STATE OF NORTH CAROLINA
COUNTY OF WAKE

IN THE GENERAL COURT OF JUSTICE
SUPERIOR COURT DIVISION
Docket No. _______________

REBECCA HARPER; AMY CLARE
OSEROFF; DONALD RUMPH; JOHN
BALLA; RICHARD R. CREWS; LILY
NICOLE QUICK; GETTYS COHEN JR.;
SHAWN RUSH; JACKSON THOMAS
DUNN, JR.; MARK S. PETERS; JOSEPH
THOMAS GATES; KATHLEEN BARNES;
VIRGINIA WALTERS BRIEN; DAVID
DWIGHT BROWN,
Plaintiffs,
v.
REPRESENTATIVE DAVID R. LEWIS, IN
HIS OFFICIAL CAPACITY AS SENIOR
CHAIR OF THE HOUSE STANDING
COMMITTEE ON REDISTRICTING;
RALPH HISE, IN HIS OFFICIAL
CAPACITY AS CO-CHAIR OF THE
SENATE STANDING COMMITTEE ON
REDISTRICTING; WARREN DANIEL, IN
HIS OFFICIAL CAPACITY AS CO-CHAIR
OF THE SENATE STANDING
COMMITTEE ON REDISTRICTING; PAUL
NEWTON, IN HIS OFFICIAL CAPACITY
AS CO-CHAIR OF THE SENATE
STANDING COMMITTEE ON
REDISTRICTING; SPEAKER OF THE
NORTH CAROLINA HOUSE OF
REPRESENTATIVES TIMOTHY K.
MOORE; PRESIDENT PRO TEMPORE OF
THE NORTH CAROLINA SENATE PHILIP
E. BERGER; THE NORTH CAROLINA
STATE BOARD OF ELECTIONS; DAMON
CIRCOSTA, IN HIS OFFICIAL CAPACITY
AS CHAIRMAN OF THE NORTH
CAROLINA STATE BOARD OF

VERIFIED COMPLAINT
(Three-Judge Court Pursuant to
N.C. Gen. Stat § 1-267.1)

 ELECTIONS; STELLA ANDERSON, IN
HER OFFICIAL CAPACITY AS
SECRETARY OF THE NORTH CAROLINA
STATE BOARD OF ELECTIONS;
KENNETH RAYMOND, IN HIS OFFICIAL
CAPACITY AS MEMBER OF THE NORTH
CAROLINA STATE BOARD OF
ELECTIONS; JEFF CARMON, IN HIS
OFFICIAL CAPACITY AS MEMBER OF
THE NORTH CAROLINA STATE BOARD
OF ELECTIONS; DAVID C. BLACK, IN HIS
OFFICIAL CAPACITY AS MEMBER OF
THE NORTH CAROLINA STATE BOARD
OF ELECTIONS,
Defendants.

 Plaintiffs, complaining of Defendants, say and allege:
INTRODUCTION
1.

“[T]he constitutional rights of North Carolina citizens are infringed when the

General Assembly . . . draws district maps with a predominant intent to favor voters aligned with
one political party at the expense of other voters.” Common Cause v. Lewis, 18-CVS-014001,
slip. op. at 6 (N.C. Sup. Ct. Sept. 3, 2019). Partisan gerrymandering “strikes at the heart of the
Free Elections Clause” of North Carolina’s Constitution, a provision with no federal analogue
that “guarantees that all elections must be conducted freely and honestly to ascertain, fairly and
truthfully, the will of the People.” Id. at 9, 305. Partisan gerrymandering also violates the North
Carolina Constitution’s guarantees of equal protection and free expression, both of which
provide broader protections for voting rights than their federal counterparts. Id. at 307-31.
2.

This case concerns North Carolina’s 2016 congressional map, which may be the

most extreme and brazen partisan gerrymander in American history. There is no dispute that the
2016 congressional map reflects an extreme and intentional effort to maximize Republican
advantage. Legislative Defendants proudly admitted it at the time. They adopted “Partisan
Advantage” as an official criterion, directing that the districts be constructed to “maintain the
current partisan makeup of North Carolina’s congressional delegation,” namely “10 Republicans
and 3 Democrats.” Legislative Defendants admitted that they instructed their mapmaker, Dr.
Thomas Hofeller, to use partisan voting histories to rig the district lines to entrench a 10-3
Republican advantage. Defendant Representative David Lewis asserted that the map was drawn
in this manner because he believes “electing Republicans is better than electing Democrats,” and
the only reason Legislative Defendants sought a 10-3 Republican advantage was because they
“did not believe it would be possible to draw a map with 11 Republicans and 2 Democrats.”

 3.

With Dr. Hofeller’s help, Legislative Defendants succeeded in rigging North

Carolina’s congressional elections. Republicans have won 10 of 13 seats in both elections under
the 2016 Plan, including in the blue wave of 2018 when Democratic congressional candidates
received a majority of the statewide vote after adjusting for an uncontested race. The 2016 map
is impervious to “the will of the People.” Common Cause, 18-CVS-014001, slip. op. at 9, 306.
4.

In 2019, in a case involving the same congressional map at issue here, the U.S.

Supreme Court held that partisan gerrymandering claims are not justiciable under the federal
constitution. See Rucho v. Common Cause, 139 S. Ct. 2484 (2019). But in so holding, the Court
made clear that the solution to partisan gerrymandering lies with the states, because “[p]rovisions
in state statutes and state constitutions can provide standards and guidance for state courts to
apply.” Id. at 2507. The courts of this State have now held that the North Carolina Constitution
provides precisely such standards and guidance. Just weeks ago, a three-judge panel of this
Court invalidated North Carolina’s state legislative maps as unlawful partisan gerrymanders in
violation of North Carolina’s Free Elections Clause, Equal Protection Clause, and Freedom of
Speech and Assembly Clauses. See Common Cause, 18-CVS-014001, slip. op. at 298-331.
5.

As this Court explained in Common Cause v. Lewis, North Carolina’s 2016

congressional map “arose in remarkably similar circumstances” as the state legislative maps that
the Court struck down and ordered redrawn. Id. at 298. The 2016 congressional map should
now meet the same fate as the unconstitutional and invalidated state legislative maps. The facts
of this case are undisputed, and the law of North Carolina is now settled. This Court should
invalidate the gerrymandered 2016 congressional map immediately and order a new, fair map for
use in the 2020 elections.

2

 PARTIES
A.

Plaintiffs

6.

Plaintiff Amy Clare Oseroff is a teacher residing in Greenville, North Carolina,

within Congressional District 1. Ms. Oseroff is a registered Democrat who has consistently
voted for Democratic candidates for the U.S. House of Representatives. The General Assembly
packed the most heavily Democratic areas in Pitt County and Wilson County into District 1 to
create an overwhelmingly Democratic district, ensuring that nearby Districts 2 and 3 would favor
Republicans. In 2018, the Democratic candidate won District 1 with almost 70% of the vote.
7.

Plaintiff Rebecca Harper is a real estate agent residing in Cary, North Carolina,

within Congressional District 2. Ms. Harper is a registered Democrat who has consistently voted
for Democratic candidates for the U.S. House of Representatives. The General Assembly
carefully avoided the most Democratic areas of Wake County and Wilson County and cracked
the Democratic voters of Johnston County to create a district that favors Republicans. In 2018,
the Republican candidate won District 2 with nearly 53% of the vote.
8.

Plaintiff Donald Rumph is an Army and Air Force combat veteran and retired

registered nurse residing in Greenville, North Carolina, within Congressional District 3.
Mr. Rumph is a registered Democrat who has consistently voted for Democratic candidates for
the U.S. House of Representatives. District 3 is a Republican district because the General
Assembly packed the most Democratic voters from Pitt County into the adjoining District 1. In
2018, the Republican candidate ran unopposed.
9.

Plaintiff John Balla is a digital marketing strategist residing in Raleigh, North

Carolina, within District 4. Mr. Balla is a registered Democrat who has consistently voted for
Democratic candidates for the U.S. House of Representatives. District 4 is a packed Democratic

3

 district that uses a strip of southern Durham County to connect Wake County’s most Democratic
areas with the heavily Democratic areas in Orange County. In 2018, the Democratic candidate
won District 4 with over 75% of the vote.
10.

Plaintiff Richard R. Crews is a retired stock broker residing in Newland, North

Carolina, within Congressional District 5. Mr. Crews is a registered Democrat who has
consistently voted for Democratic candidates for the U.S. House of Representatives. District 5
cracks Democratic voters in Forsyth County, connecting them with more Republican
communities in Winston-Salem rather than grouping them with neighboring Guilford County. In
2018, the Republican candidate won District 5 with over 57% of the vote.
11.

