Publisher's Note: This post appears here courtesy of the Carolina Journal. The author of this post is CJ Staff.
Plaintiffs appealing a recent ruling in a North Carolina redistricting lawsuit are asking the full 4th US Circuit Court of Appeals to hear the case. They also ask appellate judges to expedite the case as candidate filing approaches for the state's 2026 elections.
US District Judge James Dever ruled on Sept. 30 that the North Carolina General Assembly did not violate constitutional restrictions against racial gerrymandering when it drew two challenged state Senate districts in northeastern North Carolina.
Plaintiffs Rodney Pierce and Moses Matthews issued a notice of appeal the following day. The 4th Circuit normally would assign a three-judge panel to hear the case. Pierce and Matthews filed a petition Monday for an en banc hearing involving all eligible 4th Circuit judges.
Pierce is a Democratic state representative who was elected to office after filing the suit in 2023. Republican state legislative leaders have defended the challenged maps against the lawsuit in court.
Appellate judges appointed by Democratic presidents outnumber those appointed by Republicans on the 4th Circuit.
"This exceptionally important and time-sensitive appeal presents a paradigmatic occasion for expedited initial hearing en banc under Federal Rule of Appellate Procedure 40(g)," the plaintiffs' lawyers wrote.
The state Senate map split northeastern North Carolina's
"Black Belt" of voters, according to the court filing.
"It cracked the Black population across Senate Districts 1 and 2, leaving each with roughly 30% Black voting-age population."
"Yet the district court denied relief," the plaintiffs' lawyers wrote. Dever's
"radical" ruling would
"gut" Section 2 of the federal Voting Rights Act.
"Time is short. Candidate filing for the 2026 primaries begins December 1, 2025. Only immediate en banc review can ensure uniformity with Supreme Court precedent and prevent an obvious, highly consequential Section 2 violation from persisting through another election cycle," the petition continued.
Dever found
"that plaintiffs have failed to prove their Section 2 claim," he wrote in a 126-page order.
"Thus, the General Assembly need not use the odious practice of sorting voters based on race or the 'politics of second best' to create a majority-black Senate district in northeast North Carolina."
The trial judge had conducted a five-day trial in the case in February.
"As the Supreme Court observed in De Grandy 31 years ago, 'for all the virtues of majority-minority districts as remedial devices, they rely on a quintessentially race-conscious calculus aptly described as the politics of second best,'" Dever wrote, citing the 1994 court precedent Johnson v. DeGrandy.
The order also referenced a 1986 precedent.
"'If the lesson of [Thomburg v.] Gingles ... is that society's racial and ethnic cleavages sometimes necessitates majority-minority districts to ensure equal political and electoral opportunity, that should not obscure the fact that there are communities in which minority citizens are able to form coalitions with voters from other racial and ethnic groups, having no need to be a majority within a single district in order to elect candidates of their choice,'" Dever wrote.
"The record in this case demonstrates that the communities in northeast North Carolina at issue in this case are such communities," the judge explained.
"Likewise, communities throughout North Carolina are such communities."
Dever noted the success of black candidates in existing North Carolina districts with black voting-age populations below 50%.
"The court also finds that the success of minority-preferred candidates in crossover districts supports a finding that legally significant racially polarized voting does not exist in North Carolina, including in northeast North Carolina," he wrote.
"For example, Senate District 5 in Edgecombe County and Pitt County had a BVAP of 40.5% and comfortably elected a black Democrat (Kandie Smith) in 2022 and 2024. Likewise, House District 8 in Pitt County had a BVAP of 45.35% in 2024 and 38.13% in 2022 and comfortably elected a black Democrat (Gloristine Brown) in 2022 and 2024."
"Similarly, House District 24 in Wilson County and Nash County had a BVAP of 38.5% and comfortably elected a black Democrat (Dante Pittman)," the court order continued.
"And House District 27 in Halifax County, Northampton County, and Warren County had a BVAP of 39.5% and comfortably elected a black Democrat who is also the lead plaintiff in this case (Rodney Pierce)."
"The list goes on throughout North Carolina," Dever wrote.
"For example, Sydney Batch, a black Senator and current Senate Democratic Leader, represents a district in Wake County ''that's less than 20 percent' black, and she comfortably won her district. Senator [Dan] Blue, a black Senator and former Senate Democratic Leader, represents a district in Wake County that is only 40% black, and he comfortably won his district."
