Pierce v. N. Carolina State Bd. of Elecs.

97 F.4th 194

Rodney D. PIERCE; Moses Matthews, Plaintiffs - Appellants, v. The NORTH CAROLINA STATE BOARD OF ELECTIONS; Alan Hirsch, in his official capacity as Chair of the North Carolina State Board of Elections; Jeff Carmon, III, in his official capacity as Secretary of the North Carolina State Board of Elections; Stacy "Four" Eggers, IV, in his official capacity as a member of the North Carolina State Board of Elections; Kevin Lewis, in his official capacity as a member of the North Carolina State Board of Elections; Siobhan Millen, in her official capacity as a member of the North Carolina State Board of Elections; Phillip E. Berger, in his official capacity as President Pro Tem of the North Carolina Senate; Timothy K. Moore, in his official capacity as Speaker of the North Carolina House of Representatives, Defendants - Appellees Roy A. Cooper, III; Joshua Stein, Amici Supporting Appellants.

No. 24-1095

United States Court of Appeals, Fourth Circuit

Argued: February 15, 2024

Decided: March 28, 2024

Appeal from the United States District Court for the Eastern District of North Carolina, at Greenville. James C. Dever III, District Judge. (4:23-cv-00193-D-RN)

ARGUED: Elisabeth S. Theodore, ARNOLD & PORTER KAYE SCHOLER LLP, Washington, D.C., for Appellants. Phillip John Strach, NELSON MULLINS RILEY & SCARBOROUGH, LLP, Raleigh, North Carolina, for Appellees. ON BRIEF: Edwin M. Speas, Jr., POYNER SPRUILL LLP, Raleigh, North Carolina; R. Stanton Jones, Samuel I. Ferenc, ARNOLD & PORTER KAYE SCHOLER LLP, Washington, D.C., for Appellants. Thomas A. Farr, Alyssa M. Riggins, Cassie A. Holt, Alexandra M. Bradley, NELSON MULLINS RILEY & SCARBOROUGH LLP, Raleigh, North Carolina; Richard B. Raile, Katherine L. McKnight, Trevor M. Stanley, Benjamin D. Janacek, Washington, D.C., Patrick T. Lewis, Cleveland, Ohio, Rachel Palmer Hooper, Tyler G. Doyle, BAKER & HOSTETLER LLP, Houston, Texas, for Appellees. Joshua H. Stein, Attorney General, Ryan Y. Park, Solicitor General, James W. Doggett, Deputy Solicitor General, Lindsay Vance Smith, Deputy Solicitor General, South A. Moore, Deputy General Counsel, Mary Elizabeth D. Reed, Solicitor General Fellow, NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for Amici Curiae.

Before WILKINSON, GREGORY, and RUSHING, Circuit Judges.

Affirmed by published opinion. Judge Rushing wrote the majority opinion, in which Judge Wilkinson joined. Judge Gregory wrote a dissenting opinion.

RUSHING, Circuit Judge:

North Carolinians are currently going to the polls to vote in primary elections for their state senators, among many other public offices.¹ Each voter casts a ballot for a candidate to represent their respective district among the State's 50 Senate districts, as recently reconfigured by the General Assembly in October 2023. In November, Plaintiffs—two North Carolina voters—sued the State Board of Elections and its members, along with the President pro tempore of the North Carolina Senate and the Speaker of the North Carolina House of Representatives, alleging that the boundaries of Senate Districts 1 and 2 in eastern North Carolina violate Section 2 of the Voting Rights Act of 1965 (VRA). In addition to permanent injunctive relief, Plaintiffs also sought a preliminary injunction barring use of Senate Districts 1 and 2 and ordering use of new districts drawn by Plaintiffs in the 2024 elections.

After conducting a hearing and considering all the parties' evidence, the District Court for the Eastern District of North Carolina denied the requested preliminary injunction. The district court concluded that Plaintiffs have not shown the extraordinary circumstances necessary to justify disrupting the status quo before trial; that Plaintiffs have not proven they are likely to succeed on the merits of their VRA claim; and that equitable factors, including proximity to the 2024 elections, counsel against preliminary injunctive relief. Plaintiffs appealed, and we granted their motion to expedite our review. We now affirm the judgment of the district court and remand for continued proceedings.

I.

Plaintiffs challenge the electoral map the North Carolina General Assembly enacted in Senate Bill 758 (SB 758) in 2023. That map wasn't drawn in a vacuum, so we begin with some legal and historical context.

A.