Plaintiff Lily Nicole Quick is a homemaker residing in Greensboro, North

Carolina, within Congressional District 6. Ms. Quick is a registered Democrat who has
consistently voted for Democratic candidates for the U.S. House of Representatives. The
General Assembly cracked District 6 by splitting Greensboro and Guilford County to ensure that
District 6 would favor Republicans. In 2018, the Republican candidate won District 6 with just
over 56% of the vote.
12.

Plaintiff Gettys Cohen Jr. is a dentist residing in Smithfield, North Carolina,

within Congressional District 7. Dr. Cohen is a registered Democrat who has consistently voted
for Democratic candidates for the U.S. House of Representatives. The General Assembly
cracked Democratic voters in District 7, in part by splitting Johnston County’s Democratic voters
and Bladen County’s most Democratic voters. In 2018, the Republican candidate won District 7
with over 56% of the vote.
13.

Plaintiff Shawn Rush is part owner of a marketing firm and a Meals on Wheels

organizer residing in East Spencer, North Carolina, within Congressional District 8. Mr. Rush is

4

 a registered Democrat who has consistently voted for Democratic candidates for the U.S. House
of Representatives. The General Assembly manipulated District 8 by cracking Fayetteville’s
Democratic voters between Districts 8 and 9. In 2018, the Republican candidate won with
roughly 55% of the vote.
14.

Plaintiff Jackson Thomas Dunn, Jr. is a retired attorney and law professor residing

in Charlotte, North Carolina, within Congressional District 9. Mr. Dunn is a registered Democrat
who has consistently voted for Democratic candidates for the U.S. House of Representatives. As
with District 8, the General Assembly manipulated District 9 to be as favorable as possible for
Republicans, with the Republican candidate winning by two percentage points in the 2019
special election in this district.
15.

Plaintiff Mark S. Peters is a retired physician assistant residing in Fletcher, North

Carolina, within Congressional District 10. Mr. Peters is registered as an unaffiliated voter and
has consistently voted for Democratic candidates for the U.S. House of Representatives. In
drawing the 2016 maps, the General Assembly cracked Asheville’s Democratic voters between
Districts 10 and 11 to make each district more favorable to Republican candidates. In the 2018
elections, the Republican candidate won District 10 with over 59% of the vote.
16.

Plaintiff Joseph Thomas Gates is a former Colonel in the Air Force and a retired

information technology project manager residing in Weaverville, North Carolina, within
Congressional District 11. Mr. Gates is a registered unaffiliated voter who has consistently voted
for Democratic candidates for the U.S. House of Representatives. As explained above, the
General Assembly made District 11 as favorable as possible for Republicans by cracking
Democratic voters between Districts 10 and 11. In 2018, the Republican candidate won District
11 with over 60% of the vote.

5

 17.

Plaintiff Kathleen Barnes is the owner of a small publishing company residing in

Brevard, North Carolina, within Congressional District 11. Ms. Barnes is a registered Democrat
who has consistently voted for Democratic candidates for the U.S. House of Representatives. As
explained above, the General Assembly made District 11 as favorable as possible for
Republicans by cracking Democratic voters between Districts 10 and 11. In 2018, the
Republican candidate won District 11 with over 60% of the vote.
18.

Plaintiff Virginia Walters Brien is a sales manager residing in Charlotte, North

Carolina, within Congressional District 12. Ms. Brien is a registered unaffiliated voter who has
consistently voted for Democratic candidates for the U.S. House of Representatives. District 12
is a packed Democratic district. In 2018, the Democratic candidate won District 12 with over
73% of the vote.
19.

Plaintiff David Dwight Brown is a retired computer systems analyst residing in

Greensboro, North Carolina, within Congressional District 13. Mr. Brown is a registered
Democrat who has consistently voted for Democratic candidates for the U.S. House of
Representatives. The General Assembly ensured that Republicans were favored in District 13 by
cracking the Guilford County Democratic voters and grouping them with overwhelmingly
Republican voters in nearby counties. In 2018, the Republican candidate won District 13 with
over 53% of the vote.
B.

Defendants

20.

Defendant David R. Lewis is a member of the North Carolina House of

Representatives and currently serves as the Senior Chair of the House Standing Committee on
Redistricting. In 2016, Representative Lewis served as Chairman of the North Carolina House

6

 Redistricting Committee for the 2016 Extra Session and Co-Chairman of the Joint Select
Committee on Congressional Redistricting. Defendant Lewis is sued in his official capacity only.
21.

Defendant Ralph E. Hise, Jr. is a member of the North Carolina Senate and

currently serves as a co-Chair of the Senate Standing Committee on Redistricting. Defendant
Hise is sued in his official capacity only.
22.

Defendant Warren Daniel is a member of the North Carolina Senate and currently

serves as a co-Chair of the Senate Standing Committee on Redistricting. Defendant Daniel is
sued in his official capacity only.
23.

Defendant Paul Newton is a member of the North Carolina Senate and currently

serves as a co-Chair of the Senate Standing Committee on Redistricting. Defendant Newton is
sued in his official capacity only.
24.

Defendant Timothy K. Moore is the Speaker of the North Carolina House of

Representatives. Defendant Moore is sued in his official capacity only.
25.

Defendant Philip E. Berger is the President Pro Tempore of the North Carolina

Senate. Defendant Berger is sued in his official capacity only.
26.

Defendant North Carolina State Board of Elections is an agency responsible for

the regulation and administration of elections in North Carolina.
27.

Defendant Damon Circosta is the Chair of the North Carolina State Board of

Elections. Mr. Circosta is sued in his official capacity only.
28.

Defendant Stella Anderson is the Secretary of the North Carolina State Board of

Elections. Ms. Anderson is sued in her official capacity only.
29.

Defendant Ken Raymond is a member of the North Carolina State Board of

Elections. Mr. Raymond is sued in his official capacity only.

7

 30.

Defendant Jeff Carmon III is a member of the North Carolina State Board of

Elections. Mr. Carmon is sued in his official capacity only.
31.

Defendant David C. Black is a member of the North Carolina State Board of

Elections. Mr. Black is sued in his official capacity only.
JURISDICTION AND VENUE
32.

This Court has jurisdiction of this action pursuant to Articles 26 and 26A of

Chapter 1 of the General Statutes.
33.

Under N.C. Gen. Stat. § 1-81.1, the exclusive venue for this action is the Wake

County Superior Court.
34.

Under N.C. Gen. Stat. § 1-267.1, a three-judge court must be convened because

this action challenges the validity of redistricting plans enacted by the General Assembly.
FACTUAL ALLEGATIONS
A.

National Republican Party Officials Target North Carolina for Partisan
Gerrymandering Prior to the 2010 Elections

35.

In the years leading up to the 2010 decennial census, national Republican leaders

undertook a sophisticated and concerted effort to gain control of state governments in 13 critical
swing states such as North Carolina. The Republican State Leadership Committee (RSLC) codenamed the plan “the REDistricting Majority Project” or “REDMAP.” REDMAP’s goal was to
“control[] the redistricting process in . . . states [that] would have the greatest impact on
determining how both state legislative and congressional district boundaries would be drawn”
after the 2010 census. The RSLC’s REDMAP website explained that fixing these district lines in
favor of Republicans would “solidify conservative policymaking at the state level and maintain a
Republican stronghold in the U.S. House of Representatives for the next decade.”

8

 36.

North Carolina was a key REDMAP “target state.” REDMAP aimed to flip both

chambers of the North Carolina General Assembly from Democratic to Republican control.
37.

To spearhead its efforts in North Carolina, the RSLC enlisted the most influential

conservative donor in North Carolina, Art Pope. Together, the RSLC and Pope targeted 22 races
in the North Carolina House and Senate. Pope helped create a new non-profit organization
called “Real Jobs NC” to finance spending on the races, and the RSLC donated $1.25 million to
this new group. Pope himself made significant contributions; in total, Pope, his family, and
groups backed by him spent $2.2 million on the 22 targeted races. This represented threequarters of the total spending by all independent groups in North Carolina on the 2010 state
legislative races.
38.

The money was well spent. Republicans won 18 of the 22 races the RSLC

targeted, giving Republicans control of both the House and Senate for the first time since 1870.
B.

Republican Mapmakers Create the 2011 Plan from Party Headquarters
With the Intent to Advantage Republicans and Disadvantage Democrats

39.

Following the 2010 election, the House and Senate each established redistricting

committees that were jointly responsible for preparing a congressional redistricting plan.
Representative David Lewis, in his capacity as the Senior Chair of the House Redistricting
Committee, and Senator Robert Rucho, in his capacity as Senior Chair of the Senate
Redistricting Committee, were responsible for developing the proposed congressional districting
plan (the “2011 Plan”).
40.

