The Wake County Board of Elections will appeal a federal court ruling that tossed out the state legislature’s maps for the Wake Board of Commissioners and school board that were scheduled to be used in November.
In a 2-1 vote announced Wednesday, the election board will ask all 15 members of the 4th U.S. Circuit Court of Appeals to hear the case. The request will put on hold a July 1 ruling by a three-judge panel that declared the maps unconstitutional.
The full court could reverse the decision or decide not to hear the case.
The decision to contest the ruling comes as Wake election officials will start getting ballots ready on Aug. 10, with absentee ballots going in the mail Sept. 9.
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J. Brian Ratledge, chairman of the Wake board, said attorney Charles Marshall is expected to file the petition Thursday with the request that the 4th Circuit expedite the hearing.
“We’re in a jam no matter what we do,” Ratledge said.
The Wake elections board is the sole defendant in the lawsuit because it’s charged with implementing the state’s maps.
The decision to appeal, which came after a closed-session discussion with Marshall, was split along partisan lines. The Republican members, Ratledge and Ellis Boyle, voted to appeal, while Democrat Mark Ezzell voted no.
“I felt strongly that the 4th Circuit Court of Appeals opinion was the correct one, that it met the letter of the law, and that it was best for the Wake County taxpayers and for the voters to stop this lawsuit,” Ezzell said.
He noted that votes on the Wake elections board are almost always unanimous.
If the full 4th Circuit refuses to hear the case, the Wake board could appeal to the U.S. Supreme Court.
In 2013, the Republican-led General Assembly redrew the lines for all nine Wake school board seats, turning two into regional districts that each covers about half the county. In 2015, state legislators changed the Wake Board of Commissioners lines to match those used by the school board.
The Wake maps were changed after both boards flipped from Republican to Democratic majorities. Republican lawmakers denied that the changes were made for partisan reasons.
All nine school board seats and five Board of Commissioners seats are scheduled to be on the Nov. 8 ballot.
Left-leaning individuals and groups challenged the new Wake maps in court. In February, U.S. Chief District Court Judge James C. Dever III dismissed the lawsuit, ruling that the plaintiffs failed to show the new lines violated constitutional requirements.
But the appellate panel reinstated the lawsuit in a 2-1 decision, finding that the districts violated the “one person, one vote” principles in the U.S. Constitution.
“Rather than seeking proportional representation of the two main political parties, the evidence shows that the challenged plans under-populated Republican-leaning districts and over-populated Democratic-leaning districts in order to gerrymander Republican victories,” Judge James Wynn wrote in the majority opinion.
The panel ruled that the maps can’t be used but didn’t specify what to use instead this year.
The plaintiffs want election officials to reinstate the 2011 maps that the school board and commissioners had adopted before they were replaced by state legislators.
Last week, Dever issued an order saying he needs to know by Monday whether Senate leader Phil Berger, House Speaker Tim Moore and the State Board of Elections will come up with new maps. Dever said he’d draw up the maps if neither group is willing to do so.
Representatives for Berger and Moore said Wednesday that Dever’s request is being reviewed by attorneys. The General Assembly is not scheduled to return until January, so a special session would be needed to approve new Wake maps this year.
State election officials say they’re also still working on a response for Dever.
Dever also requested that the Wake County Board of Elections provide him by Monday with information on any upcoming deadlines and whether it’s feasible to hold a new primary election for Wake commissioners.
The Wake elections board voted to direct Marshall to comply with Dever’s order.
“We are going to do all that we have to in terms of complying to meet our timelines, meet our timetables, but without prejudicing our rights in the process as a board,” Ratledge said.