In February of this year, a 3 judge panel from the 4th Circuit Court of appeals threw out the congressional district voting maps just weeks before the state’s primary election. Maps that had passed muster through multiple challenges were now null. Lawmakers were given just a handful of days to re-draw the maps.
Judge Roger Gregory and Judge Max Coburn ruled against North Carolina. Judge William Osteen, Jr. dissented. Sen. Bob Rucho (R-Mecklenburg) and Rep. David Lewis (R-Harnett) were the lead authors of the maps.
This was an unprecedented move and it thrust North Carolina’s elections into chaos. By unprecedented, I mean that nationally. No court has ever interrupted a state’s elections that were already in progress before.
This move by the 4th Circuit disenfranchising thousands of voters who had already voted by absentee ballot. At the time of the ruling, over 8,600 absentee ballots had already been requested.
Candidates who had been running against a particular opponent in a particular district, now found themselves either facing someone new or out of the running entirely. The end result was the March primary was moved to June and voters were left confused and frustrated.
Well, the 4th Circuit has done it again.
This time it’s the Wake county School board and Commissioner districts. Another 3 judge panel sent down another 2-1 ruling nullifying the current map (below).
The 4th Circuit panel even suggested the coming November elections shouldn’t happen. Part of the ruling says that, “We see no reason why the November 2016 elections should proceed under the unconstitutional plans we strike down today.”
Sen. Chad Barefoot (R – Franklin, Wake) is the lead author of the Wake county redistricting map. Rep. David Lewis (R-Harnett) is also involved. The suit challenging the maps names Barefoot, Speaker of the House Tim Moore (R- Cleveland) and President Pro Tempore Phil Berger (R- Guildford, Rockingham).
The 4th Circuit judges involved this time are Judge Roger Gregory, Judge Diana Motz and Judge James Wynn. Judge Diana Motz dissented. In her dissent she noted more than half a dozen times that the plaintiffs had failed to make their case.
Motz wrote that, “In sum, faced with the heavy burden of proving that assertedly illegitimate “partisanship” constituted the predominant motivation for the presumptively constitutional redistricting plans, Plaintiffs failed to offer any evidence truly probative of legislative intent. Plaintiffs’ experts tendered conclusions that their analyses could not support.”
This ruling by the 4th Circuit Court of Appeals comes as the result of an appeal to a February decision by U.S. Chief District Court Judge James C. Dever III. There were separate lawsuits challenging both the school board and commission maps. These separate suits were consolidated into one case.
Prior to that consolidation, U.S. District Court Judge Terrence Boyle dismissed a lawsuit challenging the school board maps in March of 2014. The suit was brought back in May 2015, however, when a 3 judge panel on the U.S. Court of Appeals sent it back to court.
Dever issued an 108 page ruling, which in part said that, “The court finds that the General Assembly did not engage in invidious discrimination, act arbitrarily, or act in bad faith in enabling the 2013 Wake County School Board Plan or the 2015 Wake County Commissioners Plan.” Dever also said the maps did not violate the 1 person, 1 vote rule.
This ruling without question has the same disenfranchising effect the congressional ruling had, possibly even worse.
The Wake county school board race has seen a healthy number of candidates filing. Time, energy and money have all been spent on races that may not happen.
Voters will be deprived of electing the representation they desire. Arguably, unless the legislature appeals and/or redraws the Wake maps, a Democrat majority school board and a completely Democrat held Board of Commissioners could remain in place for another term.
Current Wake county school board member, Susan Evans, decided to challenge Senator Tamara Barringer (R-Wake) as a result of the new map. Now that the map has been stricken, it looks like Evan’s may not even have been challenged at all.
The 4th Circuit Court of Appeals is also the same body that ruled the case of G.G. v. Gloucester County School Board could move forward.
That case involved Gavin Grimm, a girl who identifies as a boy, who sued the school district to gain access to opposite sex locker rooms and bathrooms. The district had made separate accommodations for Grimm at Title IX permits, but that wasn’t good enough.
The 4th Circuit cited the Obama administration’s Department of Education’s non-binding letter on trangender facilities access as the basis for their ruling.
Judge Neimeyer wrote a stinging dissent basically saying that the guidance from the Department of Education was based on interpretation, not actual law. Stating in his dissent that, “The recent Office for Civil Rights letter, moreover, which is not law but which is the only authority on which the majority relies, states more than the majority acknowledges.”
Neimeyer went on to point out that Title IX is not ambiguous, writing that, “Title IX and its implementing regulations are not ambiguous. In recognition of physiological privacy and safety concerns, they allow schools to provide “separate living facilities for the different sexes,” 20 U.S.C. § 1686, provided that the facilities are “proportionate” and “comparable,” 34 C.F.R. § 106.32(b), and to provide “separate toilet, locker room, and shower facilities on the basis of sex,” again provided that the facilities are “comparable,” 34 C.F.R. § 106.33.”
Read more about the G.G. v. Gloucester County School Board decision.