The House and Senate Redistricting Committees engaged Dr. Thomas Hofeller,

who also served on a REDMAP redistricting team , to draw the 2011 Plan. Dr. Hofeller and his
team drew the 2011 Plan at the North Carolina Republican Party headquarters in Raleigh using
mapmaking software licensed by the North Carolina Republican Party.

9

 41.

Legislative Defendants did not make Dr. Hofeller available to Democratic

members of the General Assembly during the 2011 redistricting process, nor did Dr. Hofeller
communicate with any Democratic members in developing the 2011 Plan.
42.

Representative Lewis and Senator Rucho, both Republicans, orally instructed Dr.

Hofeller regarding the criteria he should follow in drawing the new plan. Dr. Hofeller later
testified that the Committee Chairs instructed him to “create as many districts as possible in
which GOP candidates would be able to successfully compete for office.” Deposition of Thomas
Hofeller (“Hofeller Dep.”) at 123:8-23 (Jan. 24, 2017). Following these instructions, Dr.
Hofeller sought to “minimize the number of districts in which Democrats would have an
opportunity to elect a Democratic candidate.” Hofeller Dep. at 123:1-7. Dr. Hofeller consulted
“political voting history” as reflected in “past election results,” which he testified is “the most
important information in trying to give one party or the other a partisan advantage in the
redistricting process,” because it is “the best predictor of how a particular geographic area is
likely to vote” in future elections. Hofeller Dep. at 14:7-15:14, 16:8-12, 132:14-134:13.
43.

Dr. Hofeller sought to minimize the opportunities for Democratic voters to elect

Democratic representatives by using past election data to concentrate as many Democratic voters
as possible into Congressional Districts 1, 4, and 12. See Hofeller Dep. at 127:19-128:6. In his
testimony, Dr. Hofeller admitted that the resulting 2011 Plan “diminished the opportunity to
elect a Democratic candidate in the districts in which [he] increased Republican voting strength.”
See Hofeller Dep. at 128:17-21.
44.

The scheme worked. North Carolina conducted two congressional elections using

the 2011 Plan, both of which handed outsized power to Republican congressional candidates. In
2012, Republicans won a minority of the statewide congressional vote but won 9 of the 13 seats.

10

 Year

2012
2014

C.

45.

North Carolina State-Wide
Votes in U.S. House Elections
Percentage of
Percentage of
Votes Received Votes Received
by Democratic
by Republican
Congressional
Congressional
Candidates
Candidates
51%
49%
46%

54%

Representatives Elected to U.S.
House for North Carolina
Percentage of
Percentage of
Seats Won by
Seats Won by
Democratic
Republican
Congressional
Congressional
Candidates
Candidates
31% (4 of 13)
69% (9 of 13)
23% (3 of 13)

77% (10 of 13)

Legislative Defendants Create the 2016 Plan with the Explicit Partisan Goal
of Guaranteeing a 10-3 Republican Advantage in Congressional Seats
On February 5, 2016, a three-judge federal district court struck down the 2011

Plan as racially gerrymandered in violation of the Fourteenth Amendment’s Equal Protection
Clause. See Harris v. McCrory, 159 F. Supp. 3d 600 (M.D.N.C. 2016). The Court ordered the
General Assembly to draw a new congressional map.
46.

At that time, Republicans held supermajority control of both chambers of the

North Carolina General Assembly, and thus had the power to draw the new congressional district
lines unilaterally. Representative Lewis and Senator Rucho again took charge of the mapmaking
process, and again engaged Dr. Hofeller to draw the remedial congressional plan.
47.

On February 9, 2016, in a meeting at Dr. Hofeller’s home, Representative Lewis

and Senator Rucho gave Dr. Hofeller oral instructions regarding the criteria he should use in
drawing the remedial plan, directing him to use political data to create the new districts. This
political data included precinct-level election results from all statewide elections, excluding
presidential elections, dating back to January 1, 2008. Representative Lewis and Senator Rucho
specifically instructed Dr. Hofeller to use this partisanship data to draw a map that would ensure
10 Republican seats and 3 Democratic seats. See Deposition of Representative David Lewis

11

 (“Lewis Dep.”) at 162:24-163:7, 166:13-169:1 (Jan. 26, 2017); Hofeller Dep. at 175:19-23,
178:14-20, 188:19-190:2.
48.

Working on his personal computer, Dr. Hofeller sought to achieve Representative

Lewis and Senator Rucho’s partisan objectives through the use of a partisanship formula he
created to score every voting tabulation district (VTD) in North Carolina. Dr. Hofeller’s
partisanship formula measured the average Democratic and Republican vote share in each VTD
across the following seven statewide elections: the 2008 Gubernatorial, U.S. Senate, and
Commissioner of Insurance elections; the 2010 U.S. Senate election; the 2012 Gubernatorial and
Commissioner of Labor elections; and the 2014 U.S. Senate election.
49.

Dr. Hofeller testified that he used the averaged results from these seven elections

“to get a pretty good cross section of what the past vote had been,” Hofeller Dep. at 212:16213:9, and “[t]o give [him] an indication of the two-party partisan characteristics of VTDs,”
Deposition of Thomas Hofeller (“Hofeller Dep. II”) at 267:5-6 (Feb. 10, 2017). Dr. Hofeller said
that “he had drawn numerous plans in the state of North Carolina over decades,” and that in his
experience, “the underlying political nature of the precincts in the state does not change no
matter what race you use to analyze it.” Trial Testimony of Thomas Hofeller (“Hofeller
Testimony”) at 525:6-10, Common Cause v. Rucho, No. 1:13-cv-949, 2018 WL 421334
(M.D.N.C. Sept. 4, 2018), vacated by Rucho v. Common Cause, 139 S. Ct. 2484 (2019); see
Hofeller Dep. at 149:5-18. “So once a precinct is found to be a strong Democratic precinct,” Dr.
Hofeller explained, “it’s probably going to act as a strong Democratic precinct in every
subsequent election. The same would be true for Republican precincts.” Hofeller Testimony at
525:14-17.

12

 50.

As he drew the district lines in the Maptitude software program, Dr. Hofeller

color-coded VTDs on his screen based on his partisanship formula. Dr. Hofeller admitted that he
used this partisan color-coding to guide him in assigning VTDs “to one congressional district or
another,” using red to show VTDs where voter history data was “the most Democratic” and dark
blue for areas that were “the most Republican.” Hofeller Dep. at 102:14-104:22, 106:23-107:1.
He further admitted that he similarly used his partisanship formula to assess the partisan
performance of draft plans as a whole. Hofeller Dep. II at 282:1-7.
51.

Dr. Hofeller testified that he conveyed to Representative Lewis his assessment of

the partisan performance of districts for which the partisan result wasn’t “really obvious.”
Hofeller Dep. II at 290:17-25. Representative Lewis admitted in sworn testimony that “[n]early
every time” he reviewed Dr. Hofeller's draft plans, Representative Lewis assessed the plans’
partisan performance using the results from North Carolina’s 2014 Senate race between Senator
Thom Tillis and former Senator Kay Hagan, because it was “in [his] mind the closest political
race with equally matched candidates who spent about the same amount of money.” Lewis Dep.
at 63:9-64:17.
52.

Both Representative Lewis and Dr. Hofeller admitted that Dr. Hofeller had nearly

finished drawing the final 2016 Plan before the House and Senate Redistricting Committees ever
met, and that Dr. Hofeller pre-drew the plan with express partisan intent. Dr. Hofeller recalled
that “the plan was actually brought into a form to be presented to the legislature long before
[February] 16th.” Hofeller Dep. at 175:10-18. Indeed, on February 10, 2016, Dr. Hofeller met
with Representative Lewis and Senator Rucho and showed them several draft plans. Lewis Dep.
at 58:13-61:17. Representative Lewis visited Dr. Hofeller’s house several more times over the
next few days to review additional draft plans. Id. at 73:7-74:7, 77:7-20.

13

 53.

The maps Representative Lewis reviewed with Dr. Hofeller over the three days

following the February 10 meeting were “near-final versions of the 2016 map” that
Representative Lewis intended to submit to the legislature for approval. Lewis Dep. at 77:7-20.
Dr. Hofeller and Representative Lewis agreed on a draft plan on either February 12 or 13, 2016.
Id. That plan was “ultimately adopted with a minor distinction for an incumbency issue.” Id. at
77:21-24.
54.

On February 12, 2016, after the 2016 Plan was already nearly finished, the

Republican leadership of the General Assembly appointed Representative Lewis and Senator
Rucho as co-chairs of the newly formed Joint Select Committee on Redistricting (the “Joint
Committee”). The Joint Committee consisted of 25 Republicans and 12 Democrats.
55.

The Joint Committee held a public hearing on February 15, 2016. But because

Dr. Hofeller finished drawing the 2016 Plan before the hearing took place, the final plan did not
reflect any public input.
56.

