Trial in state Senate redistricting dispute would start no earlier than December

A trial in a federal lawsuit challenging North Carolina’s new state Senate election map will not take place before the November general election. The earliest possible trial date is Dec. 2, based on proposals submitted in federal court this week.

Meanwhile, a hearing is now scheduled in May for a separate election map lawsuit in state court. That suit, led by former state Supreme Court Justice Bob Orr, seeks to have the courts declare a state constitutional right to “fair” elections.

In the federal case, critics and defenders of two state Senate districts in northeastern North Carolina submitted competing schedules Monday for a trial in their dispute before US District Judge James Dever. Those schedules arrived four days after the 4th US Circuit Court of Appeals refused to grant an injunction blocking the Senate map.

Plaintiffs challenging the map now propose a Dec. 2 trial date. State legislative leaders defending the map prefer a trial starting on Feb. 3, 2025. Both groups expect the trial to last no more than five days.

In a joint court filing, lawyers for the competing parties indicate they “met and conferred and could not agree” on a schedule.

“Legislative Defendants believe that Plaintiffs’ proposed December 2, 2024, trial date would not provide sufficient time for the parties’ experts to analyze the final election results from the November 2024 elections — the official certified results will not be final until after the Statewide canvass, which is most likely to be held on or about November 26, 2024,” according to the joint filing.

“Moreover, Legislative Defendants propose a trial date in the first week February 2025 — approximately a year before primaries for the 2026 elections,” the filing continued.

The same document also explains why the plaintiffs seek a trial date “no later than December 2024.”

“It is unnecessary and prejudicial to push out the trial date to February 2025 to allow for a second round of full blown expert reports and depositions,” according to the map critics’ lawyers. “Given the realities of this litigation, potential appeals, and the need for remedial proceedings if Plaintiffs are successful, Plaintiffs anticipate that – under the schedule Legislative Defendants propose – Legislative Defendants may eventually argue that there is not enough time to afford relief in advance of 2026.”

The State Board of Elections is a defendant in the lawsuit. The elections board defendants “have no objection” to either proposed schedule.

The 4th Circuit split 2-1 in deciding not to grant an injunction in the federal lawsuit challenging North Carolina’s new state Senate election map. The Appeals Court order upheld Dever’s Jan. 26 ruling rejecting an injunction. Plaintiffs wanted to block the use of two state Senate districts in northeastern North Carolina for this year’s election.

“The denial of preliminary relief is just that: preliminary,” wrote Judge Allison Jones Rushing. “It may be that with discovery and further factual development, Plaintiffs can prove that these two Senate districts violate Section 2 of the [Voting Rights Act] and they are entitled to a majority-minority district in northeastern North Carolina.”

“But the standard for winning relief before trial and obtaining concomitant federal court interference with state redistricting decisions while elections are underway is high indeed, and Plaintiffs have not satisfied it with the record they have developed thus far,” Rushing added.

Judge Harvie Wilkinson joined Rushing’s decision. Republican presidents appointed both judges. Judge Roger Gregory, originally appointed by a Democrat, dissented.

“In October of last year, the North Carolina General Assembly enacted a map that
cracked the state’s Black Belt right down the middle,” Gregory wrote. “Yet the district court concluded that this new map was unlikely to dilute Black voters’ power. In doing so, it misconstrued the standard Appellants must meet … and improperly concluded that Appellants had to present a specific type of analysis that neither this Court nor the Supreme Court has ever required.”

Plaintiffs Rodney Pierce and Moses Matthews are black voters who live in northeastern North Carolina. Pierce is now the Democratic nominee to serve in the state House of Representatives in District 27. Pierce knocked off incumbent Michael Wray in the March 5 primary election. Pierce faces no opposition in November.

Fair elections

In the state case, a three-judge panel has scheduled a May 22 motion hearing in Orr’s “fair” elections lawsuit. The panel features Superior Court Judges Jeffery Foster of Pitt County, Angela Puckett of Stokes County, and Ashley Gore of Columbus County. All three judges are Republicans.

