Raleigh, N.C. — U.S. District Judge James Dever could have boiled Tuesday's hearing in the battle over Wake County's school board and county commissioner districts down to one question: What now?
The 4th U.S. Circuit Court of Appeals on July 1 struck down maps the General Assembly drew for the Wake County Board of Commissioners and school board, but the appeals court did not give specific instructions as to what to do next.
After a month-long game of hot potato fought out in court fillings, Dever summoned lawyers for the Wake County Board of Elections, the State Board of Elections, the General Assembly and the plaintiffs in the case, including the Raleigh-Wake Citizens Association, to his court room to sort through options.
At the end of 90 minutes, Dever gave no indication as to whether he was any closer to a decision, noting several times the 4th Circuit hasn't officially passed the case back to him. Until that court issues a mandate, possibly as soon as Wednesday morning, Dever is powerless to act.
If Tuesday's hearing is any indication, he will pick from among three basic courses of action:
- The citizens association, represented by Anita Earls of the Southern Coalition for Social Justice, says Dever should take the state back to how the law was before lawmakers began to intervene in 2013.
- Legislative leaders, represented by Thomas Farr, suggested that the judge should fix the districts on his own and suggested they could file an "illustrative plan" for guidance.
- The State Board of Elections, represented by General Counsel Josh Lawson, offered that it could undertake any number of fixes if the court so ordered. Lawson stressed the limits of the board's ability to act on its own as well as the fact the board has never drawn maps before.
Meanwhile, the Wake County Board of Elections said it had no opinion on what should be done, only that it needed clear direction in the next week or so to meet a Sept. 9 deadline for sending out absentee ballots. The Wake County board has repeatedly said it does not have the power to draw maps but can only carry out an election as instructed by state law, the state board and the courts.
"They certainly are in dire need of direction," Charles Marshall, a lawyer for the Wake County Board of Elections, said of his board.
That's especially the case since the three-member board is lacking one member and is currently split between one Republican and one Democrat. The state Republican Party is responsible for recommending someone for the State Board of Elections to appoint to the vacancy.
At several points during the hearing, a frustrated Dever quizzed Earls on how he should act. In an earlier filing, Earls said that he had no choice but to go back to the old maps. Generally, Dever said, federal courts had broad discretion to act, and Earls' position "just strikes me as odd."
Earls argued other cases with which Dever was familiar involved maps that were drawn immediately following a U.S. census. In those cases, the old maps violated one-man, one-vote principles because populations had grown and shifted. The courts in those cases, she said, had no choice but to draw maps as a last resort since they could not go backwards.
"Here, we have a plan that can be used and has been used," she said, arguing that the 4th Circuit merely threw out the legislatively drawn maps, and its decision did not give Dever instructions to draw them or create new ones.
"You would also agree," Dever responded, "that it doesn't say, 'We remand and instruct that the prior plans be used' ... You all wouldn't need to be here if that were the case."
Farr argued that Dever not pass on the power to redraw maps to the state board and insisted that the state should not revert to the old maps.
"We do not think it's proper to go back to the 2013 plan because it doesn't represent the latest policy decision made by the legislature," he said.
After he offered to submit "illustrative maps" to the court, Earls objected, saying that legislative leaders weren't a party to case and noting that they represented only the thoughts of House Speaker Tim Moore and Senate President Pro Tem Phil Berger. Other lawmakers, she said, might have other suggestions.
As the hearing wound down, Lawson suggested that, if the court pushed back the timing of the Wake County election schedule to accommodate as-yet unknown changes, it could create a scenario in which voters get two different absentee ballots. That, he said, is based on prior experience and guidance from the U.S. Justice Department.
That idea drew an objection from Farr on behalf of legislative leaders.
"I cannot imagine a more confusing election process for people to get two different absentee ballots," he said. "That would be a disaster."