"Representative [Robert] Reives, a black Representative and Minority Leader in the House, represents House District 54 in Chatham and Randolph Counties," Dever added.
"House District 54 has a BVAP of 11.6%. Representative Reives has comfortably won five straight elections."
Dever's order chided Reives for comments he made about Pittman's 2024 electoral victory during the trial. Reives
"undermined his own credibility" by suggesting that Pittman might not count as a black candidate for the purposes of a racial gerrymandering case, Dever explained.
"The success of black-preferred candidates also exists in congressional races," the judge explained. Dever cited US Rep. Don Davis' success in Congressional District 1, along with Reps. Alma Adams in District 12 and Valerie Foushee in District 4.
"Notably, Congressman Davis represents most of plaintiffs' Demonstration Area," Dever wrote.
"In fact, most, if not all of plaintiffs' Demonstration Area has been represented in Congress by a black Democrat since 1992."
"The court finds that racial block voting does not 'operat[e] at such a level that it would actually minimize or cancel . .. minority voters, ability to elect representatives of their choice,'" the judge explained.
The plaintiffs failed to meet standards set by the 1986 Gingle precedent, Dever wrote.
"Even if plaintiffs did satisfy Gingles, three preconditions, the court finds that plaintiffs failed to prove under the totality of the circumstances that the district lines in northeast North Carolina dilute the votes of black voters."
"[P]laintiffs failed to prove that legally significant racially polarized voting occurs in North Carolina generally, in northeast North Carolina specifically, in the Demonstration Area specifically, or in Senate Districts 1 and 2 specifically," the judge determined.
"In fact, the evidence shows substantial crossover voting statewide, in northeast North Carolina, in the Demonstration Area, and in Senate Districts 1 and 2. Furthermore, the court finds that, to the extent racially polarized voting exists in North Carolina, including in northeast North Carolina, the Demonstration Area, or in Senate Districts 1 and 2, it does not materially affect black voters' ability to participate in the electoral process or to elect the candidate of their choice."
Dever rejected the plaintiffs' argument that the challenged Senate districts illegally split a
"black belt" in northeastern North Carolina.
"Black candidates also have found electoral success in North Carolina's Black Belt and Demonstration Area," he wrote.
"As discussed, for over 30 years, Black Belt voters have elected black candidates to Congress, including Frank Ballance, Eva Clayton, G.K. Butterfield, and Don Davis. As discussed, black Congressional candidates (such as Congressman Don Davis and Congressman G.K. Butterfield) consistently secure wide margins of victory, even without a majority BVAP district. As discussed, in the 2024 election, voters continued this trend by reelecting Congressman Don Davis, a black Democrat, from a district that is not majority-black or majority-minority."
"Since the 1980s, voters in plaintiffs' Demonstration Area and in the Black Belt also have regularly elected black candidates to the General Assembly," Dever noted.
"Notably, voters in Halifax, Warren, and Northampton counties elected Representative Pierce (the lead plaintiff in this case) to the House in 2024 during this litigation," the judge added.
"Throughout North Carolina, voters elect black candidates up and down the ballot and have for quite some time," Dever wrote.
"Crossover voting occurs throughout North Carolina up and down the ballot."
"It is not 1965 or 1982 in North Carolina. It is 2025," he wrote.
"Due in part to societal progress on race and due in part to the VRA, North Carolina is a very different state politically and socially than it was in 1965 or 1982. Black voters in northeast North Carolina and throughout North Carolina have elected candidates of their choice (both white and black) with remarkable frequency and success for decades. Black elected officials in North Carolina are at or near-parity with their share of the statewide population."
"North Carolina's African-American voting age population is approximately 21.37% of the State and its total population is 22% of the State," he explained.
"The North Carolina House has 23.3% African-American Representatives (28 out of 120). The North Carolina Senate has 20% African-American Senators (10 out of 50). Thus, African-American legislators hold 21.7% of the seats in the North Carolina General Assembly. These legislative election results arose without race in the computer or the odious practice of grouping voters by race."
"Throughout North Carolina, black voters regularly join with their white counterparts to support common causes and candidates in local elections, state elections, and federal elections," Dever wrote.
"Plaintiffs ignore the progress that North Carolina has made over the past 60 years and seek to use Section 2 to sort voters by race in order to squeeze one more Democratic Senate district into the map. Congress did not amend Section 2 in 1982 for that purpose."
