Thread by @lekhashupeck

Here at the Wake County Courthouse for a hearing in NC NAACP v. Berger, the procedural challenge to the new district maps #ncpol

.@scsj is requesting a preliminary injunction to delay the March primaries

Judge makes the point that until they are declared unconstitutional by a court the maps are presumed to be constitutional

Judge says that he has no authority to declare the maps to be unconstitutional

Judge asks why SCSJ didn't wait until maps were passed to evaluate whether or not the maps violated the constitution and then file

Judge asks why SCSJ has come to him - Stephenson is settled law, could have been used to evaluate maps after they are passed.

Judge says harm to plaintiffs doesn’t occur until the maps are passed.

SCSJ says that the legislature made no meaningful attempt to determine what the VRA requires

The judge is basically asking that if the harm was happening in the course of the process, why didn't SCSJ request a temporary restraining order at that time.

Judge is also seems to be asking why this is in state court when the VRA prevents the enforcement of discriminatory districts not their enactment (I think)

Judge is asking if this is really about Stephenson - if you create a map that doesn't follow Stephenson but still complies with the VRA etc. what harm is created

Judge asks what he's supposed to do with the maps - SCSJ says that the plaintiffs aren't asking for anything with respect to the maps.

SCSJ says that legislative defendants could take a judgement from this court and go back and act accordingly (ie redo the process in compliance with Stephenson)

SCSJ is asking for the court to provide urgent guidance on what Stephenson requires.

Judge asks if this is truly urgent when this is happening so long after the criteria was passed

SCSJ says part of the reason was that the legislature said they would consider any evidence of racially polarized voting / relevant to the VRA - we couldn't know if they truly had no intention to follow Stephenson until that was presented and rejected

SCSJ also says there was no announced schedule for the redistricting process, so there was no way to know when they would be enacted.

The judge says that they could have gotten into court quickly if they asked for a temporary restraining order.

SCSJ also says that the plaintiffs made serious efforts to resolve this outside of court and are also here in court before candidate filing opens

SCSJ is going through the letter and racially polarized voting study that they submitted to the legislature during the process

Now going through what Stephenson requires - that VRA districts be drawn before other districts, which was not done. Also by requiring all members to use county cluster templates they prevented any other members from drawing VRA districts first and complying with Stephenson

Judge again reiterates that there could be no harm until the maps are passed.

Plaintiffs are asking for a two month delay - which the NCSBE actually asked for earlier this year and which was the traditional timeline until recently

The judge says again that the violation of the plaintiffs rights doesn’t happen until the maps are passed

Judge says that the purpose of Stephenson was to harmonize the whole county provision and VRA requirements

SCSJ says this is why it's so important for the court to specify that Stephenson requires legislators to draw VRA districts first

Judge says that you could still comply with federal law by changing the maps after they were drawn. SCSJ says that that may be true of federal law but state law does require that they are drawn first via Stephenson

The judge asks if he grants relief when does SCSJ plan to attack the maps. SCSJ says that they hope that a decision from this court would lead legislative defendants to go back and redo the process in a way that complies with Stephenson

SCSJ says that there are several cases where our state Supreme Court has forced the legislature to follow a particular procedure

Judge is concerned that acceding to the plaintiffs requests would bring an onslaught of cases about legislative procedure

Judge says that the timing of filing deadlines etc won't impact the court's ruling in cases on the maps, there's no loophole for legislative defendants like that

Judge says process is important but the ultimate result is more important and that's not what's being attacked here.

SCSJ is done - recess until 11:30

We're back. Legislative defendants says plaintiffs are conflating legislative process and the actual drawing of districts

Judge asks whether Cooper v. Harris requires compliance with the VRA

Judge asks whether or not there is a duty to comply with the VRA. Legislative defendants say that there is but there's no requirement for any particular analysis be done.

Judge asks how the legislature can comply with the VRA without doing racial analysis - legislative defendants says something vague about how you can draw the maps and let people look at them???

Judge says he doesn't understand how you create a VRA districts first without looking at racial data. Legislative defendants say that Stephenson doesn't require that they be drawn first in time just in priority. They also say that no suit has said that the maps do not comply VRA

Legislative defendants say that VRA districts were not required due to the history of litigation. Judge says that litigation was based on 2010 data - logic says that the growth of the state would obviously change things - shouldn't we consider those demographics

Judge says - so you're saying that if you have a blindfold on and hit the target then you're in compliance? Legislative defendants basically say yes.

Judge asks again how they would know they are in compliance - legislative defendants say at this point the burden is on a plaintiff to sue if they believe the map is not in compliance

Judge asks if there's no burden of duty on the legislature to comply with the VRA. Legislative defendants say that the map has to comply but they don't have to undertake any particular process to get there.

Judge reads part of Stephenson dealing with VRA section 2

Judge says that the VRA prohibits the state from doing things that dilute the votes of minority voters. Legislative defendants say that it doesn't place any particular procedural obligations on the legislature - if there's a problem someone can sue.

Legislative defendants then say that since the maps have been passed plaintiffs should amend the complaint to deal with the maps. One judge shouldn't be allowed to complicate things like plaintiffs are asking.

SCSJ starts a rebuttal - says the interpretation of the legislative defendants is incorrect - the language is plain that VRA districts must be drawn first. Their view of Stephenson would make it merely advisory which it is not.

SCSJ says that in all prior redistricting processes VRA preclearance was still in place and courts weighing in before maps were enacted was common

Judge says preclearance still required maps to be enacted before they were evaluated by the DOJ

SCSJ says this is not a Section 2 case so plaintiffs don't have to analyze maps and fulfill Gingles requirements - this case is about what the state constitution requires

Judge asks if a legislature departs from Stephenson but maps comply with all legal requirements can a court make them redo the process? SCSJ says that's not the case here because there is actual harm to plaintiffs.

15 minute recess

We're back. Judge says that the preliminary injunction is asking the court to undo what has been done without attacking the validity of the maps - it's moot and judge is denying it.

Also says that as long as the maps have not been declared unconstitutional there is no harm so they are denying the request to delay the primaries.

Judge says that nothing he has said should be construed as a statement on the constitutionality or validity of the maps themselves.

Judge says an order will be drafted accordingly.