At a meeting on February 16, 2016, the Joint Committee adopted a set of criteria

(the “2016 Adopted Criteria”) to govern the creation of the 2016 Plan.
57.

The Joint Committee adopted “Partisan Advantage” as one official criterion. This

criterion required the new plan to preserve Republicans’ existing 10-3 advantage in North
Carolina’s congressional delegation. The criterion read as follows:
Partisan Advantage: The partisan makeup of the congressional delegation under the
enacted plan is 10 Republicans and 3 Democrats. The Committee shall make reasonable
efforts to construct districts in the 2016 Contingent Congressional Plan to maintain the
current partisan makeup of North Carolina’s congressional delegation.
58.

In explaining this Partisan Advantage criterion, Representative Lewis proposed

that the Committee “draw the maps to give a partisan advantage to 10 Republicans and 3

14

 Democrats because I do not believe it’s possible to draw a map with 11 Republicans and 2
Democrats.” Joint Comm. Session, Feb. 16, 2016, at 50:6-10.
59.

Representative Lewis “acknowledge[d] freely that this would be a political

gerrymander.” Id. at 48:4-5.
60.

The Joint Committee adopted “Political Data” as another criterion, which stated:

Political Data: The only data other than population data to be used to construct
congressional districts shall be election results in statewide contests since January 1,
2008, not including the last two presidential contests. Data identifying the race of
individuals or voters shall not be used in the construction or consideration of districts in
the 2016 Contingent Congressional Plan. Voting districts (“VTDs”) should be split only
when necessary to comply with the zero deviation population requirements set forth
above in order to ensure the integrity of political data.
61.

Representative Lewis left no doubt as to how this political data would be used,

telling the Joint Committee members he “want[ed] to make clear that to the extent [we] are going
to use political data in drawing this map, it is to gain partisan advantage on the map. I want that
criteria to be clearly stated and understood.” Joint Comm. Session, Feb. 16, 2016, at 53:24-54:4.
62.

The remaining criteria adopted by the Joint Committee were to provide for equal

population, to make the districts contiguous, to eliminate the then-current configuration of
District 12, to improve the compactness of the existing districts, to keep more counties and
VTDs whole than the existing districts, and to avoid pairing incumbents.
63.

The Joint Committee adopted the Political Data and Partisan Advantage criteria

on a party-line vote. The other criteria were passed on a bipartisan basis. Representative Lewis
reassured the Committee that “the criteria that will be available to the mapmaker . . . will only be
the criteria that this . . . committee has adopted,” id. at 140:8-13, despite knowing that the 2016
Plan was “for the most part finished by the time the criteria were formally adopted by the
committee,” Hofeller Dep. at 177:9-14. He later emphasized that “the criteria that this

15

 committee debated and adopted . . . are the criteria that were used to draw these maps.” Joint
Comm. Session, Feb. 17, 2016, at 43:4-14 (emphasis added).
64.

The Joint Committee authorized Representative Lewis and Senator Rucho to

engage a consultant to assist the Committee’s Republican leadership in drawing the remedial
plan. Representative Lewis and Senator Rucho immediately sent Dr. Hofeller an engagement
letter, which he signed the same day. Dr. Hofeller then downloaded the 2016 Plan, which he had
completed several days earlier, onto a state legislative computer.
65.

Democratic members of the Joint Committee were not allowed to consult with Dr.

Hofeller, nor were they allowed access to the state legislative computer on which he downloaded
the 2016 Plan.
66.

Dr. Hofeller later testified that the 2016 Plan followed the Committee’s Partisan

Advantage and Political Data criteria. See Hofeller Dep. at 129:14-15.
67.

On February 17, 2016, just one day after the Joint Committee adopted the official

criteria, Representative Lewis and Senator Rucho presented the 2016 Plan to the Committee. See
Joint Comm. Session, Feb. 17, 2016, at 11:8-15. During the presentation, Representative Lewis
discussed the partisan performance of the proposed districts and asserted that the 2016 Plan
would “produce an opportunity to elect ten Republicans members of Congress.” Id. at 12:3-7.
To prove it, Representative Lewis provided Committee members with spreadsheets showing the
partisan performance of the proposed districts in twenty previous statewide elections. E.g., id. at
17:4-18:23. The Committee then approved the 2016 Plan on a party-line vote.
68.

On February 19, 2016, the North Carolina House of Representatives debated the

2016 Plan. During the debate, Representative Lewis “freely acknowledge[d] that [he] sought
partisan advantage.” N.C. House Floor Session, Feb. 19, 2016, at 31:14-17. He defended the

16

 Partisan Advantage criterion by stating: “I think electing Republicans is better than electing
Democrats. So I drew this map in a way to help foster what I think is better for the country.” Id.
at 34:21-23.
69.

The North Carolina House and Senate approved the 2016 Plan on February 18

and February 19, 2016, respectively. No Democrat in either chamber voted for the 2016 Plan.
70.

In sworn testimony, Senator Rucho confirmed that the 2016 Plan “satisfied” “all

criteria,” including the criteria requiring a 10-3 partisan advantage for Republicans. Deposition
of Senator Robert A. Rucho (“Rucho Dep.”) 193:24-194:14 (Jan. 25, 2017).
D.

The 2016 Plan Achieves Its Intended Effect of Propelling Ten Republican
Congressional Candidates to Electoral Victory Every Two Years

71.

The 2016 Plan has achieved precisely its intended partisan effects—a guaranteed

10-3 Republican advantage in North Carolina’s congressional delegation.
72.

In the 2016 elections, Democratic congressional candidates in North Carolina

won a combined 47% of the statewide vote, and yet won only 3 of 13 seats (23%).
73.

The results are even more striking in 2018. Despite the blue wave that year, and

despite the fact the two-party statewide vote was essentially a tie, Democrats were unable to flip
a single seat. In fact, adjusting for a district that a Republican won in an uncontested race in
2018, Democrats won a majority of the statewide vote in the 2018 congressional elections, but
still won only 3 of the state’s 13 congressional seats.
74.

The results of the individual races in 2018 reveal how Legislative Defendants

achieved this remarkable feat. The following table shows each party’s share of the two-party
vote in the districts that the party won in 2018:1

1

For District 9, this table uses the results of the September 2019 special elections. To adjust for the uncontested
race in District 3, this table assigns the Democratic and Republican candidates the share of the two-party vote
received by each candidate in the special election held in District 3 in September 2019.

17

 District
1
4
12
2
3
5
6
7
8
9
10
11
13
Statewide Vote Share
Before Adjusting for
Uncontested Race
Statewide Vote Share
After Adjusting for
Uncontested Race
Percentage of Seats Won

75.

Democratic Vote Share
69.9%
75.1%
73.1%

Republican Vote Share

48.9%

52.8%
100.0%
57.0%
56.5%
56.5%
55.3%
51.0%
59.3%
60.4%
53.1%
51.1%

50.9%

49.1%

23.1%

76.9%

This table demonstrates the 2016 Plan’s packing and cracking in action. In the

three seats that Democrats won, the Democratic candidate won enormously lopsided victories,
earning between 69.9% and 75.1% of the vote in each of these districts. In contrast, victorious
Republican candidates won their seats by much smaller margins, winning between 51.0% and
60.4% of the vote in all contested districts. The 2016 Plan thus guaranteed that Democrats
would win three seats by very large margins, while Republicans would win the lion’s share of
seats by much smaller, although still comfortable, margins.
76.

Extensive expert analysis conducted for purposes of the federal partisan

gerrymandering challenge to the 2016 Plan confirms that the 2016 Plan is an intentional, extreme
partisan gerrymander that dilutes Democratic votes and prevents Democratic voters from
electing candidates of their choice. Dr. Jowei Chen, a professor of political science at the

18

 University of Michigan, generated 3,000 nonpartisan simulated maps respecting North
Carolina’s political geography and traditional redistricting principles including equal population,
contiguity and compactness, and avoiding splitting counties and VTDs. Dr. Chen concluded that
the 2016 Plan was extraordinarily anomalous and heavily gerrymandered, and that the
gerrymander caused a three to five seat shift in favor of the Republican Party. Dr. Jonathan
Mattingly, the chairman of the Duke Mathematics Department, generated over 24,000
nonpartisan simulated maps respecting North Carolina’s political geography and traditional
redistricting principles including equal population, contiguity and compactness, and avoiding
splitting counties and VTDs. Dr. Mattingly likewise concluded that the 2016 Plan was
extraordinarily anomalous and heavily gerrymandered, and that the gerrymander caused as many
as three seats to shift in favor of the Republican Party.
E.
77.

The 2016 Plan Packs and Cracks Democratic Voters in Every District
The 2016 Plan meticulously packs and cracks Democratic voters in each and

every district—without exception. The sections below describe some of the most egregious
examples of cracking and packing in each district.

