Federal judges sound hesitant to overturn ruling on North Carolina Senate redistricting

An appeals court on Thursday weighed a plea to halt the use of two new North Carolina state Senate districts starting this year on arguments the boundaries approved by the Republican-controlled legislature illegally weaken the ability of Black voters in a large region to elect their favored candidate.

But a majority on the three-judge panel of the 4th U.S. Circuit Court of Appeals that heard oral arguments sounded hesitant to reverse last month's refusal by U.S. District Judge James Dever to issue a preliminary injunction and order new lines. Dever ruled in part that voting was not racially polarized at legally significant levels to justify new districts.

There are no March 5 primaries for the 1st and 2nd Senate Districts being challenged, and an attorney for two Black voters who sued in November said no other districts would have to be disturbed if the panel sides with her clients. Election officials have said they could administer primary elections for retooled districts in mid-May, but legal resolution would have to come quickly. The panel didn't say when they would rule.

But lawyers for the Republican legislative leaders helping defend the boundaries have said redistricting rules under the state constitution would force a statewide redraw of the Senate map that would require new candidate filing and ballots. Courts often cite a legal principle discouraging voting rule changes close to an election to avoid confusion.

Circuit Judge J. Harvie Wilkinson mentioned the state's abundance of redistricting litigation — almost continuous since the early 2010s — as something to consider when examining Dever's findings and conclusions. And at least three other redistricting lawsuits challenging congressional and legislative maps drawn in October for use through the 2030 elections are pending.

“At some point, doesn’t North Carolina deserve a certain amount of stability in its electoral system, so that candidates will know what district they can run (in)?” asked Wilkinson, who was nominated to the Richmond, Virginia, court by President Ronald Reagan. He also said such decisions should be determined in light of successes for Black electoral candidates in the state since passage of the U.S. Voting Rights Act in the 1960s.

But Elizabeth Theodore, the plaintiffs’ lawyer, said what her clients consider a clear violation of the Voting Rights Act can’t be ignored. The General Assembly broke up a politically cohesive unit known as the “Black Belt” region when it redrew the two northeastern districts.

“They literally take the Black Belt and they slice it down the middle. I mean, it’s really reprehensible,” Theodore said during online arguments. “You can’t trade off the rights of Black voters in these districts because of the possibility that a Black voter somewhere else in the state may have an opportunity to elect a candidate of choice.”

Theodore's clients have proposed remedial districts, one of which would have a Black voting age population of nearly 50% or slightly above it, depending on the counting method.

Wilkinson and Circuit Judge Allison Rushing, a nominee of President Donald Trump, sounded skeptical about findings from an expert that the plaintiffs used to build their case that Black voters would be unable to elected their preferred candidates under the new districts. Dever had expressed similar doubt.

Circuit Judge Roger Gregory pushed back against arguments offered by Phil Strach, an attorney for the GOP legislators, including that it was already too late in the 2024 election cycle to act.

A federal court is supposed to "protect statutes that are meant to help protect the rights many times of the dispossessed and those who are least able to protect themselves,” said Gregory, who was first appointed to the court by President Bill Clinton.

Strach responded: “And the court also has an obligation to protect voters from disruption and confusion.”

Republicans currently hold 30 of the Senate’s 50 seats, the minimum required to override vetoes if the GOP caucus stays united. The two current senators representing the region are white Republicans. A ruling ultimately favoring the plaintiffs likely would ensure a Democrat winning one of the seats, which could help break that GOP veto-proof majority.