Judge pokes hole in redistricting challengers' arguments

Published February 8, 2024

By Mitch Kokai

Plaintiffs challenging North Carolina’s new state Senate election map want federal courts to mandate at least one new district based on race.

A recent ruling from US District Judge James Dever explains why that plan likely runs afoul of the Constitution.

Dever knows more than most judges about redistricting. Before donning his robe in 2005, his law practice involved helping Republicans fight gerrymandered election maps drawn by Democratic legislators.

In a 69-page order last month, Dever demonstrated that he has continued to monitor developments in redistricting law closely over the past two decades.

The order opened with a warning.

“Racial classifications with respect to voting carry particular dangers,” Dever wrote, quoting the US Supreme Court’s 1993 decision in Shaw v. Reno. “Racial gerrymandering, even for remedial purposes, may balkanize us into competing racial factions. “

“[I]t threatens to carry us further from the goal of a political system in which race no longer matters — a goal that the Fourteenth and Fifteenth Amendments embody, and to which the Nation continues to aspire,” Dever’s quotation continued.

The judge then turned to the current case, Pierce v. North Carolina State Board of Elections. The suit challenges two state Senate districts drawn in northeastern North Carolina. Two black voters working with Democrat-aligned redistricting lawyers contend that the districts violate the federal Voting Rights Act.

“This case does not involve the North Carolina General Assembly engaging in race-based districting,” Dever wrote. “Indeed, the record demonstrates that when the General Assembly created the Senate districts in North Carolina Senate Bill 758 in October 2023 for use in the 2024 elections, the General Assembly did not have racial data in the computer.”

Lawmakers did not factor race into their maps, “in part, because federal litigation from 2011 to 2016 helped to show that there was not legally significant racially polarized voting in North Carolina, including in the counties in northeast North Carolina at issue in this case.”

Without evidence of racially polarized voting, courts have said election mapmakers cannot use race.

Dever explained that the Pierce case made an unusual request. “This case involves two plaintiffs who contend that the General Assembly violated Section 2 of the Voting Rights Act of 1965 by not engaging in race-based districting and not creating a racially gerrymandered majority-black Senate district in northeast North Carolina.”

Yet “the Supreme Court has described ‘sort[ing] voters on the basis of race’ as ‘odious,’” Dever wrote.

The judge refused to grant plaintiffs’ request for the “extraordinary remedy” of an injunction blocking challenged portions of the Senate map for 2024 elections. His decision relied partly on the Purcell principle, which admonishes federal courts from interfering in an ongoing election.

But Dever’s concerns extended beyond the election calendar. He cited “insufficient evidence” that federal law requires the race-based Senate district the lawsuit demanded.

Previous court rulings have said that the Voting Rights Act does not require ”race-based” districts unless lawmakers have “a strong basis in evidence” for those districts. “Without a contemporaneous strong basis in evidence in 2023 that Section 2 required the General Assembly to create a VRA district by grouping citizens by race in order to form a majority-black Senate district, the General Assembly would have violated the Fourteenth Amendment,” Dever wrote.

The judge pointed out that Republican lawmakers had run afoul of federal courts in similar redistricting disputes within the past decade. He cited two precedents in particular.

“Absent a contemporaneous strong basis in evidence, the General Assembly would have committed the same mistake in 2023 that it did in Covington … when it created numerous majority-black House and Senate districts and in Harris … when it created two majority-black Congressional districts without a strong basis in evidence that Section 2 required the General Assembly to group citizens by race and to create such majority-black districts,” Dever wrote.

The court order also highlighted a key fact from the 2022 election that could prove inconvenient to the plaintiffs. “North Carolina citizens elected nine black Senators out of 50 Senators, including a black Senator from Edgecombe and Pitt Counties,” Dever wrote. “Edgecombe and Pitt Counties are in northeast North Carolina.” The plaintiffs presented “no evidence that any of the nine black Senators who were elected in November 2022 were elected from Senate districts containing a majority black voting age population.”

It’s another strike against the argument for race-based election districts.

Dever’s order does not end the debate. Appellate judges will have their say as early as this week. Yet it seems they would have a hard time reaching different conclusions about the “odious” use of race in drawing North Carolina’s election maps.

Mitch Kokai is senior political analyst for the John Locke Foundation.