19

 Congressional District 1
78.

District 1 is a packed Democratic district that stiches together the heavily

Democratic areas of Durham, Wilson, and Pitt Counties with a handful of rural Democratic
counties in the northeastern portion of the State.
79.

The following image (and others below) shows the district’s boundaries and the

partisanship of its VTDs using the results of the 2016 North Carolina Attorney General race,
with darker blue shading for the VTDs that voted more heavily Democratic, darker red for VTDs
that voted more heavily Republican, and lighter shading for VTDs that were closer to a tie:

80.

The 2016 Plan divides Pitt County for partisan ends, placing Pitt County’s most

Democratic VTDs in District 1 to the north, while putting the county’s more moderate and
Republican VTDs in District 3 to the south.
81.

The 2016 Plan does the same in Wilson County. In dividing Wilson County, the

plan builds a fence between Democratic and Republican voters, nearly straight down the middle

20

 of the county, putting the Democratic VTDs in District 1 to the east and the Republican VTDs in
District 2 to the west.
82.

The 2016 Plan’s packing of Democratic voters in District 1 has produced an

overwhelmingly Democratic district. In 2016 and 2018, the Democratic candidate won District 1
with 70.3% and 69.9% of the vote, respectively.
Congressional District 2
83.

District 2 cracks Democratic voters. It carefully avoids the most Democratic

areas of Wake County (to the west) and Wilson County (to the east), instead picking up only
those counties’ moderate and Republican-leaning VTDs. The map further cracks the Democratic
voters of Johnston County, splitting them between District 2 to the north and District 7 to the
south. The following image shows this extreme cracking of Democratic voters:

21

 84.

Legislative Defendants’ extreme gerrymandering of this district has ensured that it

remains a Republican seat. The Republican candidate won District 2 with 56.7% and 52.8% of
the vote in 2016 and 2018, respectively.
Congressional District 3
85.

Legislative Defendants likewise engineered District 3 to be a safe Republican

seat. Whereas District 1 was the recipient of all of Pitt County’s most Democratic VTDs,
District 3 contains all of Pitt County’s most Republican VTDs. The district further avoids a
handful of moderate and Democratic counties in eastern North Carolina.

86.

District 3 has performed as designed. The Republican candidate won uncontested

in 2018, and won 67.2% of the vote in 2016.

22

 Congressional District 4
87.

District 4 is a clear example of the subordination of traditional districting

principles to partisan ends. Dr. Hofeller admitted in sworn testimony that he intentionally drew
District 4 to be “predominantly Democratic.” Hofeller Dep. at 192:7-16. To achieve maximum
packing of Democratic voters, Legislative Defendants connected Wake County’s most
Democratic VTDs with the extremely Democratic VTDs in southern Durham County as well as
the entirety of Democratic-leaning Orange County. This allowed Wake County’s more
Republican VTDs to be put into District 2 to ensure a Republican seat.

88.

The result of this packing is that the Democratic candidate has won District 4 by

lopsided margins, winning 68.2% and 75.1% of the vote in 2016 and 2018, respectively.

23

 Congressional District 5
89.

Legislative Defendants constructed District 5 to minimize the voting power of

Democratic voters in Forsyth County. The 2016 Plan connects Winston-Salem’s predominantly
Democratic voters with far-flung rural communities to the west.

90.

Legislative Defendants succeeded in wasting the votes of the Democratic voters

of Forsyth County. District 5 elected a Republican by comfortable margins in the 2016 and 2018
elections, with 58.4% and 57.3% of the vote, respectively.

24

 Congressional District 6
91.

Greensboro is the third-largest city in North Carolina and home to one of the

largest concentrations of Democratic voters in the state. It also fell victim to one of the most
egregious examples of cracking in the 2016 Plan.
92.

As shown in the image below, the 2016 Plan splits Greensboro—and Guilford

County—and subsumes each half within a much larger concentration of Republican voters. The
southwestern half of Guilford County is now part of District 13 and the other half belongs to
District 6, cracking that causes both districts to be safe Republican seats. As noted previously,
the map also separates the Democratic voters in both of these districts from Forsyth County’s
Democratic voters in District 5.

25

 93.

In cracking Greensboro’s Democratic voters, Legislative Defendants split the

campus of North Carolina A&T State University, which is the largest historically black
university in the country. The district boundary cuts straight through the campus, placing the
west side of campus in District 13 and the east side of campus in District 6, as shown below:

94.

As a result of this cracking, the Republican candidate has won District 6 by

comfortable margins, with 59.2% and 56.5% of the vote in 2016 and 2018, respectively.

26

 Congressional District 7
95.

The 2016 Plan cracks Democratic voters in District 7. As already explained, at

the north end of District 7, the map cracks Johnston County’s Democratic voters between
Districts 7 and 2. Likewise, on the west side of District 7, the map cracks Democratic voters in
Bladen County, splitting the most heavily Democratic VTDs between Districts 7 and 9.

96.

As a result of this cracking, District 7 has remained a safe Republican seat. The

Republican candidate won District 7 with 60.9% and 56.5% of the vote in 2016 and 2018,
respectively.

27

 Congressional District 8
97.

Fayetteville is North Carolina’s sixth most-populous city and is heavily

Democratic. The 2016 Plan cracks Fayetteville’s Democratic voters nearly down the middle,
placing one group in District 8 and the other in District 9. District 8 then slices to the west,
picking up Republican voters in county after county until stopping halfway through Rowan
County, right before the district would hit the Democratic voters of Salisbury, who are carefully
excluded from District 8 and placed into District 13 instead.

98.

As a result of this cracking, District 8 has remained a safe Republican seat. The

Republican candidate won District 8 with 58.8% and 55.3% of the vote in 2016 and 2018,
respectively.

28

 Congressional District 9
99.

District 9 is a near mirror image of District 8. District 9 contains the other half of

Fayetteville’s Democratic voters and then, like District 8, stretches west to pick up Republican
voters. District 9 reaches into Mecklenburg County and picks up the “pizza slice” in
Mecklenburg County that contains the county’s most Republican-leaning VTDs. District 9’s
boundaries carefully exclude virtually all of Mecklenburg County’s Democratic VTDs, which
instead are packed into District 12.

100.

In the elections under the 2016 Plan, District 9 has bent but not broken, remaining

a Republican seat. Even the fact that District 9’s 2018 Republican candidate was involved in a
high-profile election-fraud scandal that resulted in the invalidation of the 2018 election results
for that district could not counterbalance the extreme gerrymander. The Republican candidate
won the September 2019 special election in District 9 with 51% of the vote.

29

 Congressional Districts 10 and 11
101.

The 2016 Plan egregiously cracks Asheville’s Democratic voters between

Districts 10 and 11 to create two safe Republican seats. This cracking dilutes the voting power
of Asheville’s Democratic voters and ensures that they cannot elect a candidate of their choice.

102.

The boundary between Districts 10 and 11 splits the campus of UNC Asheville in

two, even going so far as to place students living on different sides of the same residential
dormitory into different congressional districts, as shown in the image below:2

2

See Two UNC Asheville Dorms Are Bisected by Gerrymandered District Boundaries, Districks (Oct. 26, 2018),
https://blog.districks.com/2018/10/26/two-unc-asheville-dorms-are-bisected-by-gerrymandered-district-lines/.

30

 103.

The cracking of Asheville’s Democratic voters has been successful. The

Republican candidates in Districts 10 and 11 won both seats with between 58% and 63% of the
vote in the 2016 and 2018 elections.
Congressional District 12
104.

District 12 is another packed Democratic district. Dr. Hofeller admitted in sworn

testimony that he intentionally drew District 12 to be “predominantly Democratic.” Hofeller
Dep. 192:7-16. District 12 packs all of Mecklenburg County’s most Democratic VTDs, carefully
excluding the Republican-leaning “pizza slice” in the southern part of Mecklenburg County to
ensure that District 12 is an overwhelmingly Democratic district.

31

 105.

As a result of this packing, the Democratic candidate won District 12 with 67.0%

and 73.1% of the vote in 2016 and 2018, respectively.
Congressional District 13
106.

District 13 contains the other cracked half of Guilford County. District 13 groups

Guilford County’s heavily Democratic voters in and around Greensboro and High Point with
overwhelmingly Republican areas in Davidson, Davie, Rowan, and Iredell Counties, ensuring
that Guilford County’s Democratic voters cannot elect a Democrat.

32

 107.

The Republican candidate won District 13 in 2016 and 2018 with 56.1% and

53.1% of the vote, respectively.
F.

Legislative Defendants Did Not Draw Any District in the 2016 Congressional
Map to Comply with the Voting Rights Act

108.

