Plaintiffs appeal after judge sets Jan. 10 hearing in state Senate redistricting dispute

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

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  • Plaintiffs have appealed after a federal judge set a Jan. 10 hearing in a lawsuit challenging North Carolina's new state Senate election map.
  • Critics of the Senate map had asked US District Judge James Dever to issue a decision Thursday about their request for an injunction against the Senate map.
  • Dever issued an order Friday explaining that a hearing "would aid the court's decisionmaking process."

Plaintiffs challenging North Carolina’s new state Senate election map are asking a federal Appeals Court to step into the legal dispute. They filed a notice of appeal Friday after a federal judge set a Jan. 10 hearing in the case.

The Senate map’s challengers had asked US District Judge James Dever for a decision Thursday about their request for an injunction against the Senate map. The judge instead acted Friday morning. He issued an order setting a hearing in 12 days at the federal courthouse in Raleigh.

Dever’s decision to schedule a hearing next month amounted to a “constructive denial” of the plaintiffs’ request, according to the appeal notice.

The one-paragraph notice cited a 2020 4th US Circuit Court of Appeals case involving then-President Donald Trump. “[A] district court’s ‘unreasonable or inexplicable delay’ in ruling on a time-sensitive motion can be ‘tantamount to a denial’ that can be appealed,” according to the notice.

Plaintiffs also cited a 1996 case from the 7th Circuit. “A showing of unjustifiable delay coupled with irreparable injury if an immediate appeal is not allowed is enough to make a constructive denial appealable, if a formal denial would be.”

Dever’s order explained his decision to schedule a hearing in 12 days.

“The court is reviewing plaintiffs’ motion, plaintiffs’ exhibits, the legislative defendants’ response and exhibits, the Board defendants’ schedule, and plaintiffs’ reply. … Whether plaintiffs are likely to succeed on the merits and to establish the other three requirements for a preliminary injunction is not as clear as plaintiffs suggest,” Dever wrote.

The judge cited a dispute between the map’s challengers and state legislative leaders over whether plaintiffs can prove that the Senate map features unconstitutional racial gerrymandering.

“The parties hotly dispute whether plaintiffs’ minority group is sufficiently large and geographically compact to constitute a majority in a reasonably configured district, particularly in light of the North Carolina Constitution’s Whole County Provision as interpreted by the Supreme Court of the United States and the Supreme Court of North Carolina,” Dever wrote. “The parties also hotly dispute whether racially polarized voting exists in the counties in Senate District 1 and Senate District 2 in SB 758.”

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 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.

“Because the VRA violation here is so extreme and obvious, and the remedy so simple, there is no justifiable basis for denying a preliminary injunction,” according to Tuesday’s court filing. “Black voters in the Black Belt counties should not be forced to vote in another election that denies them the opportunity to elected [sic] their preferred Senate candidates. In light of the Board’s submission, Plaintiffs request that this Court issue its decision by December 28 to facilitate relief without any need to move the March primary.”

The court filing seeking a Dec. 28 decision arrived four days after state legislative leaders predicted that an injunction could lead to an “election meltdown.”

“The only thing ‘egregious’ about this case … is the racial gerrymandering that would result if the Court accepts Plaintiffs’ erroneous position,” wrote lawyers representing state Senate Leader Phil Berger, R-Rockingham, and House Speaker Tim Moore, R-Cleveland. “North Carolina redistricting plans have experienced virtually constant litigation for the past decade, and the one ‘clear-cut’ proposition … that has emerged is that voting in the State is not racially polarized at legally significant levels.”

“[E]vidence and findings in recent state-court litigation have consistently confirmed that no majority-minority district is necessary or justified under present electoral conditions,” lawmakers’ court filing continued. “Plaintiffs make a familiar error in presenting evidence of ‘statistically significant’ bloc voting, not legally significant bloc voting, and their demand to dismantle the State’s formulaic county groupings for predominantly racial reasons has no basis in law or fact.”

Lawmakers group counties together during redistricting to create election maps that comply with previous court orders and provisions of the state and federal constitutions. Those groupings do not run afoul of federal Voting Rights Act requirements, lawmakers argued.

“Simply stated, [Section] 2 of the Voting Rights Act does not compel the race-based remedy Plaintiffs seek,” legislators’ lawyers wrote.

“In all events, no emergency injunction can issue because the candidate-filing period has come and gone, absentee voting begins on January 19, and federal intrusion into the election process is unwarranted,” the court filing continued. “There is no time to effectuate the relief Plaintiffs demand, which is certainly not ‘limited and straightforward.’ Plaintiffs promise that their proposed remedy will leave ‘all other districts in the 2023 enacted map wholly untouched,’ and that only a handful of districts would need reconfiguring. But their majority-minority illustrative district resets the State’s county groupings, which would send shock waves across the plan and potentially mandate that many Senate districts be redrawn.”

“An injunction now would risk an election meltdown,” lawmakers’ lawyers argued. “The Court should deny the motion without argument.”

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 has not addressed Cooper and Stein’s request.

The judge issued a Nov. 27 order criticizing the plaintiffs’ earlier attempt to compress the case’s timeline.

When plaintiffs filed suit on Nov. 20 objecting to the new map for North Carolina’s 50 state Senate districts, they followed up with a motion for a preliminary injunction to block the map. That motion arrived on Nov. 22, the day before Thanksgiving.

Plaintiffs also set out a proposed timeline that would have forced the State Board of Elections and legislative leaders to respond to the requested injunction on the Monday after the holiday. The timeline called for a hearing the following Wednesday and a decision on the injunction two days later.

Dever noted in his order that the General Assembly enacted the new state Senate map through Senate Bill 758 on Oct. 25.

“Plaintiffs do not explain why they waited 26 days to file this action and 28 days to move for a pre1iminary injunction,” he wrote. “In so waiting, plaintiffs belie their ‘claim that there is an urgent need for speedy action to protect [their] rights’ or that their entitlement to a preliminary injunction is clear.”

“Moreover, plaintiffs fail to justify giving defendants one business day to respond to plaintiffs’ motion for a preliminary injunction, which plaintiffs waited to file until the day before Thanksgiving,” Dever added. “Thus, plaintiffs ask the court to expedite defendants’ response to a motion before the court or defendants know the contents of that motion.”

Dever noted that the motion filed the day before Thanksgiving included a “25-page memorandum in support and five exhibits totaling over 400 pages.”

“Furthermore, plaintiffs’ request completely ignores that their case is not the only case on the court’s docket and that plaintiffs do not set this court’s schedule for holding hearings or deciding motions,” the judge wrote. “This court has over 1,000 cases. For example, this week the court will hold thirteen sentencing hearings, three revocation hearings, a civil bench trial, and two pretrial conferences in criminal cases set for jury trial during the weeks of December 4, 2023, and December 11, 2023. The court also will resolve countless motions in numerous other cases.”

The plaintiffs are working with Washington-based attorneys from Arnold & Porter Kay Scholer, veterans of North Carolina redistricting battles. They are also working with Edwin 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.