mere two weeks before candidate filing to cry ‘emergency.’ The situation Plaintiffs find themselves in is entirely of their own making.”

“Granting Plaintiffs’ proposed schedule would itself create a genuine emergency by depriving Legislative Defendants of the right to have a full and fair opportunity to analyze and respond to Plaintiffs yet-to-be-filed Motion for Preliminary Injunction, and if necessary, submit expert rebuttal evidence,” the court filing added. “Nothing in the record, or the law, demands such a deprivation of Legislative Defendants’ due process rights.”

“Delay for delay’s sake is reason enough to deny Plaintiffs’ motion to expedite. But for all the delay in getting this complaint and motion on file, Plaintiffs make this audacious request while leaving unacknowledged how one-sided their request is,” lawmakers argued. “While allowing themselves two additional days to file their preliminary injunction motion, Plaintiffs propose a schedule in which briefs (and, apparently, all evidence) in opposition to their motion will be due on November 27. They fail to mention that the day after they intend to file their motion is Thanksgiving.”

“In short, they have allowed themselves more than four weeks to prepare their preliminary- injunction papers and demand a response in two court days, all while asking the Court to agree to expedite while failing to file the very motion that will form the basis of their request,” lawmakers added. “Imposing a burden on Legislative Defendants and defense counsel is the only purpose that explains this motion.”

Lawmakers described the plaintiffs’ actions as “pure lawfare.”

“The Court should reject this motion for many reasons. The first, and most obvious, is parity. If Plaintiffs and their team of lawyers and experts needed more than a month to prepare preliminary-injunction papers, the defense teams will need even more time to prepare responses (or at least the same amount of time),” lawmakers argued.

The legislative filing notes that plaintiffs’ racial gerrymandering claims are likely to fail.

“Plaintiffs have not provided the Court a polarized-voting analysis, which is essential to their claims. And their odds of success — far from being ‘obvious’ — are very low: the U.S. Supreme Court affirmed a finding by the district court in Cooper v. Harris which found the absence of legally significant racially polarized voting in the 2001 and 2011 versions of Congressional District 1, both of which included all of the North Carolina counties found in Plaintiffs’ proposed illustrative district,” lawmakers’ lawyers wrote.

“Moreover, in the state court case of Common Cause v. Lewis, Plaintiffs’ expert, offered by the same counsel representing plaintiffs here, found there was no legally significant racially polarized voting in 7 of the 8 counties in Plaintiffs proposed illustrative district. Plaintiffs will therefore face steep odds in their efforts to prove legally significant polarized voting in areas of the state where their own expert testified it did not exist just a few years ago,” legislators argued.

Two individual plaintiffs filed suit Monday against the State Board of Elections and state legislative leaders. In a separate emergency motion, the plaintiffs set out a schedule that attracted legislators’ criticism.

“Despite having ample evidence of racially polarized voting and a history of discrimination in the ‘Black Belt counties’ of northeastern North Carolina, and an obligation under the Voting Rights Act to analyze that evidence before drawing districts, the North Carolina General Assembly adopted a Senate plan that unlawfully deprives Black voters of the opportunity to elect candidates of their choice,” according to the complaint filed on behalf of plaintiffs Rodney Pierce and Moses Matthews.

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

Pierce, who is black, is a lifelong resident of Halifax County who teachers social studies in Northampton County Schools. “Defendants have assigned him and all other Halifax County voters to Senate District 2 in the 2023 enacted map, thereby diluting the weight of his vote compared to the vote of white citizens,” according to the complaint. “Senate District 2 in the 2023 enacted map is a majority-white district in which Black voters like Mr. Pierce do not have an opportunity to elect their preferred candidates. A majority-Black district could be drawn incorporating all of Halifax County, including Mr. Pierce’s residence.”

Matthews, who is also black, is a retiree and has voted in Martin County since 1976. “Defendants have assigned him and all other Martin County voters to Senate District 2 in the 2023 enacted map, thereby diluting the weight of his vote compared to the vote of white citizens. Senate District 2 in the 2023 enacted map is a majority-white district in which Black voters like Mr. Matthews do not have an opportunity to elect their preferred candidates,” according to the complaint. “A majority-Black district could be drawn incorporating all of Martin County, including Mr. Matthews’ residence.”

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.

Pierce and Matthews seek an order blocking the state Senate map from taking effect. They want a federal court to order a “remedial plan” with a “minority opportunity district in the Black Belt counties.”

Candidate filing is scheduled to begin Dec. 4 and last through Dec. 15 for the March 2024 primary.