Raleigh, N.C. — Wake County should move ahead with elections for school board and county commissioner under districts drawn by the General Assembly, despite a ruling that those lines are unconstitutional, top lawmakers told a federal court Monday.
"There is a well-established precedent in North Carolina for elections being allowed to move forward on schedule when changing the districts too close to the election would result in chaos and confusion," read a joint statement issued by House Speaker Tim Moore and Senate President Pro Tem Phil Berger.
The statement from the lawmakers came as lawyers filed a trio of briefs Monday in an increasingly convoluted case.
Lawmakers drew districts for Wake County's school board in 2013 and, in 2015, adopted the same plan for the Board of Commissioners. At the time, opponents of the plan said that Republicans in the General Assembly were trying to redraw maps to give the GOP partisan advantages in local races. Republicans insisted they were merely trying to ensure rural areas of the county were better represented.
Opponents challenged those districts, initially losing at the federal district court level. But the 4th U.S. Circuit Court of Appeals subsequently struck those districts down, sending the case back to U.S. District Judge James Dever to manage. The Wake County Board of Elections has asked the 4th Circuit to rehear the case en banc, which would set aside the three-judge panel's ruling and put the case before all 15 of the court's justices.
In the meantime, November's general election is quickly approaching, and absentee ballots need to be issued Sept. 9. That means the roster of races and their districts need to be settled by early August, state Elections Director Kim Strach told reporters Monday afternoon.
A filing from the Wake County Board of Elections echoed Strach's sentiment, saying that the local board of elections would carry out whatever the court instructs, but stressing it was pressed for time.
"The critical deadline currently in place with respect to the General Election is August 10, 2016, which is the deadline for petitioning for space on the ballot for a write-in candidate," lawyers for the Wake County Board of Elections wrote in their brief. "That is the last act necessary to begin the preparation of ballots in anticipation of complying with the date to mail military, overseas and absentee ballots by the current deadline of September 9, 2016."
Neither the state board nor the local board made any suggestion as to what the court should do with the case.
Legislative leaders and plaintiffs in the case have more definitive opinions.
Moore, R-Cleveland, and Berger, R-Rockingham, said that, while it was too late to enact new districts, prior courts have allowed elections to go forward under districts that were in dispute.
"This Court should therefore allow elections to proceed as scheduled ... but only for the 2016 General Election, and direct the legislature to enact new districting plans for these offices within a reasonable time after the General Assembly reconvenes in January 2017," the lawmakers' brief reads.
The lawmakers also said the judge could make adjustments to the districts himself. That same brief also played down the importance of a footnote in the 4th Circuit ruling in which the appellate judges wrote they "see no reason" to use the invalid districts.
"The decision by the Fourth Circuit is at best ambiguous on the type of remedy which now should be fashioned by this Court," the brief on behalf of Berger and Moore reads.
However, lawyers writing for the Raleigh Wake Citizens Association and other plaintiffs in the case insisted the court should throw out the legislatively drawn districts and revert to old maps put together in 2011 by the commissioners and the school board.
"There is no need, and no legal justification, for this Court to do anything beyond implementing the mandate by issuing a permanent injunction enjoining the Defendant Wake County Board of Elections from holding elections under the statutes ruled unconstitutional in this case," lawyers for the plaintiffs wrote.
It will now be up to Dever to sort out the conflicting advice he has gotten and make a decision. However, even that will have to wait until the 4th Circuit decides whether it is going to rehear the case. There's no timeline for that decision.