As of Dec. 13, 2021
(Prepared by Phyllis Demko, LWVNC) 

Note – All three of the lawsuits described below were affected by this order of the NC Supreme Court, dated December 6, 2021:  

“In light of the great public interest in the subject matter of these cases, the importance of the issues to the constitutional jurisprudence of this State, and the need for urgency in reaching a final resolution on the merits at the earliest possible opportunity, the Court grants a preliminary injunction and temporarily stays the candidate-filing period for the 2022 elections for all offices until such time as a final judgment on the merits of plaintiffs’ claims, including any appeals, is entered and a remedy, if any is required, has been ordered.”   

This means that the primaries, including for county and municipal elections are moved to May 17, 2022. It is important to note that the Court directed the trial court “to hold proceedings necessary to reach a ruling on the merits . . . and to provide a written ruling on or before Tuesday, January 11, 2022” and that any appeal must be filed within two business days of the trial court’s ruling. An expedited briefing and hearing schedule will commence immediately after notice of appeal. So, unlike in previous decades, it is very likely that these cases will get resolution before the May primaries.  

NCNAACP v. Berger, filed October 29, 2021, Wake County Superior Court – Challenge to the Process for All Redistricting in 2021

The plaintiffs are Common Cause NC, the NC NAACP, and four individuals from Halifax, Duplin, and Wilson counties. This case was brought entirely under the NC Constitution in state court. The Legislature’s Redistricting Committee announced that they would not consider race; however, the Voting Rights Act requires, as a first step, an analysis to determine if there is ”racially polarized voting” (whether people of different races vote differently from each other but the same as people of their own race). The lawsuit alleges that by refusing to consider race, the Legislature violated the process laid out by Stephenson v. Bartlett, an important NC state court decision that described in detail procedures for redistricting and intentionally discriminated against people of color in violation of the NC Constitution’s Equal Protection Clause. The plaintiffs ask the court to declare the process unconstitutional; to make the NCGA re-do the process with different criteria; and to delay the 2022 primaries until May. There is also a claim under the NC Constitution’s Free Association Clause -- Black voters are being prevented from organizing and their “get-out-the-vote” operations cannot be realized optimally.  

On November 30, Judge Graham Shirley denied the request for declaratory judgment and injunction. He said that because the General Assembly has adopted maps already, the remedy is for a court to declare the actual maps (as opposed to the process) are unconstitutional.  

See above note regarding ruling of December 6. 

Harper v. Hall, filed November 5, 2021 in Wake County Superior Court – Challenge to Congressional Redistricting

Plaintiffs are 18 individual plaintiffs, with at least one residing in each of the current 13 Congressional districts. It concerns the Legislature’s recent redistricting of congressional districts.  “The 2021 Plan flagrantly dilutes Democratic votes by trisecting each of the three most heavily Democratic counties in the state—Wake, Guilford, and Mecklenburg. It then packs many of the remaining Democratic strongholds into three congressional districts. The result is as intended: A map that produces 10 safe Republican seats, 3 safe Democratic seats, and 1 competitive district.”  

In asking the court to declare the 2021 Plan is unconstitutional, the plaintiffs rely on the reasoning of Common Cause v. Lewis in which the Superior Court of Wake County struck down the 2017 maps for General Assembly seats, as drawn by the Legislature after the Covington case. The court held that the maps were unconstitutional under the NC State Constitution and enjoined their use in future elections. 

The argument rests on the NC Constitution, specifically the following sections: Article I, Section 10 – “All elections shall be free.”  (“Partisan gerrymandering . . . strikes at the heart of the Free Elections Clause.” Article I, Section 19 – “No person shall be denied the equal protection of the laws.” [“NC’s Equal Protection Clause protects the right to ‘substantially equal voting power.’”] Article I, Sections 12 and 14 – “The people have a right to assemble together to consult for their common good, to instruct their representatives, and to apply to the General Assembly for redress of grievances,” and “Freedom of speech and of the press are two of the great bulwarks of liberty and therefore shall never be restrained.” Democrats’ free speech is burdened by making Democrats’ votes less effective. Further, Democrats’ freedom of association is burdened “by eroding their ability to instruct and obtain redress from their members of Congress on issues important to them.”  

The complaint asserts that the NC Constitution has provisions that either have no counterpart in the US Constitution or that are broader than the similar provision in the US Constitution.   

The main attorneys are the Marc Elias firm in Washington DC, assisted by Patterson Harkavy in Chapel Hill. 

See above note regarding ruling of December 6. 

NC League of Conservation Voters et al. v. Hall, filed November 16, 2021 Wake County Superior Court – Challenge to All Maps Drawn by Legislature in 2021

Filed November 16 in Wake Co. Superior Court, for hearing before 3-judge panel. Case relies on “computational redistricting,” which applies math and computing to both identify maps that are unconstitutional and to remedy those violations by drawing new maps on algorithmic techniques.  The claim is against all new districts – Congressional, State Senate and State House. Both partisan gerrymandering and racial gerrymandering are alleged. As in Harper v. Hall, the plaintiffs rely on these provisions of the NC State Constitution (and explicitly do not rely on federal law):  Free Elections Clause, Equal Protection Clause, and Free Speech and Free Assembly Clauses. They also invoke the line of cases known as Stephenson/Dickson for alleging violations of the Whole County Provisions, saying that the defendants’ partisan and racial gerrymandering depends on dividing counties (such as Mecklenburg, Wake, and Guilford) more than necessary.  

The plaintiffs ask the court to declare all the maps drawn by the General Assembly in 2021 unconstitutional, to require a complete and speedy redrawing, and if that does not happen, to apply maps drawn by the plaintiffs. Also, they ask the court to delay the primary beyond March 2022.  

On December 3, 2021, a three-judge panel in Wake Superior Court (including Judge Shirley from the NC NAACP case above) denied the request for a preliminary injunction that would delay the primary from March. At this writing, the plaintiffs have not appealed. 

See above note regarding ruling of December 6.