4th Circuit rejects en banc hearing in NC Senate redistricting case

The full 4th US Circuit Court of Appeals will not hold an initial en banc hearing in a redistricting dispute involving two state Senate districts in northeastern North Carolina.

A three-sentence order filed Dec. 22 indicated that no 4th Circuit judge requested a poll of the court. The poll would have determined whether all eligible judges should hear the case, rather than following the 4th Circuit’s standard procedure of assigning the dispute to a three-judge panel.

In a separate order, the court set a Feb. 2 deadline for the opening brief in the case. A response brief is due March 2. No oral arguments have been scheduled.

Plaintiffs Rodney Pierce and Moses Matthews challenged the Senate districts. They filed an Oct. 6 petition requesting the initial en banc hearing along with an expedited review of the case. Republican state legislative leaders defending the districts opposed the en banc hearing.

Appellate judges appointed by Democratic presidents outnumber those appointed by Republicans on the 4th Circuit.

Candidate filing ended Dec. 19 for 2026 elections in the disputed Districts 1 and 2. Four Republicans — Dave Forsythe, Cole Johnson, Jay Lane, and Jerry Tillett — are vying for the Republican nomination in the open District 1 race. The winner of the March GOP primary will face Democrat Melissa Zehner in November. In District 2, incumbent Republican Sen. Norman Sanderson faces Democrat Roy Surrett.

US District Judge James Dever upheld the districts on Sept. 30. He rejected the plaintiffs’ arguments that the districts violated federal restrictions against racial gerrymandering.

“This exceptionally important and time-sensitive appeal presents a paradigmatic occasion for expedited initial hearing en banc under Federal Rule of Appellate Procedure 40(g),” the plaintiffs’ lawyers wrote in their 4th Circuit petition.

“It would be difficult to imagine an appeal less suited for initial hearing en banc than this one,” legislative leaders’ lawyers responded the following week.

The state Senate map split northeastern North Carolina’s “Black Belt” of voters, according to the plaintiffs’ court filing. “It cracked the Black population across Senate Districts 1 and 2, leaving each with roughly 30% Black voting-age population.”

“Yet the district court denied relief,” the plaintiffs’ lawyers wrote. Dever’s “radical” ruling would “gut” Section 2 of the federal Voting Rights Act.

Dever found “that plaintiffs have failed to prove their Section 2 claim,” he wrote in his 126-page September order. “Thus, the General Assembly need not use the odious practice of sorting voters based on race or the ‘politics of second best’ to create a majority-black Senate district in northeast North Carolina.”

Dever had conducted a five-day trial in the case in February.

“As the Supreme Court observed in De Grandy 31 years ago, ‘for all the virtues of majority-minority districts as remedial devices, they rely on a quintessentially race-conscious calculus aptly described as the politics of second best,’” he wrote, citing the 1994 court precedent Johnson v. DeGrandy.

The order also referenced a 1986 precedent. “’If the lesson of [Thomburg v.] Gingles … is that society’s racial and ethnic cleavages sometimes necessitates majority-minority districts to ensure equal political and electoral opportunity, that should not obscure the fact that there are communities in which minority citizens are able to form coalitions with voters from other racial and ethnic groups, having no need to be a majority within a single district in order to elect candidates of their choice,’” Dever wrote.

“The record in this case demonstrates that the communities in northeast North Carolina at issue in this case are such communities,” the judge explained. “Likewise, communities throughout North Carolina are such communities.”

“It is not 1965 or 1982 in North Carolina. It is 2025,” he wrote. “Due in part to societal progress on race and due in part to the VRA, North Carolina is a very different state politically and socially than it was in 1965 or 1982. Black voters in northeast North Carolina and throughout North Carolina have elected candidates of their choice (both white and black) with remarkable frequency and success for decades. Black elected officials in North Carolina are at or near-parity with their share of the statewide population.”

“4th Circuit rejects en banc hearing in NC Senate redistricting case” was originally published on www.carolinajournal.com.