State Senate election fight officially back before Dever

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

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  • The 4th US Circuit Court of Appeals has agreed to cut roughly two weeks off the timeline for returning a redistricting lawsuit to a federal judge's Raleigh courtroom.
  • The appellate panel granted plaintiffs' request to speed up the court's official mandate. Without that mandate, US District Judge James Dever could not take action on the plaintiffs' request for an injunction against a new state Senate map.
  • Top legislative leaders had filed paperwork Tuesday urging the Appeals Court not to shorten the timeline for issuing its mandate.

A federal Appeals Court granted plaintiffs’ request Tuesday to return a redistricting lawsuit to a Raleigh-based federal judge. Without action from appellate judges, the case challenging North Carolina’s new state Senate election map would have remained officially with appellate judges until late January.

A three-judge panel of the 4th US Circuit Court of Appeals issued its decision roughly six hours after state legislative leaders objected to the compressed timeline.

Appellate judges granted the plaintiffs’ request to issue the mandate in the case immediately. That decision cut roughly two weeks off of the timeline for the case to return from the 4th Circuit to US District Judge James Dever’s courtroom.

Plaintiffs hope Dever will act quickly on their request for an injunction against portions of the Senate map.

“We issue the mandate forthwith so as not to obstruct the district court’s proceedings and because we recognize the time-sensitive nature of these proceedings,” according to the 4th Circuit order. “Issuance of the mandate is not intended to impair the trial court’s own considered review of those filings relevant to plaintiffs’ request for injunctive relief.”

The order came from the same panel that dismissed the plaintiffs’ appeal in the case on Jan. 9: Judges Harvie Wilkinson, Roger Gregory, and Allison Jones Rushing. Republican presidents appointed Wilkinson and Rushing. A Democrat appointed Gregory.

Earlier in the day, top legislative leaders had urged the Appeals Court not to speed up the timetable for issuing its mandate.

“The Court should deny Plaintiffs’ motion for immediate return of the mandate,” lawmakers’ lawyers wrote Tuesday. “This was a baseless appeal when it was filed, and the thin reed on which it rested collapsed when Plaintiffs learned a key premise to their theory of appellate jurisdiction by constructive denial was erroneous.”

“Yet they continued to prosecute the appeal anyway, until this Court granted Legislative Defendants’ motion to dismiss,” legislative lawyers continued. “Now, Plaintiffs ask the Court to free them from the natural and probable consequence of their imprudent decisions. The Court should decline that invitation.”

“Granting Plaintiffs’ motion would incentivize more ploys like this one,” lawmakers’ lawyers warned. “Plaintiffs knew or should have known that this unsupportable appeal was a gamble, as it deprived the district court of jurisdiction to afford the relief they insist is their clear entitlement. A ruling returning the mandate on Plaintiffs’ preferred timeline would incentivize future gamesmanship by establishing the principle that gambles like this one carry no consequences.”

“Because that is no way to run affairs of this Circuit, the Court should deny Plaintiffs’ motion,” the court filing continued.

Dever spent nearly two hours in a hearing last week 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,” 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 Jan. 10 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.

Plaintiffs responded that the data point might have involved a typo. If not, 30 other election results linked to the challenged district showed Republicans winning every time.

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 are scheduled to mail 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.

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. During last week’s hearing, he indicated he had read the documents. He said the case had been appealed to the 4th Circuit before he had a chance to rule on the issue.

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.