Orr was a Republican when he served on the state Supreme Court. He is now unaffiliated.

North Carolina’s top Republican legislative leaders filed a motion on March 6 asking the three-judge panel to throw out Orr’s suit aiming to establish a state constitutional right to “fair” elections. Orr filed the suit in January.

“Plaintiffs’ Complaint should be dismissed with prejudice for lack of subject matter jurisdiction and failure to state a claim upon which relief can be granted as Plaintiffs’ Claim for Relief is non-justiciable,” according to the motion from lawyers representing top Republicans in the General Assembly.

A nonjusticiable claim cannot be decided by a court or legal principles. Dismissing the case “with prejudice” would prevent Orr from filing the same suit again.

Orr is asking North Carolina’s courts to declare that the state’s people have a constitutional right to “fair” elections. He filed suit in Wake County Superior Court in January on behalf of nine Democrats and two unaffiliated voters. Among the plaintiffs are former UNC System President Tom Ross and former Democratic state Sen. Allen Wellons of Johnston County.

The complaint targets North Carolina’s election maps as violating the “fair” elections standard. A news release from Orr described the case as the “first lawsuit in state history challenging the legitimacy of legislatively created election districts for violating voters’ constitutional right to fair elections.” 

“This case presents a major question of first impression for the courts of this State impacting the very foundation of our constitutional Republic’s underlying principles of democracy,” according to the complaint. “The issues presented deal with elections, the vehicle by which the citizens of the State, authorized to vote in those discrete elections, choose their officials to administer the government created by the people through their state constitution and the U.S. Constitution.”

“Plaintiffs contend that the right to ‘fair’ elections is an unenumerated right reserved by the people and fundamental to the very concept of elections and the underpinnings of democracy,” the lawsuit added. “Without ‘fair’ elections, the framework of our government would rest not on principle and the will of the people, but instead, on partisan politics, exercised not by political parties or particular entities, but by the heavy hand of government itself, in this case the General Assembly.”

The lawsuit targets new Congressional Districts 6, 13, and 14, state Senate District 7, and state House District 105. 

State Supreme Court Chief Justice Paul Newby appointed the three-judge panel hearing the case.

Newby wrote an April 2023 opinion suggesting that state courts could not develop a workable test for determining the “fairness” of election maps.

Orr distinguished his new lawsuit from the earlier case that prompted Newby’s “fairness” comment. In a video news conference, Orr compared the redistricting disputes to a college basketball game between the University of North Carolina and Duke.

“What if the General Assembly passed a law so that all state-supported schools start basketball games with a 15-point lead? I don’t think anybody would have any problem — probably even Carolina fans — saying, ‘Well, that’s unfair.’”

“Essentially, that’s what this legislature and prior legislatures from years ago have done,” Orr said. “They have sort of stacked the deck with voters that they think will be … determined to vote for their particular candidates. Thus, you lose any sense of fairness.”

The suit seeks a process for drawing election districts that’s “as politically neutral as possible,” Orr said. “I will admit that if there was an independent redistricting process that created the districts that we’re challenging, I don’t think we would have a constitutional challenge — even if they looked essentially the same.”

“The distinction here is where government — the all-powerful government — decides, ‘We’re going to cook the books,’” he added. The lawsuit asks for challenged districts to be redrawn in a “nonpolitical way.”

No Republicans signed onto the suit as plaintiffs. “This is not a partisan lawsuit — not intended to be a partisan lawsuit,” Orr said in the video conference. “This is a good-government lawsuit, and one that I think is extraordinarily important to the long-term well-being of this state.”

Orr’s lawsuit is the fourth filed against North Carolina’s new statewide election maps. It is the only case filed to date in state court.

The post Trial in state Senate redistricting dispute would start no earlier than December first appeared on Carolina Journal.


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