Republican leaders of North Carolina’s General Assembly oppose a request that the full 4th US Circuit Court of Appeals consider a redistricting dispute over two state Senate districts in northeastern North Carolina. Plaintiffs requested the “en banc” hearing last week.
A federal trial judge upheld the districts on Sept. 30. He rejected the plaintiffs’ arguments that the districts violated federal restrictions against racial gerrymandering.
Legislative leaders filed a response Tuesday opposing the request to bypass the three-judge panel customarily used for 4th Circuit appeals. In a separate court filing, the State Board of Elections took no position on the plaintiffs’ request. Elections officials instead pointed out the challenges the lawsuit creates for the state’s 2026 election calendar.
“It would be difficult to imagine an appeal less suited for initial hearing en banc than this one,” legislative leaders’ lawyers wrote. “[M]ultiple factors reveal this appeal to be an all-around bad vehicle for initial hearing en banc.”
“First, Plaintiffs do not attempt to meet the exacting standards governing their petition or explain why a panel cannot resolve this case,” the court filing continued. “Second, the same two state senate districts at issue here are challenged on the same grounds before a three-judge district court that could rule at any time and either afford all relief Plaintiffs seek or else further confirm the districts do not violate Section 2” of the federal Voting Rights Act.
A three-judge panel has yet to issue a ruling in two separate federal redistricting lawsuits that were consolidated for trial earlier this year. The losing party in that case could appeal directly to the US Supreme Court, legislative lawyers wrote.
“Third, the Supreme Court itself is currently reexamining when, if ever, a government actor may intentionally create a majority-minority district,” the court filing explained. The Louisiana v. Callais case is scheduled for oral argument at the US Supreme Court Wednesday. It addresses redistricting issues that cover some of the same ground as the North Carolina case.
“Where the decision below is alleged to conflict with Supreme Court precedent — not this [4th Circuit] Court’s precedent — this Court should not leap ahead of the Supreme Court in determining what its precedent holds,” legislative leaders’ lawyers argued.
“Fourth, this case involves a large record and numerous contested issues, most of which are questions of fact, that are not properly packaged for initial hearing en banc. At minimum, the case needs the narrowing and clarification that panel review is designed to provide,” the court filing added.
“Fifth, it is not possible for an en banc appeal to be decided, for further necessary steps to be taken on any remand, and for a new redistricting plan to be configured in time for the 2026 elections. Initial hearing en banc would therefore be futile,” the legislative leaders’ court filing argued.
The State Board of Elections spelled out details of the upcoming election schedule in its court filing.
Candidate filing is scheduled to begin at noon Dec. 1. Elections officials plan to distribute absentee ballots on Jan. 12, with in-person early voting starting Feb. 12.
Depending on the timing of a court order calling for new election maps, primary elections in affected races could be delayed from March 3 to May 12.
“Holding delayed elections is not without costs, most of which are borne by the county boards of elections,” the state elections board’s lawyers wrote. “These costs can be particularly significant if a court-ordered remedy requires the State and county boards to hold a special election that otherwise would not occur. However, moving the date for a limited number of contests is administratively feasible, and has been done in North Carolina in recent years.
US District Judge James Dever ruled on Sept. 30 that the North Carolina General Assembly did not violate constitutional restrictions against racial gerrymandering when it drew two challenged state Senate districts in northeastern North Carolina.
Plaintiffs Rodney Pierce and Moses Matthews issued a notice of appeal the following day. The 4th Circuit normally would assign a three-judge panel to hear the case. Pierce and Matthews filed a petition for an en banc hearing involving all eligible 4th Circuit judges.
Pierce is a Democratic state representative who was elected to office after filing the suit in 2023. Republican state legislative leaders have defended the challenged maps against the lawsuit in court.
Appellate judges appointed by Democratic presidents outnumber those appointed by Republicans on the 4th Circuit.
“This exceptionally important and time-sensitive appeal presents a paradigmatic occasion for expedited initial hearing en banc under Federal Rule of Appellate Procedure 40(g),” the plaintiffs’ lawyers wrote in the 4th Circuit petition.
The state Senate map split northeastern North Carolina’s “Black Belt” of voters, according to the court filing. “It cracked the Black population across Senate Districts 1 and 2, leaving each with roughly 30% Black voting-age population.”
“Yet the district court denied relief,” the plaintiffs’ lawyers wrote. Dever’s “radical” ruling would “gut” Section 2 of the federal Voting Rights Act.
“Time is short. Candidate filing for the 2026 primaries begins December 1, 2025. Only immediate en banc review can ensure uniformity with Supreme Court precedent and prevent an obvious, highly consequential Section 2 violation from persisting through another election cycle,” the petition continued.
Dever found “that plaintiffs have failed to prove their Section 2 claim,” he wrote in a 126-page order. “Thus, the General Assembly need not use the odious practice of sorting voters based on race or the ‘politics of second best’ to create a majority-black Senate district in northeast North Carolina.”
The trial judge had conducted a five-day trial in the case in February.
“As the Supreme Court observed in De Grandy 31 years ago, ‘for all the virtues of majority-minority districts as remedial devices, they rely on a quintessentially race-conscious calculus aptly described as the politics of second best,’” Dever wrote, citing the 1994 court precedent Johnson v. DeGrandy.
The order also referenced a 1986 precedent. “’If the lesson of [Thomburg v.] Gingles … is that society’s racial and ethnic cleavages sometimes necessitates majority-minority districts to ensure equal political and electoral opportunity, that should not obscure the fact that there are communities in which minority citizens are able to form coalitions with voters from other racial and ethnic groups, having no need to be a majority within a single district in order to elect candidates of their choice,’” Dever wrote.
“The record in this case demonstrates that the communities in northeast North Carolina at issue in this case are such communities,” the judge explained. “Likewise, communities throughout North Carolina are such communities.”
“It is not 1965 or 1982 in North Carolina. It is 2025,” he wrote. “Due in part to societal progress on race and due in part to the VRA, North Carolina is a very different state politically and socially than it was in 1965 or 1982. Black voters in northeast North Carolina and throughout North Carolina have elected candidates of their choice (both white and black) with remarkable frequency and success for decades. Black elected officials in North Carolina are at or near-parity with their share of the statewide population.”
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