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Appeals Court rejects Senate election dispute, sets no deadline for trial court action



A federal Appeals Court has dismissed an appeal from plaintiffs challenging North Carolina’s new state Senate election map. The decision Tuesday leaves the case with a trial judge in Raleigh.


The 4th US Circuit Court of Appeals rejected plaintiffs’ request to set a deadline for the trial court to issue a ruling in the case.


US District Judge James Dever is scheduled to hold a hearing on the matter Wednesday morning. He issued an order Tuesday confirming that the 10 a.m. hearing would proceed as scheduled.


Judges Harvie Wilkinson, Roger Gregory, and Allison Jones Rushing agreed to dismiss the appeal. Wilkinson and Rushing were appointed by Republican presidents. Gregory was appointed by a Democrat.


“Upon consideration of appellee’s motion to dismiss for lack of appellate jurisdiction, the court grants the motion,” according to the 4th Circuit order. “We know the trial court will be mindful of the time-sensitive nature of the VRA suits as it proceeds.”


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


Plaintiffs had asked the Appeals Court to set a Jan. 15 deadline for Dever to issue a decision about an injunction in the case. Tuesday’s order only alludes to the case’s timetable with the reference to being “mindful of the time-sensitive nature” of the complaint.


The proposed Jan. 15 deadline appeared in a court document plaintiffs filed Monday. The document responded to state legislators’ request that the 4th Circuit dismiss the appeal.

The State Board of Elections filed a separate document Monday taking no stance on legislators’ request.


Dever rejected the plaintiffs’ request to issue or reject an injunction by Dec. 28. Dever instead scheduled Wednesday’s hearing.


“This Court has jurisdiction to review a district court’s denial of a preliminary injunction, … and the district court’s unreasonable delay in deciding Plaintiffs’ preliminary injunction motion here constitutes a constructive denial for multiple reasons,” plaintiffs’ lawyers wrote to the 4th Circuit. “Alternatively, if the Court declines to hear this appeal now, Plaintiffs respectfully request that the Court ask the district court to decide Plaintiffs’ preliminary injunction by January 15 and order that briefing in this Court be automatically expedited if any party appeals by January 16. This will ensure that either party has the opportunity to obtain appellate review in advance of any changes needed for the 2024 elections.”


Top legislative leaders urged the Appeals Court Friday to dismiss the appeal. Lawmakers filed their motion roughly three hours after the plaintiffs blamed Dever for delays in the case.

“[T]his appeal fails for lack of an appealable order,” lawmakers’ lawyers wrote in their motion to dismiss the appeal. “Plaintiffs noticed their appeal from scheduling orders related to a preliminary-injunction motion that has not been resolved. This Court has jurisdiction over interlocutory orders ‘granting, continuing, modifying, refusing or dissolving injunctions, or refusing to dissolve or modify injunctions,’ but not orders scheduling proceedings related to injunctions. Plaintiffs’ efforts to work around that doctrine do not work.”


“[T]he district court here did not refuse to rule,” legislative lawyers added. “It set an argument date for January 10, 2024, ‘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.’ That is no refusal.”


A document plaintiffs filed Friday spelled out critics’ concerns about Dever’s actions since late November. Dever had refused to grant the plaintiffs’ requests for quick action around the Thanksgiving and Christmas holidays. Plaintiffs labeled the judge’s decision “constructive denial” of their request for a compressed courtroom schedule.


“[T]his appeal is proper because the district court constructively denied Plaintiffs’ preliminary injunction motion,” plaintiffs’ lawyers wrote. “To begin with, this Court’s precedent establishes that a district court’s ‘unreasonable or inexplicable delay’ in deciding a time-sensitive motion constitutes an immediately appealable constructive denial if it is ‘tantamount to a denial.’”

Critics of the Senate map argued that they originally hoped to have the case resolved in time to have no impact on the March 5 primary.


“The district court has already constructively denied that relief by refusing to expedite preliminary injunction proceedings, granting Legislative Defendants an opposed extension of time to oppose the motion, and setting a preliminary injunction hearing for January 10,” plaintiffs’ lawyers argued. “A January 10 hearing is seven weeks after Plaintiffs filed their motion, and importantly, it is too late to implement remedial districts in time for the March 5 primaries even if the court decided the motion at the hearing.”


“The district court knew that its failure to decide the preliminary injunction motion would make it impossible to afford the relief Plaintiffs originally sought,” plaintiffs’ lawyers wrote, referring to Dever as “the district court.”


The lawsuit challenges two northeastern North Carolina Senate districts. An emergency injunction would have prevented state election officials from including elections for either district on primary election ballots.


Correspondence between lawyers for the plaintiffs and the State Board of Elections revealed that neither district faces a contested primary this year.   


“[B]ecause there will be no primaries in those two districts, the ballots mailed to voters in those districts starting January 19 will not identify any Senate candidates. In light of this new information, the State Board’s counsel represented — and Plaintiffs agree — that the requested limited injunction is moot,” lawyers for the Senate map’s opponents wrote. “Plaintiffs sought only to enjoin preparations for primary elections in the two challenged districts, including to stop the mailing of ballots on January 19 listing primary candidates for those districts. That is not necessary now.”


While the plaintiffs have abandoned a request for an emergency injunction, they still hope to have the 4th Circuit issue a ruling in their appeal by Feb. 2. “That motion remains live and the relief requested remains urgent.”


Republican legislative leaders filed documents at the 4th Circuit objecting to both a proposed injunction and an expedited schedule for an appellate ruling.


“After the district court declined Plaintiffs’ demand to turn this proceeding into ‘a game of ambush’ by resolving it over Thanksgiving weekend, and after it scheduled a hearing for January 10, 2024, on the grounds that Plaintiffs’ entitlement to relief ‘is not as clear as plaintiffs suggest’ and that it needs ‘to hear from the advocates and to have advocates answer the court’s questions,’ Plaintiffs declared defeat and refiled their preliminary-injunction motion with this Court, without even awaiting a ruling,” legislators’ lawyers wrote.

“The Court should have no trouble rejecting that maneuver. No appealable order supports this appeal, and there is no right to an appellate forum just because a district court is somewhat skeptical of a position, because litigants would rather not have to answer its questions, or because proceedings are slightly more drawn out than a plaintiff would like,” lawmakers’ court filing continued.


Dever’s Dec. 29 order in the case explained his decision to schedule a hearing.

“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.


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 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.

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