Legislative Defendants and Dr. Hofeller expressly stated both during and after the

2016 redistricting process that they did not create any district in an effort to comply with the
Voting Rights Act (VRA). See Hofeller Dep. 145:9-146:8, 183:22-184:9.
109.

The 2016 Adopted Criteria provided as follows: “Data identifying the race of

individuals or voters shall not be used in the construction or consideration of districts.”
110.

Legislative Defendants stated over and over again that they were not making any

effort to draw districts on account of the VRA because they had concluded that the third Gingles
factor was not met with respect to any district. The third Gingles factor requires the existence of
legally sufficient white bloc voting against the candidate of choice of African Americans.

33

 Representative Lewis and Senator Rucho stated that, because they did not believe there was
sufficient racially polarized voting, they had concluded that the VRA did not require the creation
of any minority opportunity congressional districts. See Lewis Dep. at 38:15-19, 51:15-19, 86:24, 118:23-119:23, 179:13-21; Deposition of Representative David Lewis (“Lewis Dep. II”) at
242:9-13 (Apr. 28, 2017); Rucho Dep. at 31:2-8. Representative Lewis told the Joint Committee
that “the Harris opinion found that there was not racially polarized voting in the state, and
therefore, the race of the voters should not be considered.” Joint Comm. Session, Feb. 16, 2016,
at 27:11-14.
G.

The U.S. Supreme Court Holds that Partisan Gerrymandering Claims Are
Left to State Courts Applying State Constitutions

111.

In August 2016, the North Carolina Democratic Party, Common Cause, and more

than a dozen individual North Carolina voters sued Representative Lewis, Senator Rucho, and
other state defendants in federal court, asserting that the 2016 Plan was a partisan gerrymander in
violation of the federal constitution. Rucho v. Common Cause, 139 S. Ct. 2484, 2491 (2019).
112.

After a four-day trial, a three-judge federal district court unanimously concluded

that the General Assembly “drew and enacted the 2016 Plan with intent to subordinate the
interests of non-Republican voters and entrench Republican control of North Carolina’s
congressional delegation.” Common Cause v. Rucho, 279 F. Supp. 3d 587, 672 (M.D.N.C.
2018). The court further found that “the 2016 Plan achieved the General Assembly's
discriminatory partisan objective.” Id. The court therefore held the 2016 Plan violated the
Fourteenth Amendment’s Equal Protection Clause and Article I of the U.S. Constitution. The
court further held, with one dissenter, that the 2016 Plan also violated the First Amendment. Id.
113.

The U.S. Supreme Court reversed, holding that partisan gerrymandering claims

are not justiciable under the federal constitution. Rucho, 139 S. Ct. at 2506-07. Nonetheless, the

34

 Court observed that partisan gerrymanders like the 2016 Plan are “incompatible with democratic
principles.” Id. And, of particular relevance here, the Court recognized that the 2016 Plan is
“highly partisan, by any measure.” Id. at 2491. While the decision ultimately holds that
“partisan gerrymandering claims present political questions beyond the reach of the federal
courts,” the Court made clear that its conclusion “does not condone excessive partisan
gerrymandering[,] [n]or does [its] conclusion condemn complaints about districting to echo into
a void.” Id. at 2507 (emphasis added).
114.

Instead, the U.S. Supreme Court noted that “[t]he States . . . are actively

addressing the issue on a number of fronts” under state constitutional provisions. See id. The
Court made clear that “[p]rovisions in state statutes and state constitutions can provide standards
and guidance for state courts to apply.” Id. (emphases added).
H.

The Superior Court Strikes Down North Carolina’s State Legislative Maps
Under the North Carolina Constitution

115.

On September 3, 2019, a three-judge panel of this Court unanimously invalidated

North Carolina’s state House and state Senate 2017 redistricting plans (“2017 Plans”) under the
North Carolina Constitution. See Common Cause v. Lewis, 18-CVS-014001, slip. op. at 10.
116.

The Common Cause Court explained that North Carolina’s state legislative maps

and the 2016 Congressional Plan “arose in remarkably similar circumstances.” Id. at 298.
“[B]oth the 2016 Congressional map and the 2017 legislative maps were required after a federal
court declared existing maps unconstitutional; both were drawn under the direction of many of
the same actors working on behalf of the Republican-controlled General Assembly; both were
drawn by Dr. Thomas Hofeller; both were drawn in large part before the General Assembly’s
redistricting committee met and approved redistricting criteria; and both, as has been found . . .

35

 with respect to the 2017 legislative maps, were drawn with the intent to maximize partisan
advantage and, in fact, achieved their intended partisan effects.” Id.
117.

The Court found that the 2017 state legislative maps “do not permit voters to

freely choose their representative, but rather representatives are choosing voters based upon
sophisticated partisan sorting.” Id. at 10.
118.

The Court determined that the plaintiffs had standing to challenge the state

legislative maps, and that their challenges were justiciable under the North Carolina Constitution.
Id. at 292-98, 331-41. And, on the merits, the Court held that the state legislative maps were
partisan gerrymanders that violated the North Carolina Constitution’s Free Elections Clause, Art.
I, § 10, Equal Protection Clause, Art. I, § 19, and Free Speech and Assembly Clauses, Art. I, §§
12, 14. See Common Cause, 18-CVS-014001, slip. op. at 7-10.
119.

The 2016 Plan violates the North Carolina Constitution in the exact same ways as

the 2017 state legislative maps that were recently invalidated in Common Cause.
COUNT ONE
Violation of the North Carolina Constitution’s
Free Elections Clause, Art. I, § 10
120.

Plaintiffs hereby incorporate all other paragraphs as if fully set forth herein.

121.

Article I, Section 10 of the North Carolina Constitution, which has no counterpart

in the U.S. Constitution, provides that “All elections shall be free.”
122.

North Carolina’s Free Elections Clause traces its roots to the 1689 English Bill of

Rights, which declared that “Elections of members of Parliament ought to be free.” Bill of
Rights 1689, 1 W. & M. c. 2 (Eng.); see John V. Orth, North Carolina Constitutional History, 70
N.C. L. Rev. 1759, 1797-98 (1992).
123.

This provision of the 1689 English Bill of Rights was a product of the king’s

efforts to manipulate parliamentary elections, including by changing the electorate in different
36

 areas to achieve “electoral advantage.” J.R. Jones, The Revolution of 1688 in England 148
(1972). The king’s efforts to maintain control of parliament by manipulating elections led to a
revolution. After dethroning the king, the revolutionaries called for a “free and lawful
parliament” as a critical reform. Grey S. De Krey, Restoration and Revolution in Britain: A
Political History of the Era of Charles II and the Glorious Revolution 241, 247-48, 250 (2007).
124.

North Carolina has strengthened the Free Elections Clause since its adoption to

reinforce its principal purpose of preserving the popular sovereignty of North Carolinians. The
original clause, adopted in 1776, provides that “elections of members, to serve as
Representatives in the General Assembly, ought to be free.” N.C. Declaration of Rights, VI
(1776). Nearly a century later, North Carolina revised the clause to state that “[a]ll elections
ought to be free,” thus expanding the principle to include all elections in North Carolina. N.C.
Const. art. I, § 10 (1868). And another century later, North Carolina adopted the current version
which provides that “[a]ll elections shall be free.” As the North Carolina Supreme Court later
explained, this change was intended to “make [it] clear” that the Free Elections Clause and the
other rights secured to the people by the Declaration of Rights “are commands and not mere
admonitions” to proper conduct on the part of the government. N.C. State Bar v. DuMont, 304
N.C. 627, 635, 639, 286 S.E.2d 89, 97 (1982) (internal quotations omitted).
125.

Based on the text and history of North Carolina’s Free Elections Clause, “the

meaning of the Free Elections Clause is that elections must be conducted freely and honestly to
ascertain, fairly and truthfully, the will of the people. This . . . is a fundamental right of the
citizens enshrined in our Constitution’s Declaration of Rights, a compelling governmental
interest, and a cornerstone of our democratic form of government.” Common Cause v. Lewis,
18-CVS-014001, slip. op. at 298-306.

37

 126.

“[P]artisan gerrymandering . . . strikes at the heart of the Free Elections Clause.”

Id. at 305. “[E]xtreme partisan gerrymandering—namely redistricting plans that entrench
politicians in power, that evince a fundamental distrust of voters by serving the self-interest of
political parties over the public good, and that dilute and devalue votes of some citizens
compared to others—is contrary to the fundamental right of North Carolina citizens to have
elections conducted freely and honestly to ascertain, fairly and truthfully, the will of the people.”
Id. at 302. Simply put, “[e]lections are not free when partisan actors have tainted future elections
by specifically and systematically designing the contours of the election districts for partisan
purposes and a desire to preserve power.” Id. at 305.
127.