Under the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution, "districting maps that sort voters on the basis of race 'are by their very nature odious.'" Wis. Legislature v. Wis. Elections Comm'n, 595 U.S. 398, 142 S. Ct. 1245, 1248, 212 L.Ed.2d 251 (2022) (per curiam) (quoting Shaw v. Reno, 509 U.S. 630, 643, 113 S.Ct. 2816, 125 L.Ed.2d 511 (1993)). States cannot enact such maps "'unless they are narrowly tailored to achieving a compelling state interest.'" Id. (quoting Miller v. Johnson, 515 U.S. 900, 904, 115 S.Ct. 2475, 132 L.Ed.2d 762 (1995)). At the same time, compliance with the VRA "often insists that districts be created precisely because of race." Abbott v. Perez, 585 U.S. 579, 138 S. Ct. 2305, 2314, 201 L.Ed.2d 714 (2018). "In an effort to harmonize these conflicting demands," the Supreme Court has assumed that complying with the VRA, and Section 2 in particular, is a compelling interest. Id. at 2315; Wis. Legislature, 142 S. Ct. at 1248.

As relevant here, a State violates Section 2 of the VRA "if, based on the totality of circumstances, it is shown that the political processes leading to nomination or election in the State or political subdivision are not equally open to participation by members of a [racial minority group] in that its members have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice." 52 U.S.C. § 10301(b). The Supreme Court has construed Section 2 "to prohibit the distribution of minority voters into districts in a way that dilutes their voting power." Wis. Legislature, 142 S. Ct. at 1248. In Thornburg v. Gingles, 478 U.S. 30, 106 S.Ct. 2752, 92 L.Ed.2d 25 (1986), the Supreme Court articulated a framework for demonstrating this sort of violation. "First, three 'preconditions' must be shown: (1) The minority group must be sufficiently large and compact to constitute a majority in a reasonably configured district, (2) the minority group must be politically cohesive, and (3) a majority group must vote sufficiently as a bloc to enable it to usually defeat the minority group's preferred candidate." Wis. Legislature, 142 S. Ct. at 1248 (quoting Gingles, 478 U.S. at 50-51, 106 S.Ct. 2752); see also Allen v. Milligan, 599 U.S. 1, 143 S. Ct. 1487, 1503, 216 L.Ed.2d 60 (2023). Then, "a plaintiff who demonstrates the three preconditions must also show, under the 'totality of circumstances,' that the political process is not 'equally open' to minority voters." Milligan, 143 S. Ct. at 1503 (quoting Gingles, 478 U.S. at 45-46, 106 S.Ct. 2752).

Before a State may engage in race-based districting, it must have "'a strong basis in evidence' for concluding that [Section 2] required its action," i.e., "that it would transgress the [VRA] if it did not draw race-based district lines." Cooper v. Harris, 581 U.S. 285, 137 S. Ct. 1455, 1464, 197 L.Ed.2d 837 (2017) (quoting Ala. Legislative Black Caucus v. Alabama, 575 U.S. 254, 278, 135 S.Ct. 1257, 191 L.Ed.2d 314 (2015)). Put differently, the Equal Protection Clause "does not allow a State to adopt a racial gerrymander that the State does not, at the time of imposition, 'judg[e] necessary under a proper interpretation of the VRA.'" Wis. Legislature, 142 S. Ct. at 1250 (quoting Cooper, 137 S. Ct. at 1472).

A state legislature attempting to produce a districting plan that comports with both the Equal Protection Clause (which "restricts consideration of race") and the VRA (which "demands consideration of race") is thus "vulnerable to 'competing hazards of liability.'" Perez, 138 S. Ct. at 2315 (quoting Bush v. Vera, 517 U.S. 952, 977, 116 S.Ct. 1941, 135 L.Ed.2d 248 (1996) (plurality opinion)). Over the past three decades, the North Carolina General Assembly has attempted to navigate those hazards with mixed success. A brief survey of its efforts provides helpful context for understanding the current case.

B.

Though we could go back further,² we begin in 2003 when the North Carolina General Assembly adopted a redistricting plan that divided Pender County in southeastern North Carolina between two state House districts. See Pender County v. Bartlett, No. 04CVS06966, 2006 WL 4077037 (N.C. Super. Ct. Jan. 9, 2006). Pender County sued, arguing the 2003 redistricting plan violated the North Carolina Constitution's Whole County Provision, which prohibits counties from being divided "in the formation of a representative district." N.C. Const. art. II, § 5(3); see also id. § 3(3) (same, Senate districts). The State defended the map as an effort to comply with Section 2 of the VRA by creating a crossover district—i.e., a district in which the minority population is not a majority but is large enough to elect the candidate of its choice with help from voters who are members of the majority and who cross over to support the minority's preferred candidate. See Pender County v. Bartlett, 361 N.C. 491, 649 S.E.2d 364, 367 (2007) ("Past election results in North Carolina demonstrate[d] that a legislative voting district with ... an African-American voting age population of at least 38.37 percent, create[d] an opportunity to elect African-American candidates," so "the General Assembly fashioned House District 18 with... an African-American voting age population of 39.36 percent" to create an "effective black voting district." (internal quotation marks omitted)).

The Supreme Court rejected the State's VRA defense, explaining that "Section 2 does not impose on those who draw election districts a duty to give minority voters the most potential, or the best potential, to elect a candidate by attracting crossover voters." Bartlett...