Legislative leaders question plaintiffs’ expert report in Senate redistricting suit

Attorney Phil Strach questions a witness during a trial addressing N.C. election maps. (Image from WRAL.com pool video)

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  • Lawyers for state legislative leaders say the latest court filing from plaintiffs challenging the new state Senate election map "raises more questions than it answers."
  • US District Judge James Dever set Monday as the deadline for responses to the plaintiffs' filing. It's an update from a UCLA professor who appeared to suggest that a black-preferred candidate would win an election in a district targeted in the racial gerrymandering lawsuit.
  • Plaintiffs want Dever to issue an injunction blocking at least two Senate districts in northeastern North Carolina.

The latest court filing from plaintiffs challenging North Carolina’s new state Senate election map “raises more questions than it answers,” according to a response state legislative leaders filed Monday.

US District Judge James Dever set Monday as the deadline for lawmakers to respond to the plaintiffs’ filing. Plaintiffs have asked Dever to issue an injunction blocking at least two Senate districts from being used in the 2024 elections.

The current issue involves an expert report from Matt Barreto. A UCLA professor with a “background in Latino voting patterns,” according to his academic biography, Barreto submitted an expert report supporting the plaintiffs’ argument that two planned Senate districts in northeastern North Carolina would discriminate against black voters.

After Dever questioned one piece of Barreto’s report, plaintiffs submitted a two-page update from Barreto dated Jan. 12. In legal terms, the update is called a “supplemental declaration.”

The original report suggested Barreto found that the “black preferred candidate” would have won a 2022 election in the targeted Senate District 2.

“To be precise, Dr. Barreto’s analysis shows that the 2022 Democratic Senate slate he used would have won 54.1% of the vote in SD2, a robust margin over the 45.9% of the vote share for whatever Republican slate he used,” legislative lawyers wrote Monday. “Because endogenous elections, or elections for the office at issue, are ‘more probative than exogenous elections,’  this evidence — in Plaintiffs’ own sponsored report — that black-preferred candidates can prevail in SD2 defeats Plaintiffs’ ability to make a strong showing of likelihood of success.”

“Dr. Barreto’s supplemental declaration raises more questions than it answers, casts doubt on all Dr. Barreto’s conclusions, and defeats Plaintiffs’ motion,” lawmakers’ response added.

“Far from a typo, Dr. Barreto’s supplemental declaration acknowledges that his original calculations projecting a victory for the black preferred candidate in 2023 Enacted Senate District 2 in Senate contests are correct,” the filing continued. “Perhaps in response to this Court’s questions at the hearing about the legal significance of those calculations, Dr. Barreto uses the rest of his declaration to explain away this finding. What he says makes little sense, and the flaws he announces (if true) cannot be cabined to the portion of his analysis he dislikes.”

Dever had raised questions during a Jan. 10 hearing about Barreto’s finding.

“Doesn’t that dramatically undercut your case?” Dever asked plaintiffs’ attorney Edwin Speas. The judge later suggested the suggestion that a black-preferred candidate would win in Senate District 2 “completely eviscerates” the racial gerrymandering argument against the targeted districts.

Dever’s Jan. 17 order setting the Monday deadline arrived the day after the 4th US Circuit Court of Appeals returned the case to Dever’s Raleigh courtroom.

“In the order accompanying the mandate, the Fourth Circuit observed that issuing ‘’the mandate is not intended to impair the trial court’s own considered review of those filings relevant to plaintiffs’ request for injunctive relief,’” Dever wrote.

“As part of this court’s considered review of the record,” Dever sought a response to the Jan. 12 Barreto supplemental report.

The 4th Circuit granted plaintiffs’ request last week to return the redistricting lawsuit to Dever two weeks earlier than originally planned. Without action from appellate judges, the case would have remained officially with the 4th Circuit until late January.

Plaintiffs have been pushing Dever since November to issue a quick decision about their request for an injunction blocking portions of the Senate map.

Dever spent nearly two hours in his Jan. 10 hearing raising questions about the legal challenge against North Carolina’s new state Senate map.

Lawyers for the plaintiffs — two black voters living in Martin and Halifax counties — emphasized in Dever’s Raleigh 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,” Speas said.

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.

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 Friday.

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.

Dever held his hearing less than a day after the 4th Circuit decided not to step into the dispute.

A unanimous three-judge appellate panel dismissed the plaintiffs’ request to treat Dever’s previous actions in the case as a “constructive denial” of their injunction. The panel 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.

VRA refers to the Voting Rights Act. VRA serves as the basis for the racial gerrymandering claims in the lawsuit against the Senate map.

The suit, Pierce v. North Carolina State Board of Elections, challenges the Senate map’s Districts 1 and 2 in northeastern North Carolina. Senate Bill 758 is the legislation that set new Senate map boundaries.

“In 2016, a three-judge district court examined this same region of North Carolina and found no evidence of racially polarized voting,” Dever wrote in an order. “In fact, according to the three-judge court that reviewed the issue of racially polarized voting, ‘’precisely the opposite occurred … [and] significant crossover voting by white voters supported the African-American candidate.’”

“In light of these disputes, and now that the motion is fully briefed, the court finds that a hearing on plaintiffs’ motion for a preliminary injunction would aid the court’s decisionmaking process,” Dever added.

Dever referenced plaintiffs’ repeated attempts to compress their case’s timeline after filing suit on Nov. 20, the Monday of Thanksgiving week.

“The United States District Court for the Eastern District of North Carolina is the busiest United States District Court in the Fourth Circuit and the fourth-busiest United States District Court in the United States by weighted filings per judgeship,” Dever explained. “Each judge on this court has over 1,000 cases. The court declines plaintiffs’ invitation to rush to a decision on the merits by December 28, 2023. Indeed, plaintiffs’ motion for a preliminary injunction was not fully briefed until 9:26 p.m. on December 26, 2023.”

“Instead, the court will employ a judicious deliberative process, including holding a hearing on the plaintiffs’ motion for a preliminary injunction,” Dever wrote. “The hearing will permit the court to hear from the advocates and to have the advocates answer the court’s questions after the court has had sufficient time to review the 835 pages of filings concerning plaintiffs’ motion for a preliminary injunction.”

Critics of the Senate plan contend that the two challenged districts run afoul of the federal Voting Rights Act because of racial gerrymandering.

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 Friday, 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.

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.