The 2016 Plan violates the Free Elections Clause in the same way as the

invalidated 2017 state legislative plans. In creating the 2016 Plan, Legislative Defendants
“specifically and systematically design[ed] the contours of the election districts for partisan
purposes and a desire to preserve power.” Id. at 305. The 2016 Plan “unlawfully seek[s] to
predetermine election outcomes in specific districts” and across the state as a whole. Id.
Because of Legislative Defendants’ extreme partisan gerrymandering of the 2016 Plan,
congressional elections in North Carolina are not “conducted freely and honestly to ascertain,
fairly and truthfully, the will of the people.” Id. at 302.
128.

Legislative Defendants openly admitted all of this with respect to the 2016 Plan.

They expressly stated—and even made an official part of the 2016 Adopted Criteria—that they
were endeavoring to maintain “Partisan Advantage” such that, for each election under the new
map, Republicans would win 10 seats in North Carolina’s congressional delegation and
Democrats would win only 3 seats. The 2016 Adopted Criteria on their face violate the Free
Elections Clause.

38

 COUNT TWO
Violation of the North Carolina Constitution’s
Equal Protection Clause, Art. I, § 19
129.

Plaintiffs hereby incorporate all other paragraphs as if fully set forth herein.

130.

Article I, Section 19 of the North Carolina Constitution provides in relevant part

that “[n]o person shall be denied the equal protection of the laws.”
131.

North Carolina’s Equal Protection Clause affords broader protections to its

citizens in the voting rights context than the U.S. Constitution’s equal protection provisions. See
Stephenson v. Bartlett, 355 N.C 354, 376-81 & n.6, 562 S.E.2d 377, 393-95 & n.6 (2002);
Blankenship v. Bartlett, 363 N.C. 518, 523-24, 681 S.E.2d 759, 763 (2009).
132.

Irrespective of its federal counterpart, North Carolina’s Equal Protection Clause

protects the right to “substantially equal voting power.” Stephenson, 355 N.C. at 379, 562
S.E.2d at 394. “It is well settled in this State that the right to vote on equal terms is a
fundamental right.” Id. at 378, 562 S.E.2d at 393 (internal quotation marks omitted). Thus, the
North Carolina Supreme Court has enforced the State’s Equal Protection Clause to invalidate
other redistricting schemes, such as the combined use of single-member and multi-member
districts in a redistricting plan that “impermissibly distin[guished] among similarly situated
citizens” and thus “necessarily implicate[d] the fundamental right to vote on equal terms.” Id. at
377-78, 562 S.E.2d at 393.
133.

Partisan gerrymandering violates North Carolina’s Equal Protection Clause.

“[P]artisan gerrymandering runs afoul of the State’s obligation to provide all persons with equal
protection of law because, by seeking to diminish the electoral power of supporters of a
disfavored party, a partisan gerrymander treats individuals who support candidates of one
political party less favorably than individuals who support candidates of another party.”
Common Cause v. Lewis, 18-CVS-014001, slip. op. at 307.
39

 134.

The 2016 Plan violates North Carolina’s Equal Protection Clause in the same

ways as the invalidated 2017 state legislative plans. In drawing the 2016 Plan, Legislative
Defendants “acted with the intent, unrelated to any legitimate legislative objection, to classify
voters and deprive citizens of the right to vote on equal terms.” Id. at 312. The 2016 Plan’s
intentional classification of, and discrimination against, Democratic voters is plain. The
Republican leaders of the Joint Committee explicitly used “partisan advantage” and “political
data” as criteria in drawing the congressional district lines. Specifically, the 2016 Adopted
Criteria required drawing congressional district lines to give Republicans control of 10 of the 13
congressional seats. See id. And Legislative Defendants succeeded in this goal. Republicans
maintained control of 10 of the 13 seats following the 2016 and 2018 congressional elections,
despite losing the statewide vote in 2018. The Joint Committee’s intent is also laid bare by the
packing and cracking of particular Democratic communities.
135.

These efforts have produced discriminatory effects for Plaintiffs and other

Democratic voters. On a statewide basis, Democrats receive far fewer congressional seats than
they would absent the gerrymander. The grossly disproportionate number of seats that
Republicans have won and will continue to win in the congressional delegation relative to their
share of the statewide vote cannot be explained or justified by North Carolina’s political
geography or any legitimate redistricting criteria. The packing and cracking of Democratic
voters under the 2016 Plan burdens the representational rights of Democratic voters individually
and as a group and discriminates against Democratic candidates and organizations individually
and as a group. “[P]acking dilutes the votes of Democratic voters such that their votes, when
compared to the votes of Republican voters, are substantially less likely to ultimately matter in
deciding the election results.” Common Cause, 18-CVS-014001, slip. op. at 314. And “the

40

 entire purpose of cracking likeminded voters across multiple districts is so they do not have
sufficient ‘voting power’ to join together and elect a candidate of their choice.” Id. Legislative
Defendants can offer no legitimate justification for their overriding partisan intent in drawing the
2016 Plan.
COUNT THREE
Violation of North Carolina Constitution’s
Freedom of Speech and Freedom of Assembly Clauses, Art. I, §§ 12 & 14
136.

Plaintiffs hereby incorporate all other paragraphs as if fully set forth herein.

137.

Article I, § 12 of the North Carolina Constitution provides in relevant part: “The

people have a right to assemble together to consult for their common good, to instruct their
representatives, and to apply to the General Assembly for redress of grievances.”
138.

Article I, § 14 of the North Carolina Constitution provides in relevant part:

“Freedom of speech and of the press are two of the great bulwarks of liberty and therefore shall
never be restrained.”
139.

“[T]he North Carolina Constitution’s Free Speech Clause provides broader rights

than does federal law.” Common Cause, 18-CVS-014001, slip. op. at 318. “In the context of
partisan gerrymandering, it is especially important that North Carolina courts give independent
force to North Carolina’s constitutional protections.” Id. at 319.
140.

“Voting for the candidate of one’s choice and associating with the political party

of one’s choice are core means of political expression protected by the North Carolina
Constitution’s Freedom of Speech and Freedom of Assembly Clauses.” Id. at 320. “Voting
provides citizens a direct means of expressing support for a candidate and his views.” Id. And
“[j]ust as voting is a form of protected expression, banding together with likeminded citizens in a
political party is a form of protected association.” Id. at 321.

41

 141.

Irrespective of the U.S. Constitution, the 2016 Plan violates Article I, § 14 of the

North Carolina Constitution by “burden[ing] protected expression based on viewpoint by making
Democratic votes less effective.” Common Cause, 18-CVS-014001, slip. op. at 322.
“Legislative Defendants identified certain preferred speakers (Republican voters), while
targeting certain disfavored speakers (Plaintiffs and other Democratic voters) for disfavored
treatment” because of disagreement with the views they express when they vote. Id. (alteration
and internal quotation marks omitted). Just as they did in creating the 2017 state legislative
plans, “Legislative Defendants analyzed the voting histories of every VTD in North Carolina,
identified VTDs that favor Democratic candidates, and then singled out the voters in those VTDs
for disfavored treatment by packing and cracking them into districts with the aim of diluting their
votes and, in the case of cracked districts, ensuring that these voters are significantly less likely,
in comparison to Republican voters, to be able to elect a candidate who shares their views.” Id.
at 323. “The fact that Democratic voters can still cast ballots under gerrymandered maps
changes nothing. The government unconstitutionally burdens speech where it renders disfavored
speech less effective, even if it does not ban such speech outright.” Id. at 323.
142.

Irrespective of the U.S. Constitution, the 2016 Plan independently violates Article

I, § 12 because it “severely burden[s]—if not outright preclude[s]” the ability of Democratic
voters to associate by eroding their ability to “instruct” and “obtain redress” from their members
of Congress on issues important to them. Id. at 326-27.
143.

Irrespective of the U.S. Constitution, the 2016 Plan independently violates

Article 1, Sections 12 and 14 of the North Carolina Constitution by retaliating against Plaintiffs
and other Democratic voters based on their exercise of political speech. The 2016 Plan takes
adverse action against Plaintiffs and other Democratic voters, retaliates against their protected

42

 speech and conduct, and would not have taken the adverse action but for Legislative Defendants’
retaliatory intent to pack and crack Democratic voters because of their prior political speech and
associations.
144.

There is no legitimate state interest in discriminating and retaliating against

Plaintiffs because of their political viewpoints, voting histories, and affiliations. Nor can the
2016 Plan be explained or justified by North Carolina’s geography or any legitimate redistricting
criteria.
PRAYER FOR RELIEF
WHEREFORE, Plaintiffs respectfully request that this Honorable Court enter judgment
in their favor and against Defendants, and;
a.

Declare that the 2016 Plan is unconstitutional and invalid because it violates the

rights of Plaintiffs and all Democratic voters in North Carolina under the North Carolina
Constitution’s Free Elections Clause, Art. I, § 10; Equal Protection Clause, Art. I, § 19; and
Freedom of Speech and Freedom of Assembly Clauses, Art. I, §§ 12 & 14;
b.

