By Theresa Opeka, Carolina Journal

A Wake County Superior Court Judge dismissed a lawsuit Tuesday that was filed against the state’s election redistricting process. The suit alleged that the General Assembly violated previous court precedents governing how election maps should be drawn.

Judge Graham Shirley dismissed the suit, stressing that the ruling was not a judgment on the maps themselves. Shirley ruled instead on issues linked to procedure and separation of powers.

The Southern Coalition for Social Justice filed the lawsuit for the state NAACP and Common Cause back on Oct. 29, before new election maps were passed by lawmakers on Nov. 4. Lawyers for the plaintiffs argued that state legislators skipped the first step of the mapmaking process mandated by a 20-year-old state Supreme Court ruling. That case, Stephenson v. Bartlett, should have guided lawmakers during this year's redistricting process, plaintiffs argued. Lawmakers violated that process when criteria for the maps were passed on Aug. 12, diluting the votes of the individual plaintiffs.

Shirley asked why plaintiffs waited until Oct. 29 to file a lawsuit if they faced immediate harm. The plaintiffs' lawyer responded that they wanted to understand if the maps would actually cause harm. Shirley said the maps could only cause harm once they were enacted, not before.

A lawyer defending legislative defendants in the lawsuit pointed out that the burden of proof is on the plaintiffs, but that none of the lawsuits, including the one being heard, state that the maps violate the federal Voting Rights Act.  He argued that the maps are compliant with the VRA and comply with the Stephenson ruling, in which the N.C. Supreme Court handed down a historic redistricting decision throwing out the gerrymandered maps drawn by Democrats who controlled the General Assembly at the time. The Stephenson decision states there are no required voting districts.

The 2017 Cooper v. Harris decision offered North Carolina guidance on using racial data when drawing redistricting maps. In that ruling, the U.S. Supreme Court overturned North Carolina’s 1st and 12th congressional districts. The opinion, written by Justice Elena Kagan, charged that "racial considerations predominated in designing both [congressional] District 1 and District 12” and that “Section 2 of the VRA gave North Carolina no good reason to reshuffle voters because of their race.'

“The danger of using racial data to draw district maps is that the legislature would be vulnerable to charges that race played a predominant role in drawing those districts,” said Andy Jackson, director of the Civitas Center for Public Integrity at the John Locke Foundation.

“Once racial data are introduced into the redistricting process, legislators will not be able to unsee the data they have seen and will be vulnerable to charges that racial considerations predominated in drawing districts,” added Jackson.

Shirley rejected the plaintiff's request that North Carolina's election filing period for candidates, scheduled for Dec. 6, be delayed and the 2022 statewide primary, scheduled for March 8, be delayed two months until May. Shirley also denied the preliminary injunction requiring the plaintiffs to go back and follow the process set out in the Stephenson ruling.

“That’s essentially asking this court to undo what was already done,” Shirley said. “Without attacking the validity of the maps, and under the long-standing case law of this state, asking the court to undo what has already been done does not form the basis for a preliminary injunction.”

“As long as the maps have not been declared unconstitutional or violative of federal law, there is no harm to address in this case. The motion for preliminary injunction as it relates to delaying the filing period or primary is denied in this case,” Shirley said. Plaintiffs asked the court to interfere with the process of the General assembly prior to the completion of that process, which would violate the principle of the separation of powers.

A brief, filed by a group of former governors in support of the lawsuit, was not discussed. Signing the letter were former N.C. Gov. Mike Easley, a Democrat, and Republicans Arnold Schwarzenegger of California, Christine Todd Whitman of New Jersey, and William Weld of Massachusetts. The governors' letter claimed the maps dilute people’s votes.

A three-judge panel will hold a hearing Friday, Dec. 3, in separate litigation targeting the actual election maps.