Buncombe County voters wait in line to cast primary ballots. Colby Rabon / Carolina Public Press

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Minutes before candidate filing for the 2022 races were set to open at noon Monday, a panel for the N.C. Court of Appeals stopped the process for N.C. Senate, House and congressional hopefuls. Then, late Monday afternoon, the majority of the Court of Appeals voted to restart the process. 

As of Tuesday morning, congressional and state legislative candidates can file to run for office in 2022. 

The first Court of Appeals order was triggered by an appeal from the N.C. League of Conservation Voters, which filed a lawsuit Nov. 16 challenging the political maps drawn and approved by the North Carolina’s legislature. 

On Friday, a three-judge panel of Superior Court judges, consisting of two Republicans and a Democrat, unanimously ruled against delaying candidate filing and the primaries. Though the presiding judge, Graham Shirley, said gerrymandering “results in an ill that has affected this country and state since Colonial days,” the panel ruled that politically gerrymandered maps are not in violation of the state constitution. 

The panel denied intervention in two cases at the same time. The other, brought by the National Redistricting Foundation, an affiliate of the National Democratic Redistricting Committee, made similar arguments and also requested the election be delayed so the legislature could draw new political maps. 

By Friday night, both the League of Conservation Voters and the foundation filed intentions to appeal. Both groups appealed directly to the N.C. Supreme Court, but only the league plaintiffs also filed with the N.C. Court of Appeals. That is what resulted in the stay of candidate filing, which the court later reversed. 

The Court of Appeals will rule on the league’s appeal en banc, meaning all the judges on the court will vote on a decision. Ten Republicans and five Democrats currently sit on the court. 

Though the initial order from the Court of Appeals said the decision on the appeal will come Thursday, the en banc order does not set a timeline for making a decision, though says it will do so “promptly.” 

In a statement, the foundation said the confusion at the Court of Appeals was all the more reason for the N.C. Supreme Court to pick up the case quickly. 

The foundation’s appeal asked the Supreme Court to hear the matter in an expedited fashion in lieu of the Court of Appeals, given the urgency and importance of the case, according to the filing. 

In its appeal, the foundation criticized the legislature for failing to delay the primaries, despite U.S. census delays caused by the pandemic: “The Republican-controlled General Assembly sat on its hands: It postponed certain municipal elections but refused to do the same for the congressional primary date in order to leave less time for legal challenges to the gerrymandered congressional districts.” 

The League of Conservation Voters plaintiffs raised similar concerns in their appeal, noting North Carolina as an outlier nationwide in holding primaries in the early spring.  “Forty-eight states have 2022 primaries scheduled in May or later,” the petition said. 

In his response, Phil Strach, a private attorney the Republican legislative leadership hired to defend the cases, balked at the time frame for the decision. The plaintiffs filed at 9 a.m. concerning a noon opening, he wrote. “That does not even afford this court sufficient time to read their filing, much less any other party time to respond in an informative way.” 

The defendants maintain the trial court judges were correct in their assessment and that the plaintiffs “are unlikely to establish discriminatory intent — an essential element to any arguably cognizable claim of so-called ‘partisan gerrymandering.’”

The plaintiffs contend that although Republican leaders claimed the process was without partisan influence, “the prohibition on partisan considerations was a farce.” 

“While legislators drew and submitted maps using software on computer terminals in the redistricting committee hearing rooms, Legislative Defendants chose not to prohibit legislators from simply bringing political data — or maps drawn by political consultants using political data — with them into the map-drawing room, even after they were specifically asked to ban this practice,” the petition read. 

In Friday’s order, the trial judges said the League of Conservation Voters plaintiffs lacked standing because they did not show their “own districts would shift from Republican-leaning to Democratic-leaning under a different configuration or that they are prevented from electing their candidates of choice.” 

In their petition with the Court of Appeals, the league plaintiffs said the trial court was incorrect about the residence of the petitioners and that the organization represents voters in all districts who might be harmed by the new maps. 

They also petitioned the Supreme Court to disqualify one of the justices, Republican Phil Berger Jr. from hearing the case. Berger’s father, Phil Berger, is the president pro tem of the N.C. Senate and one of the defendants in the case.  

The N.C. State Board of Elections is also named as a defendant in the case, as that is the body that administers statewide elections in North Carolina. The board hasn’t made any arguments for or against the maps and instead is telling the court how the elections will be affected if the courts delay the primaries, currently scheduled for March 8.

Whatever decision the courts make on postponing the primaries to redraw maps, or not, the board asked that it affect all elections equally. The board wants to avoid running county-level races in March, which are unaffected by the redistricting lawsuits, then running the state legislative and congressional elections later in the year, according to their court filings. 

Jordan Wilkie

Jordan Wilkie is a Report for America corps member and is the lead contributing reporter covering election integrity, open government, and civil liberties for Carolina Public Press. Email jwilkie@carolinapublicpress.org to contact him.