Enjoin Defendants, their agents, officers, and employees from administering,

preparing for, or moving forward with the 2020 primary and general elections for Congress using
the 2016 Plan;
c.

Establish a new congressional districting plan that complies with the North

Carolina Constitution, if the North Carolina General Assembly fails to enact new congressional
districting plans comporting with the North Carolina Constitution in a timely manner;
d.

Enjoin Defendants, their agents, officers, and employees from using past election

results or other political data in any future redistricting of North Carolina’s congressional

43

 districts to intentionally dilute the voting power of citizens or groups of citizens based on their
political beliefs, party affiliation, or past votes.
e.

Enjoin Defendants, their agents, officers, and employees from otherwise

intentionally diluting the voting power of citizens or groups of citizens in any future redistricting
of North Carolina’s congressional districts based on their political beliefs, party affiliation, or
past votes.
f.

Grant Plaintiffs such other and further relief as the Court deems just and

appropriate.

44

 PATTERSON HARKAVY LLP

Eng? 

Burton Craige, NC Bar No/9180
Narendra K. Ghosh, NC Bar No. 37649
Paul E. Smith, NC Bar No. 45014

100 Europa Dr., Suite 420

Chapel Hill, NC 27517

(919) 942-5200

bcraige@pathlaw.com
nghosh@path1aw.com
psmith@pathlaw.com

0unsel_ for Plaintg'?fs

ARNOLD AND PORTER
KAYE SCHOLER LLP

R. Stanton Jones*

Elisabeth S. Theodore*

Daniel F. Jacobson*

William C. Perdue*

Sara Murphy D?Amico*
Graham W. White*

601 Massachusetts Avenue NW
Washington, DC 20001-3743
(202) 954-5000
stanton.jones@arnoldporter.com

PERKINS COIE LLP

Marc E. E1ias*

Aria C. Branch*

700 13th Street NW
Washington, DC 20005-3960
(202) 654-6200
melias@perkinscoie.com

Abha Khanna*

1201 Third Avenue, Suite 4900
Seattle, WA 98101-3099
(206) 359-8000
akhanna@perkinscoie.com

Counsel for Plainti?fs

Applications for Pro Hac Vice
admissions forthcoming

45

VERIFICATION

I, AMY CLARE OSEROFF, hereby state that I am 21 Plaintiff in the above-titled action,

that I have read the contents of the foregoing VERIFIED and that the contents

Amy/ Clare 

Sworn and subscribed before me this the 2' 7 day of September, 2019.

wag/W-

NOW Public

Name: ?n?bm/
95

therein are true and accurate as they pertain to me.

 

My commission expires:

VERIFICATION

I, REBECCA HARPER, hereby state that I am a Plaintiff in the above-titled action, that I
have read the contents of the foregoing VERIFIED COMPLAINT, and that the contents therein

are true and accurate as they pertain to me.

      

4
.. . -

Rebecca Harper 7? I. ?by

Sworn and subscribed before me this the day of September, 2019.

 

 

 

 

KISNER DOLUW KW)
NOTARY PUBUC Notary pubgc
Wake County
North Carolina 4~ . 
My Commission Expires December 27,2021 Name: KC 5m 

 

 

My commission expires: 

 

 

VERIFICATION

I, DONALD ALLAN RUMPH, hereby state that I am a Plaintiff in the above-titled
action, that I have read the contents of the foregoing VERIFIED COMPLAINT, and that the

contents therein are true and accurate as they pertain to me.

Warm

Doh?ld Allan Rumph

Sworn and subscribed before me this the 24th day of September, 2019.

?Mpu'm Notary Pgblic

Pitt NC
Nmez?u??g?m?

My commission expires: 21+, 2023

VERIFICATION

I, JOHN BALLA, hereby state that I am a Plaintiff in the above?titled action, that I have
read the contents of the foregoing VERIFIED COMPLAINT, and that the contents therein are

true and accurate as they pertain to me.

  


John 

Sworn and subscribed before me this the 2 1 day of September, 2019.



Public
Name; #06106) C16 id,?


My commission expires: 3

 

JESSICA um;

WWSTAIEGWCAW
MY 51102023

 

 

 

Acknowledgement

STATE OF NO

COUNTY OF 
I certify that personally appeared before me this day, acknowledging -
'l

to me that he or she signed the foregoing document: t? 

Name or description of attached document U?l?i??i?m tn NC .
I further certify that (select one of the following identi?cation options):

 

El I have personal knowledge of the identity of the principal(s)

I have seen satisfactory evidence of the principal?s identity, by a current state or
federal identi?cation with the principal?s photograph in the form of a mama?

type of identi?catlon

A credible witness, has sworn or af?rmed to me the
name of credible witness

identity of the principal, and that he or she is not a named party to the foregoing
document, and has no interest in the transaction.

Date: 
3-. HRS 0,6



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7.5, 1 5?05:- My commission expires: 19.06?
7?3. of *5
Buck-lg:-

VERIFICATION

I, LILY NICOLE QUICK, hereby state that I am 3. Plaintiff 'in the above-titled 'aetien,'that
.Irhave read the contents of the foregeing VERIFIED and that the .?eentents'

therein are true and accurate asthey pertain to. me.

  

 

A .
Sworn and subscribed before me. this the g) of Sisster?berat 2019.

4247::

Net/' Public 
a) 

My commission expi es: I. 

 
 

 

Sep 25 1906:0061 p.1

VERIFICATION

I. GETTYS COHEN 311., hereby state that I am 2: Plaintiff in the above-titled action. that
I have read the contents of the foregoing VERIFIED CONIPLAINT, and that the contents

therein are true and accurate as the},r pertain to me.

VQU

Gems Cohen Jr. 

 

l?

Sworn and subscribed before me this the a day of September, 2019.

rt\7\ rt a. ELI:

Not-34:13 Public

MAHGAHITA CORONA MARTINEZ Name. 7 ?wzm??m?k? 

NOTARY PUBLI 
JOHNSTON OUNT: NC A comm/1Q expires

 

  

 

 

 

VERIFICQHON

I, JACKSON THOMAS DUNN, JR hereby state that I am a Plainti? 1n the above-titled

actioa, that I have read the contents of the foregomg VERIFIED COMPLAINT, and that the

contents therein are true and accurate as they pertain to me.

 

     

.2

Sworn and subscribed before me this it day of September, 2019.

 

War"

Notary Public
Mania-41:55:; tog/Mg at 
My commission expires9,498 
00?3?6:

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SIDE 173 deg

 HANKS 828 687 0293 092?24/2019 13:18 #519 

Plaintiff Mark S. Peters is a retired Physician Assistant residing in Fletcher,
North Carolina, within Congressional District 10. Mr. Peters is registered as
an unaffiliated voter and has consistently voted for Democratic candidates
for the U.S. House of Representatives. In drawing the 2016 maps, the
General Assembly cracked Asheville?s Democratic voters between Districts
10 and 11 to make each district more favorable to Republican candidates.
In the 2018 elections, the Republican candidate won District 10 with over

59% of the vote.

Mark Peters
Como Bus/?x 

Seek-e NorJrM 
Kali KMcDill

. 
NOTARY PUBLIC -- 

BuncombeLNC

m?i CW ql an? i ?1

 

 

 

 

 

VERIFICATION

I, JOSEPH GATES, hereby state that I am a Plaintiff in the above-titled action, that I

have read the contents of the foregoing VERIFIED COMPLAINT, and that the contents therein

are true and accurate as they pertain to me.

Jo ph Gates

Sworn and subscribed before me this the a& day of September, 2019.

Notary Pu i

 

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VERIFICATION

I, VIRGINIA BRIEN, hereby state that I am a Plaintiff in the above?titled action, that I

have read the contents of the foregoing VERIFIED COMPLAINT, and that the contents therein

are true and accurate as they pertain to me.

??g/omz? ELK

Virginia-Brien

 

Sworn and subscribed before me this the LI day of September, 2019.

 

 

   

Notary Public
I \Im. 2 
{?85 NamciD?Tcommission expires?253? a 
. ?29? 


VERIFICATION

I, DAVID DWIGHT BROWN, hereby state that I am a Plaintiff in the above-titled

action, that I have read the contents of the foregoing VERIFIED COMPLAINT, and that the

contents therein are true and accurate as they pertain to me.



David 9Dwight Brown

Sworn and subscribed before me this the i day of September, 2019.

JV DHUHSJ 3 K5 

Notary Public- North Carolina
Name: UVJDA C0 9?5?

  

 

 
    
     

. Guiiford County
My Commission Expires Apni 7 2021

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My commission expires: PIL 2909/1