Federal judge has tough questions for Black voters claiming racial gerrymandering in NC maps
A federal judge heard arguments Wednesday in a lawsuit that has the potential to upend the 2024 primary elections in North Carolina. His ruling could come anytime; the challengers have asked that he rule as quickly as possible.
Black voters in Northeastern North Carolina are suing to temporarily halt the elections for at least two state Senate districts. They say GOP leaders engaged in racial gerrymandering when they drew the districts in the Northeastern part of the state, which is home to eight majority-Black rural counties. The lawsuit claims that the newly drawn districts were drawn in a way that divides their communities, to dilute Black voters’ political influence in the coming elections.
Republican state lawmakers redrew all of the state’s legislative districts and U.S. House seats late last year, after previous maps they drew in 2021 were struck down as unconstitutional. A new series of lawsuits, including the one to be heard Wednesday, argue the new maps are also unconstitutional. Republicans strongly deny the accusation — and say that, either way, it's too late to do anything before the 2024 elections, with the March primary just around the corner.
On Wednesday the judge hearing the case about the state Senate lines, Federal District Court Judge James Dever, posed a number of tough questions to the challengers before saying he believed they might not have a case at all.
One of their expert witnesses submitted a report that showed, based on data from 31 recent elections, that the candidate preferred by Black voters likely would've lost all 31 times under one of the new GOP-drawn districts, and 30 out of 31 times in the other district that the lawsuit focuses on. But that one win, Dever said, is enough to give him serious concerns about throwing out the map and ordering the legislature to draw new districts.
"It completely defeats your argument on 'Gingles III,'" he said, referring to a Supreme Court precedent used for measuring racial gerrymandering. "It just eviscerates it."
Eddie Speas, an attorney for the Black voters challenging the maps, disagreed. He said their preferred candidates will have no realistic chance of winning, since both of the new districts in that northeastern part of the state are about 30% Black. He and his clients are asking for a redraw to create one district that's about 50% Black.
Speas noted that in 2022, a now-defunct version of one northeastern district — where 44% of the voters were Black — still voted for Ted Budd, a white Republican, in the U.S. Senate race over Cheri Beasley, a Black Democrat. Speas and his co-counsel Elizabeth Theodore said that's because in that rural area, politics are almost entirely divided along racial lines: 85% of white voters will oppose a candidate who's supported by Black voters, Theodore said.
Dever appeared skeptical and cited recent successes by Black candidates, other than Beasley, in statewide elections: Democratic Supreme Court justices Anita Earls and Michael Morgan, who recently resigned to run for governor, and Republican Lt. Gov. Mark Robinson, who is also running for governor.
The stakes in the case are high: Republicans have a veto-proof supermajority in the Senate by just one vote. If the voters who brought this lawsuit win their case, in which they’ve suggested their own new replacement maps, Democrats would likely flip one of the two seats in question.
Republican leaders have said repeatedly that they didn’t use racial data to draw new voting districts, nor should they. They said doing so would be a violation of the federal Voting Rights Act. But Democrats say the opposite is true, and that racial data should’ve been used when drawing the maps — to ensure Black voters weren’t being discriminated against.
NC's long history of gerrymandering
The back-and-forth Wednesday was a rematch of sorts for Speas and Dever, who were on opposite sides of a landmark 1996 racial gerrymandering case called Shaw v. Hunt, about whether Democratic lawmakers had racially gerrymandered North Carolina's congressional districts to give too much influence to Black voters.
Dever, who at the time was a lawyer for the Republican challengers, won that case in a 5-4, party-line ruling at the U.S. Supreme Court. At the time, all the court's conservative justices ruled in the GOP's favor. He was later appointed to a federal judgeship by Republican President George W. Bush.
On Wednesday he referenced the Shaw case several times, saying he worried the Black voters in this new case are asking for a remedy that would be similarly unconstitutional. Speas, who represented the Democrats in the Shaw case, responded that this new argument is different. The Shaw case was about the famously gerrymandered district that snaked halfway across the state from Durham to Charlotte — but Speas said that the solution they're proposing now for northeastern North Carolina would actually be even more compact than what Republicans drew.
Speas ended the hearing by thanking Dever for the chance to argue, prompting Dever to joke about that word's multiple meanings in legal settings.
"I hope you don't feel you were arguing with me, but that you were arguing before me," the judge said. "I appreciate the discussion."
State Sen. Dan Blue, D-Wake, was in court Wednesday to watch the proceedings. Now the top-ranking Democrat in the state Senate, Blue was the Speaker of the House in the early 1990s — when he and other Democratic lawmakers drew the map that was later overturned in the Shaw case.
The only Black person to ever serve as a top state legislative leader, Blue said after court Wednesday that while he thought racial polarization in politics has improved significantly over the decades, it's still prevalent in rural areas including Northeastern North Carolina.
"There's been tremendous progress ... but there are still substantial improvements that need to be made," he said.
What happens next
One of the biggest unresolved questions is what will happen if Dever finds that GOP lawmakers did engage in racial gerrymandering when drawing the two Senate districts in question.
The challengers say the problems can be fixed purely by swapping counties between the two districts, to create a single district with many heavily Black counties instead of spreading those counties out between both districts. But GOP leaders say they don’t think that would be legal. They argue that if the judge rules in favor of the challengers they will have to redraw many — maybe all — of the state’s 50 Senate districts.
When drawing Congressional districts, federal law requires they all be identical populations. But state law requires no such proportionality for state legislative seats. Instead, those districts can vary in population as long as doing so helps keep individual counties from being split up when possible. And GOP leaders say that redrawing the two districts in question could force them to come up with new groups of counties to group together in eastern North Carolina, a process that could affect the rest of the state.
A ruling in favor of the challengers, Republican lawmakers say, could possibly force all 50 Senate districts to be redrawn and therefore put the elections on hold. They claim it “could require re-grouping most if not all the remaining groupings and ripple throughout the entire state Senate map.”
Phil Strach, a lawyer for GOP lawmakers, also said Wednesday that the case was brought too late and that no maps should be drawn in time for the 2024 elections. An in-depth trial to examine the issues before a ruling would be the more appropriate course of action, he said, while also adding that he doesn't think the Black voters have a good argument either way about the maps disenfranchising them.
Republican state lawmakers won an initial fight in the case late last year, when Dever declined to speed up the case to allow a hearing to occur before candidate filing began in early December.
